Bartolo v Doutta Galla Aged Services Ltd (No 2)
[2015] FCCA 345
•19 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BARTOLO v DOUTTA GALLA AGED SERVICES LTD (No.2) | [2015] FCCA 345 |
| Catchwords: INDUSTRIAL LAW – Alleged adverse action against the Applicant in contravention of ss.340 and 352 of the Fair Work Act 2009 (Cth) – whether the Applicant made a complaint or inquiry – whether initiating an investigation constituted adverse action – whether action was taken for a prohibited reason – application dismissed. |
| Legislation: Accident Compensation Act (1985) (Vic) Fair Work Act 2009 (Cth), ss.336(1), 340, 341, 342, 352, 360, 361 Occupational Health and Safety Act (2004) (Vic) Doutta Galla Aged Services Ltd Nurses Enterprise Agreement 2009 |
| Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd (2011) 201 IR 441 Shea v Energy Australia Services Pty Ltd [2014] FCAFC 167 |
| Applicant: | JOHN BARTOLO |
| Respondent: | DOUTTA GALLA AGED SERVICES LTD (ABN 96 088 097 929) |
| File Number: | MLG 513 of 2013 |
| Judgment of: | Judge Whelan |
| Hearing dates: | 21 - 23 July 2014 & 25 August 2014 |
| Date of Last Submission: | 25 August 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 19 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr J McKenna |
| Solicitors for the Applicant: | Nowicki Carbone |
| Counsel for the Respondent: | Mr N Harrington |
| Solicitors for the Respondent: | Colin Biggers & Paisley |
ORDERS
The Application – Fair Work Division filed 18 April 2013 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 513 of 2013
| JOHN BARTOLO |
Applicant
And
| DOUTTA GALLA AGED SERVICES LTD (ABN 96 088 097 929) |
Respondent
REASONS FOR JUDGMENT
This is an application by Mr JOHN BARTOLO (“the Applicant”)
for remedies arising from alleged contraventions of ss.340 and 352
of the Fair Work Act 2009 (Cth) (“the Act”) by DOUTTA GALLA AGED SERVICES LTD (“the Respondent”).[1] In the original pleadings, the Applicant also claimed a breach of the implied term of trust and confidence in his contract of employment. This was later abandoned in light of the decision of the High Court in Commonwealth Bank of Australia v Barker (2014) 312 ALR 356.[2]
[1] Application – Fair Work Division filed 18 April 2013.
[2] Order by consent made in Chambers on 29 October 2014.
Background
The Respondent is an aged-care provider that operates nine aged-care facilities, eight of which are in the greater Melbourne area and one of which is at Shepparton. The Applicant was employed from about
21 December 2009 in the role of Director of Residential Care. He had previously been a registered nurse although he had allowed his registration to lapse, and had been employed in Canada as a care coordinator in aged services. In his role, the Applicant was part of the Respondent’s executive management team. The Applicant was employed specifically to drive change within the Respondent’s business and to improve the financial position of the Respondent. Many of those changes were unpopular with the staff. During the period of the employment, the Applicant received increases in his remuneration and also bonus payments. He entered into a new contract with the Respondent in July 2012, which had a term of five years.[3]
[3] Affidavit of John Bartolo filed 4 June 2014, at Annexure “JB-2”.
As Director of Residential Care, the Applicant reported directly
to the Chief Executive Officer of the Respondent (“CEO”),
Mr MARK ANDERSON (“Mr Anderson”). The Applicant was responsible for managing 580 employees employed in the eight facilities. He also oversaw the accreditation process and was responsible for compliance with Aged Care Standards. The Respondent began making a profit in 2012. The Applicant played a not insignificant role in achieving that.
The 16 August 2012 email
One 16 August 2012 at 3.44 p.m., an email was sent addressed to
‘All Staff’ via the Respondent’s email system which made certain allegations against the Applicant.[4] The email was purported to have been sent by the Manager at the Footscray facility. The email appears to have been sent to ‘All Staff’ and to members of the Board of the Respondent as well as some outside entities.
[4] Ibid, at Annexure “JB-3”.
The email came to the attention of Mr GEORGE KOULIS
(“Mr Koulis”) who was, and still is, the Director of Finance and Corporate Services for the Respondent. He reported the email and its contents to Mr Anderson, who was, at the time, the CEO for the Respondent. Mr Anderson telephoned the Applicant who was in his motor vehicle on his way to corporate headquarters. The Applicant drove to the Footscray facility and reported that the Manager’s office was locked and there was no one present in it.
It was the evidence of Mr Koulis that, after speaking to the Applicant, he then contacted the Respondent’s IT manager. He asked the IT manager what they could do to stop the email from going viral and discussed with him different options about how they could contain the email. Mr Koulis then went back to Mr Anderson’s office and told him that the IT manager was going to try and retract the email.
Mr Anderson decided to send a short email to all staff advising them that the email was not an official email from the Respondent and that it should be deleted. The email stated:
Dear All,
You will have received two emails from the Manager – Footscray at 3.38pm and 3.44pm this afternoon.
Please ignore these emails as they have been sent by someone who has “hacked” into our system.
Regards
Mark Anderson[5]
[5] Affidavit of Mark Anderson filed 7 July 2014, at Annexure “MA-11”.
Mr Koulis stated that he then went back and spoke to the IT manager,
who was unsure if what he had done had worked or not and they discussed what else could be done. Mr Koulis stated that he and
the IT manager started working through various ideas as to how to isolate the email without losing any evidence which might assist them in finding its origin. It was his evidence that he worked back until about 8.00 p.m. and that when he left, the IT manager was still there.
He communicated with him after he left the office and received updates from him. The IT manager told him the next day that he had not left the office until around midnight. It was Mr Anderson’s evidence that copies of the 16 August 2012 email were deleted from inboxes wherever possible, and that 90% were removed within approximately the first four hours.
It was the Applicant’s evidence that, shortly after visiting the
Footscray facility, he attended at the Respondent’s corporate office and spoke to Mr Anderson and Mr Koulis. He requested that they take steps to remove the 16 August 2012 email from the Respondent’s server and email system. The Applicant asked Mr Anderson and Mr Koulis to shut down the server and remove the email from all email accounts. It was his evidence that Mr Anderson and Mr Koulis refused this request.
In his oral evidence, the Applicant stated that Mr Koulis said that the email had already gone viral and Mr Anderson told him “I’ve got a business to run. I’m not going to shut down the server”.[6] The Applicant stated that he again telephoned Mr Anderson at about 7.00 p.m. the same day to request that the email be removed from the Respondent’s server. This request was again denied. The Applicant further stated that he attended the Respondent’s corporate office on 17 August 2012 and met with Mr Anderson to again request that the email be removed from the Respondent’s server and that this was again refused. When the actions taken by Mr Anderson and Mr Koulis were put to him,
the Applicant stated, “[i]t wasn’t good enough … What he should have done was shut the server down”.[7]
[6] Transcript of Proceedings, 21 July 2014, p.94 at line 28.
[7] Ibid, p.98 at lines 14 and 18-19.
In his evidence, Mr Anderson denied that he had told the Applicant that they would not take action to remove the email from the system.
He recalled meeting with the Applicant after his return from the Footscray facility but could not recall a further telephone conversation with him on the evening of 16 August 2012. He did recall meeting with the Applicant the following day. Mr Anderson agreed that he had not personally removed any emails from the server, but that
“[t]he responsibility for IT is with Mr Koulis and he and the IT manager worked on that on the afternoon and evening of the 16th”.[8]
[8] Transcript of Proceedings, 22 July 2014, p.230 at lines 4-6.
Mr Anderson stated that, over the weekend of 18 and 19 August 2012, he raised the issue of the email, the allegations contained therein and an investigation into the incident with Mr BRUCE ALLAN MILDENHALL (“Mr Mildenhall”), the Chairman of the Board of Directors of the Respondent (“the Board”). In these discussions, consideration was given as to whether the allegations in the email should be addressed given that the email was “unsigned, malicious and inconsistent with [the] grievance and complaints procedure”.[9] Due to the nature of the allegations in the email and the persistent rumours that
had been circulating about the Applicant, a recommendation was
made to Mr Anderson by Mr Mildenhall, in consultation with the other directors, that an:
[I]ndependent, legally qualified, investigator be appointed to address the allegations in the email, investigate who constructed the email and distributed it illegally and importantly advise the Board on how to address the situation from a legal point of view, depending on the investigation.[10]
[9] Affidavit of Mark Anderson filed 7 July 2014, p.13 at para.87.
[10] Affidavit of Mark Anderson filed 7 July 2014, p.14 at para.88.
Mr Mildenhall gave evidence that he had received the email of
16 August 2012. After receiving the email, he contacted
Mr RIC BIRKETT (“Mr Birkett”) from Aitken Partners, Lawyers to “have the matter independently assessed and to obtain legal advice regarding the allegations in the email”.[11] Mr Mildenhall stated that one of his concerns at that time was the reputation of the Respondent.
Over the weekend following receipt of the email, he had a number of conversations with Mr Anderson. Mr Mildenhall was aware, at some stage, that the Applicant had contacted The STOPline, a private company providing “whistleblowing programs and related hotline, investigative and forensic technology services” (“STOPline”).[12] To the best of his recollection, Mr Mildenhall was not aware that a STOPline investigation or complaint had been lodged before the Aitken Partners’ investigation was initiated. He stated that it was not part of his consideration when the investigation was initiated: he viewed it as an “independent process”.[13] Mr Mildenhall was subsequently told that there were some conflict issues with respect to the use of STOPline.
Mr Mildenhall agreed that he wanted Aitken Partners to be engaged directly by the Board and that that would allow the Board to have control over the terms of the retainer. He also accepted that, if STOPline were conducting the investigation, he would have a lesser degree of control over the investigation. Mr Mildenhall disagreed with the proposition that he did not want STOPline conducting
the investigation, stating, “STOPline is an independent process.
It’s activated by … actions outside … my preference or my control”.[14][11] Affidavit of Bruce Allan Mildenhall filed 8 July 2014, p.2 at para.7.
[12] Transcript of Proceedings, 23 July 2014, p.310 at line 46.
[14] Ibid, p.310 at line 46 and p.311 at line 1.
On the morning of Monday 20 August 2012, there was a meeting of the executive team. Mr Anderson informed the members of the recommendation made to him by the Board and of his decision that there should be an independent investigation and that both he and the Applicant should be excluded from participating in the investigation.
Mr Anderson agreed that, at that meeting, the Applicant advised the executive team that he had contacted STOPline because he believed they had the appropriate IT experience to undertake an investigation.
It was the Applicant’s evidence that on Saturday 18 August 2012,
he had called STOPline in accordance with the Respondent’s whistleblowing and complaints policy. He was unable to speak to anyone at STOPline on that occasion. The Applicant again telephoned on the morning of Monday 20 August 2012 and, according to his evidence, told a representative about the 16 August 2012 email and his request to Mr Anderson and Mr Koulis to have it removed. It was the Applicant’s evidence that he told STOPline he wanted to make a complaint about Mr Anderson and Mr Koulis.
The Applicant also stated that on 21 August 2012, in a conversation with Ms SHARON ELIZABETH ROBINSON (“Ms Robinson”),
the Respondent’s Human Resources (“HR”) manager, he was asked by
Ms Robinson to withdraw his complaint to STOPline against
Mr Anderson. He claimed that she told him “[t]hings will get very ugly for you”.[15] When it was put to her, Ms Robinson denied having any such conversation with the Applicant, stating “[n]o, that’s not correct”.[16]
[15] Affidavit of John Bartolo filed 4 June 2014, p.5 at para.25.
[16] Transcript of Proceedings, 22 July 2014, p.181 at line 29.
In his evidence, Mr Anderson stated that he was never advised that there had been a complaint made to STOPline. The Applicant advised him that he had contacted STOPline because he believed they had the appropriate IT experience to undertake the investigation. It was
Mr Anderson’s evidence that, at the time, he thought that this was a “good thing”.[17] Mr Anderson stated that he had “no knowledge” that the Applicant had contacted STOPline to discuss with them his concerns about Mr Anderson’s refusal to remove the emails from the server, or that he personally was one of the things which the Applicant had asked STOPline to investigate.[18] It was his evidence that he was “happy for STOPline to undertake the investigation”.[19]
[17] Ibid, p.232 at line 47.
[18] Transcript of Proceedings, 22 July 2014, p.231 at lines 36 and 39.
[19] Ibid, p.231 at line 43.
Mr Anderson agreed that, over the weekend of 18 and 19 August 2012, he had discussed with Mr Mildenhall a process of investigation through Aitken Partners. He denied that at this point he had any concern about a possible investigation into his own conduct. Mr Anderson further denied that he did not want STOPline to be a part of any investigation. Mr Anderson stated that the engagement of Aitken Partners was put in place on the morning of Monday 20 August 2012 and he believed that this had occurred prior to the executive meeting.
On 24 August 2012, Mr Anderson issued a letter to all staff.[20]
[20] Affidavit of Mark Anderson filed 7 July 2014, at Annexure “MA-12”.
It stated, in part, as follows:
Last week our company email system was “hacked” and an email was sent containing extreme allegations against a number of staff members.
This behaviour breaches our code of conduct and runs against everything we stand for as an organisation. It was completely unnecessary, ignoring the many opportunities available to raise grievances or complaints. It was also illegal.
While some of the “rumours” have been circulated in the past, there has been no evidence available and no person has come forward with any information to assist in any investigation.
With the direction of the Board, I have commissioned an independent assessment team comprising legal and forensic experts to:
· analyse and investigate each of the claims made in the email; and
· determine how our email system was compromised.
I wish to make it very clear that we are taking the allegations seriously, despite the unwarranted nature of the attack.
Once completed, I will communicate the findings of the investigation to all employees.
I strongly encourage any staff member who has an issue they wish to raise in confidence, to use the STOPline service by calling 1300 30 45 50.[21]
[21] Affidavit of Mark Anderson filed 7 July 2014, at Annexure “MA-12”.
It was the evidence of Mr Koulis that an IT forensics expert from STOPline turned up at the Respondent’s premises on the afternoon of Thursday 22 August 2012. He gave Mr Anderson a letter of engagement and asked him to sign it.[22] Mr Koulis said he
“would prefer to read it before we sign anything”.[23] Mr Koulis read the letter which stated, in part, that “[w]e are not aware of any circumstances that, in our view, would constitute a conflict of interest or would impair our ability to provide objective assistance in this matter”.[24]
[22] Affidavit of George Koulis filed 7 July 2014, at Annexure “GK-01”.
[23] Transcript of Proceedings, 22 July 2014, p.147 at lines 36-37.
[24] Affidavit of George Koulis filed 7 July 2014, at Annexure “GK-01”.
Mr Koulis stated that he was reading through the letter when the forensic expert told him there was something that he needed to tell him. He then told Mr Koulis that he knew the Applicant and had been his
next-door neighbour. The investigator also told him that he had spoken with the Applicant and had discussed the IT investigation with him.
A decision was then made by Mr Anderson and Mr Koulis
not to engage the services of STOPline to undertake the
IT investigation.
The complaint to the police
The Applicant stated that, on about 6 September 2012, a copy of the
16 August 2012 email was sent by facsimile from the Respondent’s Footscray facility to the corporate office. He also understood that, on the same day, copies of the email were placed in staff pigeon holes at the Footscray facility. It was Mr Anderson’s evidence that the copy of the email was faxed to the corporate office on 3 September 2012.
The Applicant stated that, on 8 September 2012, he attended the Footscray police station to report incidents including:
·An anonymous letter, sent to him in either April or May 2012; and
·The 16 August 2012 email.
On the same day, the Applicant telephoned Mr Anderson and informed him that he had made a complaint to Victoria Police regarding the anonymous letter and the 16 August 2012 email. At this time, he also complained to Mr Anderson about the further dissemination of the email which had occurred on 6 September 2012. Mr Anderson directed the Applicant to stay out of the investigation and not talk to any employees about the investigation or the fax.
It was put to Mr Anderson in cross-examination that he did not want police involvement in the investigation and did not want police attending the facilities. Mr Anderson stated that the police did attend the corporate office and speak to him, but could not state on which date this happened. Mr Anderson stated that he was not concerned that a police investigation would encourage rumours among staff and residents. He denied that he wanted to avoid a police investigation.
Mr Mildenhall agreed that he was aware that the Applicant had made complaints to the police but was not aware of the details of
the complaint. He was aware that the police had visited the Respondent’s premises and spoken to Mr Anderson. He stated that his agreement with Mr Anderson was that they should offer the police their “full cooperation”.[25] He could not recall whether there were interviews conducted beyond that. Mr Mildenhall accepted that there might be a possibility that the police could conduct an investigation at the Respondent’s premises although he thought that this was very unlikely. He agreed that the possibility of police interviewing people would be “undesirable” from the Board’s perspective.[26] He stated that his reason for thinking this was because of his perception that it “would indicate to me, as the Chair of the Board, that there … may be … an internal issue … that I ought to be concerned about”.[27] His principal concerns with the sending of the email were:
[25] Transcript of Proceedings, 23 July 2014, p.314 at line 25.
[26] Ibid, p.315 at line 28.
[27] Ibid, p.315 at lines 35-36.
·Its potentially destructive impact on the organisation;
·The fact that it was unauthorised; and
·That it breached the code of conduct and authority structures within the organisation.[28]
Mr Mildenhall did not look at the issue from the perspective of whether it was a criminal act to send the email. He was not aware of the nature of the complaint made by the Applicant to the police and he had not spoken to the police himself. He stated that his attitude was that
“if a complaint was made to the police and they wanted to investigate it, that is entirely at their discretion and their jurisdiction … it was outside the … ambit of my influence”.[29]
[28] Transcript of Proceedings, 23 July 2014, p.316 at lines 6-8.
[29] Ibid, p.317 at lines 25-27.
The Applicant produced a statement from a Constable of
the Victorian Police, Con. MICHAEL MIRGIANNIS
(“Con. Mirgiannis”), who verified that he had spoken to the Applicant with respect to receiving threatening emails. He took a statement from the Applicant and took statements from two other employees. He was informed that an independent person from Aitken Partners was investigating the matter. Con. Mirgiannis contacted Aitken Partners who informed him that an employee of the Respondent had been interviewed and had made an admission with respect to sending the threatening emails. He later contacted the accused person and interviewed that person who was subsequently released pending summons.[30]
[30] Affidavit of John Bartolo filed 4 June 2014, at Annexure “JB-7”.
The Aitken Partners’ investigation
It was Mr Anderson’s evidence that he was requested by Mr Mildenhall, on behalf of the Board, to engage Aitken Partners to conduct an investigation of both the sending of the 16 August 2012 email and the allegations it contained. Aitken Partners were engaged by the company to conduct the investigation and advise the Board directly.
Mr Anderson stated that both he and the Applicant were to stay out of the investigation. He stated that “[t]he direction was clear to
[the Applicant] to stay away from the facilities”.[31][31] Transcript of Proceedings, 22 July 2014, p.240 at line 29.
In his oral evidence, the Applicant stated that he knew that
Aitken Partners had been engaged to conduct an investigation of behalf of the Board. He agreed that Mr Anderson had told him not to get involved in the investigation and not to run his own investigation.
He stated that “I wasn’t doing my own investigation. I was doing my job at the facilities”.[32] He further stated that if Mr Anderson was worried, “he should have suspended me and not had me there at all. But I had to do my job”.[33]
[32] Transcript of Proceedings, 21 July 2014, p.102 at lines 4-5.
[33] Ibid, p.100 at lines 37-38.
The Board formally resolved to appoint Aitken Partners to conduct the investigation at its meeting on 27 August 2012.
On 6 September 2012, the Applicant was interviewed by telephone by Mr Birkett of Aitken Partners concerning certain allegations made against him in the 16 August email. On 8 September 2012,
the Applicant was contacted and requested to attend a meeting with the investigators to discuss the allegations in the email and more recent events. The Applicant initially agreed to attend the meeting on
10 September 2012 and then advised that he would not participate because he had referred the matter to the police. After being offered certain assurances, he agreed to attend.
It was the Applicant’s evidence that he attended an interview with
Mr STEPHEN CURTAIN (“Mr Curtain”), a partner of Aitken Partners, at the Respondent’s corporate office on 10 September 2012. At the meeting, he sought written confirmation from Mr Curtain that the Aitken Partners investigation into the 16 August 2012 email would not interfere with the police investigation. He stated that Mr Curtain agreed to provide this to him, but would do so after he returned to his office. The Applicant stated that, shortly after, he left the interview, pending the receipt of the written confirmation from Mr Curtain. The Applicant denied that he had refused to co-operate with Mr Curtain. When it was put to him that he was not the subject of the police investigation, which was about who hacked into the server, he responded “I don’t know”.[34]
[34] Ibid, p.103 at line 18.
The Applicant stated that he received a message on
11 September 2012 directing him to attend an interview with
Mr Curtain. He sent an email to Mr Anderson, in which he indicated
that his preference was to respond to each of the allegations in the
16 August 2012 email in writing. Following this, he received an email in reply from Mr Anderson on 12 August 2014. Mr Anderson wrote to the Applicant in the following terms:
I understand that yesterday you refused to co-operate with
Stephen Curtain who had arranged to interview [sic] in relation to these matters [the source of the email circulated and the specific allegations contained in the email].
I am told this was on the basis that you required to know first whether Mr Curtain had determined who had sent the emails.
I understand that he did not provide a response to you on the basis that he was still in the course of conducting the investigation into that issue and that it would be premature to disclose what he had learned.
These investigations are being conducted by Doutta Galla at the direction of the Board and your co-operation as an employee and the principal subject of the allegations is important. While it was my understanding that you were willing to co-operate in these investigations (and in fact had expressed a keenness to do so)
it now appears necessary to formally direct you to do so. You are obliged to comply with Doutta Galla’s lawful directions and not to do so will constitute a breach of your employment contract.
Furthermore, it is important that you understand that if you don’t co-operate, the investigators may:
(a)take that lack of co-operation into consideration and draw inferences from it; and
(b)will be required to draw conclusions about these matters based on the other information they have received without your comment upon that information or the allegations. This may include information provided by others that is adverse to your position or that you may wish to contradict.
I therefore request that you confirm by no later than 4.00 pm today that you will co-operate with our investigation and participate in an interview with Mr Curtain.[35]
[35] Affidavit of Mark Anderson filed 7 July 2014, at Annexure “MA-15”.
The Applicant stated that being told that he had to speak to Mr Curtain was something that harmed his interests because “[i]f it affected the police investigation I believe so. Yes”.[36]
[36] Transcript of Proceedings, 21 July 2014, p.106 at line 36-37.
It was the evidence of Mr Mildenhall that on 24 September 2012,
Mr Birkett sent him a written interim report[37] pursuant to the
Aitken Partners retainer (“the Report”). He did not forward the Report to the other directors of the Board. The Board held a
meeting that afternoon at about 6.30 p.m. Mr Curtain attended the directors-only session of that meeting. He distributed a copy of the Report, authored by Aitken Partners, to the directors and spoke to the directors regarding the content of the Report. Mr Curtain gave legal advice to the Board based on the Report and matters raised by the Board in the discussion that day.[38]
[37] Exhibit R22, Interim Report prepared by Aitken Partners, addressed to Bruce Mildenhall, Chairman Doutta Galla Aged Services, dated 24 September 2012.
[38] Affidavit of Bruce Allan Mildenhall filed 8 July 2014, p.3 at para.13.
Following the Report, Mr Curtain left the meeting and Mr Anderson was invited to attend. The Board informed Mr Anderson that it had obtained advice from Aitken Partners and made four recommendations to Mr Anderson, including that the Applicant’s employment be terminated. The Board did not elaborate on its reasons for recommending the termination of the Applicant’s employment, other than to say, in effect:
·There appeared to be serious issues with respect to the awarding of contracts to third parties and with respect to the promotion of personnel within Doutta Galla and that the Applicant was ignoring Doutta Galla’s policies in this regard; and
·The Board was aware that the Applicant was defiant of the CEO’s authority, and that this was not appropriate.[39]
[39] Ibid, p.3 at para.14.
Mr Mildenhall confirmed that, on the Friday prior to the Board meeting, he had had a discussion with Mr Birkett and Mr Curtain. He stated that the Aitken Partners Report was significant to the extent that, if the Report had gone in a totally different direction, the Board may not have taken the action that it did. He stated that there were four other major considerations in his mind, but the Report was instrumental for the Board and the Board made a collective decision. He conveyed the Board’s recommendations to Mr Anderson who indicated to him that he accepted the recommendations. Mr Mildenhall agreed that there were no actual recommendations contained anywhere in the Report itself.
The Applicant’s absence from work and the worker’s compensation claim
On 12 September 2012, the Applicant ceased work and took sick leave. On 14 September 2012, he provided the Respondent with medical certificates certifying him as unfit for work from 12 September 2012 to 27 September 2012 due to illness.[40] On 26 September 2012,
the Applicant prepared a WorkCover claim[41] and notified Mr Anderson that he wished to have a meeting with him. Mr Anderson
and the Applicant met at a cafe near the Respondent’s office on
27 September 2012. It was the Applicant’s evidence that, at the meeting, he gave Mr Anderson an incident and injury form[42] which referred to emails, letters and phone calls which had led to stress, anxiety and depression. He also provided Mr Anderson with signed workers injury claim form dated 26 September 2012.[43]
[40] Affidavit of John Bartolo filed 4 June 2014, at Annexure “JB-11”.
[41] Ibid, at Annexure “JB-12”.
[42] Ibid.
[43] Ibid.
The Applicant denied that, when he met with Mr Anderson on
27 September 2012, he had a conversation with him to the effect that he wanted to cut a “deal” to leave the employment. [44] He denied that he had asked for “a year’s salary to go quietly” and that, in return,
he said he would not make a worker’s compensation claim.[45]
The Applicant agreed that, at the time he had filled out the form,
there had been no notification to him that his employment was to be terminated. He stated, however, that Mr Anderson had threatened to sack him prior to that date.
[44] Transcript of Proceeding, 21 July 2014, p.108 at line 16.
[45] Ibid, p.108 at lines 19 and 21.
It was Mr Anderson’s evidence that he met with the Applicant on
27 September 2012. At the meeting, the Applicant stated that the purpose of the meeting was to “discuss a “deal” to go forward”.[46]
The Applicant then handed him a document which he understood to be in the nature of a Workers Compensation claim form and stated that he “would not lodge it if we were able to reach a “deal””.[47]
The Applicant then stated that he wanted a year’s salary as notice and he would agree to his contract being terminated by resignation.
Mr Anderson stated that he advised the Applicant that he would consider the request and discuss it with the Board. He confirmed with the Applicant that he “did not want to lodge the WorkCover claim at that time” and told him that he “would retain it for safekeeping and would provide a response to [the Applicant] in relation to his proposal for the termination of his employment”.[48]
[46] Affidavit of Mark Anderson filed 7 July 2014, p.22 at para.169.
[47] Affidavit of Mark Anderson filed 7 July 2014, p.22 at para.170.
[48] Ibid, p.22 at para.173.
Mr Anderson stated that he then contacted Aitken Partners and the
Mr Mildenhall and advised them of what had transpired at the meeting. It was agreed that the recommendation of the Board of
24 September 2012 regarding the Applicant should be implemented immediately.
In cross-examination, Mr Anderson stated that he was quite clear of what he had been asked to do by the Applicant in the meeting with him on 27 September 2012. Mr Anderson also stated that, while the letter of termination was dated 1 October 2012, he gave instructions to
Mr Curtain to draft the letter on 27 September 2012.
In his oral evidence, Mr Mildenhall agreed that he had had a meeting with Mr Anderson about 27 September 2012. He became aware at that meeting that a WorkSafe claim or WorkCover claim had been lodged.
It was his recollection that, at a meeting on the Tuesday or Wednesday following the Board meeting, it was agreed that the Applicant was to be given three months’ notice of termination.
Issues concerning the Applicant prior to 16 August 2012
According to the evidence of Mr Anderson, approximately 14 months after the Applicant commenced work with the Respondent,
the organisational structure was reviewed in consultation with the Board at a Board strategic session. It was felt that the preceding
12 months had been a “significant and beneficial period of change”
for the Respondent and that it was now an “appropriate time to return the company to normal day-to-day activities”.[49] A decision was made that the role of HR manager should again be permanently filled and,
in about July 2011, Ms Robinson was appointed and became part of the executive team as the Respondent’s HR manager. Ms Robinson reported directly to Mr Anderson. Mr Anderson stated that, while the Applicant had accepted the appointment of Ms Robinson as
HR manager, he “wanted the position to report directly to him and be under his direct line of control”.[50]
[49] Affidavit of Mark Anderson filed 7 July 2014, p.3 at para.14.
[50] Ibid, p.3 at para.15.
Mr Anderson agreed that there was tension between Ms Robinson and the Applicant from shortly after her commencement in her role.
He agreed that, prior to Ms Robinson commencing, the Applicant had been given “additional powers in relation to the human resource function”.[51] Mr Anderson stated that, on a number of occasions,
[51] Transcript of Proceeding, 22 July 2014, p.216 at line 39.
Ms Robinson told him that it was not working with the Applicant.
He “counselled Ms Robinson and spoke to [the Applicant] on a number of occasions to impress upon him the importance of Ms Robinson’s role as HR manager”.[52] Mr Anderson agreed that, despite the appointment of Ms Robinson, the Applicant continued to appoint people to
positions without consulting with her. He agreed that the Applicant was
never disciplined about this until the appointment of
Ms MARIA ALGUERA-LARA (“Ms Alguera-Lara”) at the Respondent’s Grantham Green facility. Mr Anderson stated that he expressed to the Applicant “dissatisfaction” with what had happened at the Grantham Green facility.[53] There were many discussions with the Applicant about changing his ways and “adopting the normal business practices”.[54] Mr Anderson agreed that, in his view, the Applicant was unwilling to share in the decision making responsibilities; beyond a certain point, this became unacceptable.
[52] Affidavit of Mark Anderson filed 7 July 2014, p.4 at para.15.
[53] Transcript of Proceeding, 22 July 2014, p.218 at line 2.
[54] Ibid, p.218 at line 21.
Mr Anderson gave evidence that, by the end of 2010, he became aware of a number of rumours that were circulating amongst the Respondent’s employees in relation to the Applicant. A number of unsigned letters had been received by Mr Anderson and the Board regarding these rumours. In particular, there were rumours that the Applicant had a business interest in a private cleaning company called
LAZAMDAN CLEANING & SUPPLYS (“Lazamdan”) that the Applicant had contracted to clean all of the Respondent’s facilities in mid-2010, replacing the existing cleaning contractor. Mr Anderson investigated this by attending at Lazamdan’s premises to make inquiries but there was no evidence of any apparent connection.[55]
[55] Affidavit of Mark Anderson filed 7 July 2014, p.4 at para.16.
Another rumour, of which he became aware, was that the Applicant was not a registered nurse and that he had acted outside the scope of his practice. It was alleged that the Applicant had inappropriately issued clinical directions and instructions in relation to a resident.
Upon investigation, it was discovered that the Applicant’s previous registration as a registered nurse had lapsed. Mr Anderson stated that he had asked the Applicant “on numerous occasions over four or five months to renew his registration”.[56] The Applicant had not done so.
[56] Ibid, p.4 at para.18.
At the end of 2010, an unsigned and anonymous letter was received setting out these rumours and allegations. An internal investigation was undertaken, however no evidence could be found in support of any of the allegations with the exception of the allegation that the Applicant was not a registered nurse.[57]
[57] Ibid, p.4 at para.19.
Mr Anderson gave evidence that, in late 2011, the manager of the Respondent’s Grantham Green facility, a smaller low-care facility, advised that she would be resigning from her position. The Applicant approached him and informed him that he had “identified a personal care assistant who he thought would be “good enough” to manage a facility”.[58] Mr Anderson advised the Applicant that:
[P]rovided correct recruitment processes were followed (including advertising the position, appointing an appropriate selection panel, recording the interviews and reaching a decision following completion of the process).[59]
Mr Anderson was happy for him to consider such an appointment if he thought the person could do the job and these processes were followed.[60] In early 2012, the Applicant informed him that he had appointed Ms Alguera-Lara to the role of facility manager at the Grantham Green facility. Mr Anderson was:
[N]ot aware of the circumstances surrounding the appointment in relation to recruitment activities and had the expectation and understanding that [the Applicant] would have followed appropriate processes as requested by me.[61]
[58] Ibid, p.5 at para.21.
[59] Ibid.
[60] Affidavit of Mark Anderson filed 7 July 2014, p.5 at para.21.
[61] Ibid, p.5 at para.23.
Mr Anderson subsequently became aware that an appropriate recruitment process was not followed by the Applicant and that the Applicant had not discussed the appointment with Ms Robinson,
the HR manager.
Ms Robinson gave evidence that, on two or three occasions, she had offered her resignation and raised concerns that she believed it would be “impossible to implement appropriate HR functions, systems and processes in the organisation if I was not given the support and decision making authority required by the role”.[62] In January 2012,
she tendered her resignation but withdrew this in February 2012 after Mr Anderson persuaded her, based on a request from the Board, not to resign. Ms Robinson was also assured that the Applicant would not have any delegation or decision-making authority over the HR function. Ms Robinson stated that she had tended her resignation following the appointment by the Applicant of Ms Alguera-Lara to the position of manager at the Respondent’s Grantham Green facility. The Applicant had not consulted with her with respect to the appointment of
Ms Alguera-Lara. The Applicant stated that he was “never made aware” that he was required to follow any policies or procedures with respect to the hiring or promotion of staff, including formal recruitment and selection policies, “if indeed one [such policy] existed”.[63]
[62] Affidavit of Sharon Elizabeth Robinson filed 7 July 2014, p.2 at para.6.
[63] Affidavit of John Bartolo filed 14 July 2014, p.4 at para.25.
Mr Anderson gave evidence that, in March 2012, the Respondent commenced executive coaching with each member of the
executive team undertaking individual leadership assessments and group coaching sessions. He stated that the Applicant was very resistant to the group coaching sessions and found it “difficult working in a team environment”.[64] He stated that the Applicant informed him that he was “happy to work with me directly but wanted complete autonomy in all areas of facility operations, including financial management, employee management and recruitment activities”.[65]
Mr Anderson stated that, despite the appointment of an executive coach and a “number of discussions” he had with the Applicant in relation to his management style, the Applicant continued to refuse to collaborate with and support the other members of the executive team: “[h]e would often make unilateral decisions without consulting the executive team or engaging them in the decision making process”.[66]
[64] Affidavit of Mark Anderson filed 7 July 2014, p.6 at para.30.
[65] Ibid.
[66] Ibid, p.7 at para.32.
In about March 2012, the manager of the Footscray facility, one of the larger high care facilities, submitted her resignation and an acting manager was appointed to the position until recruitment for the position could be undertaken. In June 2012, an expression of
interest memorandum for the position was circulated to all staff.[67]
A number of staff applied for the position, including Ms Alguera-Lara. On 31 July 2012, the executive team met to discuss issues, including the recruitment for the Footscray facility manager role. The Applicant informed the team that he wanted to appoint Ms Alguera-Lara to the role. It was the evidence of Ms Robinson that the executive team expressed concerns regarding the appointment of Ms Alguera-Lara and it was agreed that “no appointments … would be made until
Mr Anderson returned from leave on 13 August 2012 and the position had been advertised internally and externally and a proper recruitment process undertaken”.[68][67] Ibid, at Annexure “MA-06”.
[68] Affidavit of Sharon Elizabeth Robinson filed 7 July 2014, p.3 at para.10.
On 2 August 2012, the Applicant met with Ms Robinson and advised her that he wanted to promote Ms Alguera-Lara to the role and stated that Mr Anderson was “fine” with the appointment.[69] Ms Robinson stated that Mr Anderson had not mentioned the appointment to her and that she did not believe that Ms Alguera-Lara was a suitable appointment for the position. The Applicant denied that this meeting occurred.[70] On the same day, the Applicant also met with Mr Koulis who advised the Applicant that he was “against the idea of appointing Ms Alguera-Lara” and that it would be discussed further upon
Mr Anderson’s returned from leave.[71]
[69] Ibid, p.3 at para.11.
[70] Affidavit of John Bartolo filed 14 July 2014, p.5 at para.32.
[71] Affidavit of George Koulis filed 7 July 2014, p.3 at para.11.
Mr Anderson was on leave from 3 August 2012 until 13 August 2012 and Mr Koulis was acting CEO in his absence.
On 6 August 2012, according to Mr Koulis, the Applicant arrived at the Doutta Galla corporate office and asked him about an appropriate salary range for the manager of the Grantham Green facility.
He reminded the Applicant that at an executive team meeting it had been agreed that the salary would remain as it was. During the discussion, the Applicant made no reference to any appointment being made to the role of manager of the Grantham Green or Footscray facilities. Approximately 10 minutes after the Applicant’s departure,
a new employee, Ms HIBA ADAMS (“Ms Adams”), arrived at the corporate office and was introduced to Mr Koulis as the new manager of the Grantham Green facility. Mr Koulis checked with Ms Robinson to find out what was going on. Ms Robinson confirmed that she did not know of “any changes since an earlier executive meeting … where it was agreed that the only vacant role of facility manager Footscray, would be advertised … and the matter would be discussed when
Mr Anderson returned from leave”.[72] Later the same morning, the Applicant sent an email to all staff announcing that Ms Alguera-Lara was the new manager of the Footscray facility and that Ms Adams had been appointed to replace her as the manager of the Grantham Green facility.[73][72] Ibid, p.3 at para.13.
[73] Affidavit of Sharon Elizabeth Robinson filed 7 July 2014, at Annexure “SR-01”.
Later that day when the Applicant returned to the corporate office,
Mr Koulis asked why he had not mentioned the recruitment he had undertaken for the Grantham Green and the Footscray facility manager positions. The Applicant stated that he had approval from Mr Anderson and that he had forgotten to mention it to him. Mr Koulis stated that he spoke to Mr Anderson on the evening of 6 August 2012 and informed him of the appointments. Mr Anderson informed Mr Koulis that he had “not given [the Applicant] authorisation to make these appointments and that they had been undertaken without his knowledge or endorsement”.[74] In cross-examination, Mr Koulis stated that, in the meeting on 31 July 2012, there was an agreement not to appoint anyone to the position at Footscray until Mr Anderson had returned from annual leave. He left the meeting under “no confusion” that
Ms Alguera-Lara was “not to be appointed to Footscray and that the role would be advertised internally and externally”.[75]
[74] Affidavit of George Koulis filed 7 July 2014, p.4 at para.14.
[75] Transcript of Proceeding, 22 July 2014, p.140 at lines 1-3.
The Applicant denied that a decision was made at the meeting of the executive team in late July to wait until Mr Anderson had returned from annual leave before appointing a new manager at the
Footscray facility. The Applicant stated that he had been given “complete authority” to appoint facility managers.[76] In regards to the appointment at the Footscray facility, the Applicant interviewed three applicants, including Ms Alguera-Lara, and made the decision that she was the best candidate. He then pointed Ms Adams as manager at the Grantham Green facility.
[76] Affidavit of John Bartolo filed 14 July 2014, p.5 at para.31.
In cross-examination, the Applicant denied that ultimate authority lay with the CEO. He stated that he told Mr Anderson what was happening but he “didn’t actually say a report per se”.[77] He agreed that
Mr Anderson reported directly to the Board and that he did not.
The Applicant stated that he was aware that there was an enterprise agreement which operated with respect to the Respondent but had not “sighted” the agreement.[78] He was asked if he was aware that it was a requirement for a nurse unit manager to be employed at a high-care facility. The Applicant stated that it was his understanding that there had to be a registered nurse on site as part of the clinical team, but that the manager did not have to be a nurse.[79] The Applicant’s attention was drawn to cl.48 of the DOUTTA GALLA AGED SERVICES LTD NURSES ENTERPRISE AGREEMENT 2009 [AE 8721581 PR991441] (“the Agreement”) which stated “Doutta Galla Aged Services Ltd will employ a Director of Nursing … at a high care facility”.[80]
[77] Transcript of Proceeding, 21 July 2014, p.37 at lines 20-21.
[78] Ibid, p.38 at line 15.
[79] Ibid, p.41 at lines 27-31.
[80]The Applicant agreed that he had appointed Ms Alguera-Lara as manager of the Footscray facility and that it was a high-care facility. He denied that she was appointed as a director of nursing, stating
“[w]e didn’t call them director of nursing any more”.[81] The Applicant stated that, when he appointed Ms Alguera-Lara, he had no regard to the industrial obligations and that they had never been put to him.
He agreed that Ms Alguera-Lara was not a nurse and had no nursing qualifications.
[81] Transcript of Proceeding, 21 July 2014, p.41 at line 27.
Ms Robinson, in cross-examination on the issue, stated that she understood that an expression of interest memorandum for the position at the Respondent’s Footscray facility had been circulated by the Applicant in about June 2012. She stated that she “wasn’t consulted as part of that” and that “normally it would go through HR”.[82]
Ms Robinson stated that she “didn't actually get a chance to advertise it on SEEK” because the Applicant had appointed Ms Alguera-Lara to the role.[83] Ms Robinson stated that, at the meeting on 31 July 2012,
the Applicant “advised us that he had interviewed people, but I haven't seen any documentation, nor was I aware of … when any interviews had been conducted or the panel”.[84] She asked the Applicant to produce the documentation to verify the interviews had occurred.
Ms Robinson stated that there was a:
[S]trict policy and procedure for recruitment and selection. There are also interview guidelines and different documentation that you need to complete when you're filling the interview … I would have expected to see that documentation.[85]
[82] Transcript of Proceeding, 22 July 2014, p.172 at lines 14 and 17.
[83] Ibid, p.172 at line 23.
[84] Ibid, p.173 at lines 1-3.
[85] Ibid, p.173 at lines 14-17.
Ms Robinson reiterated that, at the meeting, the decision was that “the position would be advertised externally and that [Ms Alguera-Lara] would not be appointed to the role”.[86] There would be further discussion when Mr Anderson came back from leave and the position would be advertised on SEEK. Ms Robinson stated that she had seen no documents relevant to the appointment of Ms Alguera-Lara in relation to a selection panel.
[86] Ibid, p.173 at lines 24-25.
Ms Robinson gave evidence of what she described as a “disclosable outcome” on a police check for Ms Alguera-Lara.[87] She agreed that
Ms Alguera-Lara had no conviction recorded against her. Ms Robinson stated, however, that:
[A]ccountability principles automatically exclude certain individuals with convictions, but the principles also provide guidelines that if other disclosable outcomes are evidenced in the criminal history report, then it is up to the individual aged cared provider to make an assessment or an evaluation of those disclosable outcomes, and whether or not they would be a cause for concern regarding the safety or wellbeing of residents or their property.[88]
[87] Affidavit of Sharon Robinson filed 7 July 2014, p.4 at para.14.
[88] Transcript of Proceeding, 22 July 2014, p.174 at lines 35-40.
Ms Robinson stated that, from her information, Ms Alguera-Lara had been released on a good behaviour bond for an offence of obtaining financial advantage. In her view, she would have thought that it was “not appropriate”[89] to appoint Ms Alguera-Lara to a management position when the facility manager has direct access to all medical and financial records of the residents and to cash.[90] Ms Robinson stated that the Respondent was “quite strict in terms of the facility managers and their integrity with that respect”.[91]
[89] Ibid, p.187 at lines 18-19.
[90] Ibid, p.187 at lines 25-26.
[91] Ibid, p.187 at lines 33-34.
It was Mr Anderson’s evidence that he became aware that the Applicant had signed a statutory declaration in March 2012 that “stated that he had sighted documents” that there was no criminal conviction against Mr Alguera-Lara that could “impact on her appointment as a facility manager”.[92] The statutory declaration was dated four days after the Respondent received advice on 2 March 2012 from CrimTrac[93] that
Ms Alguera-Lara had a “previous disclosable outcome on her current national history record”.[94] In his view, that disclosable outcome was “serious enough to warrant reconsideration of her appointment as [a] facility manager”.[95]
[92] Affidavit of Mark Anderson filed 7 July 2014, p.7 at para.38.
[93] Ibid, at Annexure “MA-04”.
[94] Affidavit of Mark Anderson filed 7 July 2014, p.7 at para.38.
[95] Ibid.
The conduct of the Applicant following the 16 August 2012 email
Mr Anderson gave evidence that, on 21 August 2012, he spoke to the Applicant by telephone and was advised by the Applicant that he been at the Footscray facility and corporate office and had spoken to a junior staff member at the corporate office about who might be involved in the sending of the email. Mr Anderson stated that he advised the Applicant that his conduct was “inappropriate and again issued my direction that he was to stay out of the investigation and stop speaking to staff”.[96] The Applicant told Mr Anderson that he believed that a resident had been told by an employee at Footscray about the allegations in the email and that he, the Applicant, wanted to investigate this. Mr Anderson instructed the Applicant to “stay out of the investigation” and suggested to him that he “should consider undertaking some leave whilst the investigation was underway”.[97]
The Applicant refused to undertake leave but agreed that he would stay out of the investigation.
[96] Ibid, p.14 at para.95.
[97] Ibid, p.14 at para.96.
Mr Anderson stated that, on or about 28 August 2012, the Applicant and Ms Alguera- Lara began issuing disciplinary letters to staff at the Footscray facility.[98] The letters directed staff to attend meetings over “performance concerns” with the manager of the Footscray facility and the Applicant.[99] The letters did not detail any specific incidents or details of what the “performance concerns” were and were inconsistent with the Respondent’s policies and procedures.[100]
[98] Affidavit of Sharon Elizabeth Robinson filed 7 July 2014, at Annexure “SR-07”.
[99] Affidavit of Mark Anderson filed 7 July 2014, p.15 at para.111.
[100] Ibid, p.16 at para.111.
On 7 September 2012, the Applicant and Ms Alguera-Lara held five disciplinary meetings with staff at the Footscray facility. On the same day, Ms Robinson received complaints from staff that they were being summonsed to meetings with the Applicant and Ms Alguera-Lara.
Ms Robinson asked Mr Anderson if he was aware of the meetings that the Applicant was holding and what they were in relation to and told him that she had no knowledge of them. Mr Anderson contacted the Applicant. He stated that he was holding the meetings, but “denied that he was interrogating staff in relation to matters concerning the investigation or the unauthorised email and/or recent events in relation to them”.[101] The Applicant insisted that the meetings were
“standard disciplinary meetings”and stated that he could “summon staff to a meeting at any time and did not need to provide them with a specific reason for the meeting”.[102] Mr Anderson subsequently instructed the Applicant not to participate in the meetings and to ensure an independent person sit in on the meetings with Ms Alguera-Lara to ensure that the meetings were in accordance with correct process.[103]
[101] Affidavit of Mark Anderson filed 7 July 2014, p.17 at para.123.
[102] Ibid, p.17 at para.124.
[103] Ibid, p.17 at para.125.
On 8 September 2012, the Applicant telephoned Mr Anderson to complain to him about copies of the unauthorised email being placed in the pigeon holes of staff at the Footscray facility. Mr Anderson suggested to him that they meet to discuss the incident and again reminded him that he had been requested to minimise his time at any of the facilities.[104]
[104] Ibid, p.17 at para.128.
Mr Anderson stated that he met with the Applicant later on
8 September 2012 at Williamstown. He discussed with the Applicant his concerns regarding the Applicant’s well-being and reminded him of the counselling services that were available. He advised the Applicant that they would meet again on Monday. Mr Anderson contacted
Mr Mildenhall and the independent investigator from Aitken Partners and advised of:
·What had transpired that day;
·The disciplinary meetings of the previous day; and
·His concerns that the Applicant continued to disobey the direction to stay out of the investigation.
It was agreed that the independent investigator’s interview with the Applicant should be brought forward in view of the information that had come to light and the recent events that had transpired.[105]
[105] Affidavit of Mark Anderson filed 7 July 2014, p.18 at paras.130 and 132.
Later that afternoon, the Applicant contacted Mr Anderson and suggested that they meet the next day at a cafe instead of on the Monday morning. Mr Anderson stated that he “turned up to the cafe on the Sunday morning and was confronted with six facility managers”.[106]
He stated that he felt that it was “an ambush” by the Applicant to “show his power in the organisation”.[107] At the meeting, Mr Anderson was given a signed petition by the six managers, stating that they “wished to express concerns” that the Applicant was to be terminated due to stress.[108] Mr Anderson instructed the Applicant to leave the meeting and stated that he would speak to the facility managers as a group. The managers informed Mr Anderson that they were concerned that the Applicant was going to be sacked and that he was not being listened to. Mr Anderson advised the managers that the Applicant had been instructed repeatedly to stay out of the investigation and assured them that the Applicant was to be interviewed by the investigators and would be given an opportunity to provide information to the investigating team.[109]
[106] Ibid, p.18 at para.134.
[107] Ibid.
[108] Ibid, p.18 at para.135.
[109] Ibid, p.18 at para.136.
On 10 September 2012, Ms Robinson received a call
from the Australian Nursing Federation (“ANF”) in relation to the disciplinary meetings on 7 September 2012 held by the Applicant
and Ms Alguera-Lara. The ANF raised concerns that staff were “threatened, interrogated and bullied in the meetings, that proper processes were not followed and that staff were not provided with reasons as to why they were being called to the meetings”.[110] The ANF further raised the concern that Ms Alguera-Lara was not a registered nurse and that this was in breach of the Agreement. Ms Robinson also received calls from staff in relation to the meetings that they had attended on 7 September 2012. Following the meeting, staff members were issued with letters containing warnings and threats of disciplinary action.[111]
[110] Affidavit of Sharon Elizabeth Robinson filed 7 July 2014, p.8 at para.47.
[111] Affidavit of Sharon Elizabeth Robinson filed 7 July 2014, at Annexure “SR-08”.
It was the Applicant’s evidence that, when he met with Mr Anderson at the cafe in Williamstown on 8 September 2012, “Mr Anderson said words to the effect that I had to strongly convince him as to why he should remain employed with the Respondent”.[112] He stated that
Mr Anderson also said that he should “consider resigning” or he would be sacked.[113] The Applicant stated that, after the meeting,
he rang one of the facility managers and spoke to her about his discussions with Mr Anderson. He stated that she told him that she “wanted to speak with the other facility managers because the issues affected the entire team”.[114] Later, the Applicant received calls from a number of the other facility managers. He rang Mr Anderson and asked for a further meeting.
[112] Affidavit of John Bartolo filed 4 June 2014, p.7 at para.37.
[113] Ibid.
[114] Ibid, p.7 at para.38.
In cross-examination, the Applicant stated that the facility managers “wanted to be” at the meeting on Sunday 9 September 2012.[115]
When it was put to him that he did not tell Mr Anderson that there were going to be six facility managers at the meeting with him, the Applicant responded, “[t]hey told me not to. The managers”.[116]
[115] Transcript of Proceeding, 21 July 2014, p.90 at lines 46-47.
[116] Ibid, p.91 at lines 2-3.
The Applicant agreed that he knew, before he turned up at the cafe for the meeting, that the six managers would be attending. When it was put to him that it was improper for him not to have let Mr Anderson know that there would be six managers attending the meeting, he reiterated “[t]hey told me not to talk to him and … I didn’t”.[117] He stated that
Mr Anderson could have “walked out at any time”.[118] The Applicant further stated that he did not want the meeting with Mr Anderson;
the facility managers wanted to meet with him. The Applicant agreed that he had appointed “five out of [the] six” facility managers who were at the meeting.[119]
[117] Ibid, p.91 at line 17.
[118] Ibid, p.91 at line 28.
[119] Ibid, p.93 at line 17.
In cross-examination, Mr Anderson agreed that he had told the Applicant at the meeting on 8 September 2012 that he needed to convince him that it was appropriate for him to remain employed.
He denied, however, saying that the Applicant should consider resigning or that he faced being sacked. Mr Anderson stated,
with respect to the meeting on 9 September 2012, that he was not angry about the interface between himself and the facility managers but about the fact that he was “ambushed”.[120] He and the Applicant had had a private meeting on the Saturday and the Applicant requested a subsequent meeting on the Sunday “without any indication of what I was walking into”.[121]
[120] Transcript of Proceeding, 22 July 2014, p.239 at line 10.
[121] Ibid, p.239 at line 12.
The Lazamdan contract
The issue of the Lazamdan contract was first raised in an anonymous letter to Mr Anderson and the Board in late 2010.
The Applicant agreed that, as one of the senior managers of the Respondent, he was responsible to protect the revenue of the company. He agreed that there were policies dealing with purchasing and expenditure. When it came to acquiring services for the various facilities he agreed that, along with the manager of the facility, he would be a decision-maker on which services would be acquired.
He agreed that he often had the final say on suppliers. When asked if it was his evidence that he always conducted a review or due diligence on suppliers before appointing them, the Applicant stated that
“it depended”.[122] The Applicant agreed that, in 2009, four of the facilities had contracts for cleaning to be undertaken by a company called Nationwide. The Applicant also agreed that, in 2009, the cost of cleaning a facility was approximately $80,000.00 - $90,000.00
per annum.[123]
[122] Transcript of Proceeding, 21 July 2014, p.38 at line 41.
[123] Ibid, p.50 at lines 32-33.
The Report prepared by Aitken Partners stated that:
[The Respondent] entered into eight separate cleaning contracts (one for each facility) in 2010 with “SLD Cleaning & Supplys T/AS Lazamdan Cleaning & Supplys Contractor”.
The process for granting the contracts was undertaken by
[the Applicant]although he consulted with Mr Anderson before finally awarding the contracts.
There was no formal tender process followed although
[the Applicant]has indicated that a number of potential suppliers applied to be considered … [The Applicant] says that he destroyed all records …[124]
[124] Exhibit R22, Interim Report prepared by Aitken Partners, addressed to Bruce Mildenhall, Chairman Doutta Galla Aged Services, dated 24 September 2012 at p.4.
It was the Applicant’s evidence that there were about five or six companies interested in cleaning the Respondent’s facilities.
His personal assistant “phoned up the different people and asked them to come in and meet with [him]”.[125] The Applicant “just listened to what they had to say and what services they had done”.[126]
The Applicant stated that the companies all gave a reference,
so he contacted them. He could not recall who the Lazamdan referee was. The Applicant also could not recall receiving an email from
Mr ALI IBRAHIM (“Mr Ibrahim”), the manager at the Respondent’s Woornack facility, about Lazamdan. He agreed that the document which he received from Mr Ibrahim was headed “SLD Cleaning, Catering, Maintenance and Laundry Service” (“SLD”) and a post office box was provided as the address.[127] There was no name on the letter of the sender. When asked what due diligence he did to check out the company, the Applicant responded, “[t]he same as the others”.[128]
He did not do a name check or investigate at all who SLD was.
[125] Transcript of Proceeding, 21 July 2014, p.60 at lines 6-7.
[126] Ibid, p.60 at lines 9-10.
[127] Exhibit R4, SLD Cleaning, Catering, Maintenance and Laundry Service quote addressed to Doutta Galla, Woornack dated 19 April 2010.
[128] Transcript of Proceeding, 21 July 2014, p.61 at line 47.
The Applicant stated he believed Lazamdan is a “corporate entity, which conducts a cleaning business”.[129] When asked if he had checked whether it was a proprietary limited company, the Applicant stated that it “wasn’t my job to do that”:[130] his job was more to determine if they could or could not do the job. When asked if he was aware that SLD Cleaning and Supplys was a trading name, the Applicant replied that it “doesn’t interest me”.[131]
[129] Affidavit of John Bartolo filed 14 July 2014, p.2 at para.3.
[130] Transcript of Proceeding, 21 July 2014, p.65 at line 24.
[131] Ibid, p.66 at lines 30-31.
It was put to the Applicant that SLD Cleaning and Supplys was a trading name registered to a person who was employed as a personal care attendant at the Respondent’s Woornack facility. When asked if that raised any cause for concern about the legitimacy of the organisation, the Applicant responded, “[m]y concern was, can they do the job or can they not do the job, and they were doing the job”.[132] When asked if he was aware that the name Lazamdan was not a company, the Applicant responded, “I didn’t care”.[133]
[132] Transcript of Proceeding, 21 July 2014, p.67 at lines 20-21.
[133] Ibid, p.67 at line 34.
The Applicant stated that he visited the office of Lazamdan once with Mr Anderson. He could not remember the name of the person to whom they spoke there.
The Applicant agreed that, in mid-2012 just before his employment ceased, he was seeking to negotiate a new five-year contract with Lazamdan. He agreed that, over a five-year period, the contract would be in the range of $7.5 million. When asked if he had conducted any due diligence on Lazamdan at that point, he responded, “[t]hey had been doing their job … why would I?”.[134] He agreed that Ms Robinson had asked him to produce a copy of the Lazamdan contract in 2012 and that he could not find it. The Applicant stated that he had “signed my copy and sent it over to [Lazamdan] to execute it”.[135]
[134] Ibid, p.71 at lines 14-15.
[135] Ibid, p.71 at lines 24-25.
The Applicant agreed that his sister had been given the job, by him, to clean the corporate suites at the Respondent. He also agreed that she later went to work for Lazamdan as well. When asked why he never went to Mr Anderson and told him that his sister was going to work for Lazamdan, he replied that it “wasn’t up to me where she worked”.[136]
[136] Ibid, p.72 at lines 5-6.
It was Mr Anderson’s evidence that, in response to the allegations in 2010 that the Applicant had an ownership interest in Lazamdan,
he went to the offices of Lazamdan and spoke to a woman called Ruby who “told me she was the principal of the company”.[137] Mr Anderson was aware that there were rumours concerning an involvement by
Mr Ibrahim in Lazamdan but stated that no connection was found between Lazamdan and any person employed by the Respondent.
Mr Anderson stated that he would not call it a “thorough” investigation.[138]
[137] Transcript of Proceeding, 22 July 2014, p.221 at line 1.
[138] Transcript of Proceeding, 21 July 2014, p.221 at line 11.
The termination of the Applicant’s employment
In his affidavit evidence, Mr Anderson stated that he met with the Applicant and Mr Curtain from Aitken Partners on 1 October 2012. The Applicant was “provided a letter of termination and advised that his contract was being terminated with three months’ notice” and that he was “not required to fulfil duties during the notice period
but that he would continue to be paid fortnight salary” until31 December 2012.[139] The Applicant was “directed to not enter any
[of the Respondent’s] facilities or communicate with any staff” during this period.[140][139] Affidavit of Mark Anderson filed 7 July 2014, Annexure “MA-01”, p.17 at paras.165-166.
[140] Ibid, Annexure “MA-01”, p.17 at para.166.
Mr Anderson set out his reasons for terminating the employment of the Applicant at paragraph 198 of his affidavit.[141]
[141] Ibid, at pp.25-26.
[143] Transcript of Proceeding, 22 July 2014, p.242 at line 41.
Mr Anderson stated that he had formed the view that the Applicant “had to go” following the meeting on 9 September 2012.[142] In his oral evidence, Mr Anderson stated that 9 September 2012 was the
“turning point”[143]for him but that he did not act until after the recommendation of the Board.
[142] Ibid, p.26 at para.200.
Mr Anderson stated that, on 25 September 2012, he started the process, with Aitken Partners, of implementing the four recommendations of the Board. The first task to be done was “the termination of the person who was responsible for the emails”.[144] Mr Anderson stated that allegations of an improper relationship between the Applicant and
Ms Alguera-Lara was not a factor in his decision-making but her appointment to the position of manager at the Footscray facility in disregard of the direction he had given to the Applicant was a factor.
[144] Ibid, p.243 at lines 17-18.
Mr Anderson denied that the concerns expressed by the facility managers on 9 September 2012 were a factor in his decision-making but stated that the meeting, itself, was “a challenge to my authority”.[145] The events of 27 September 2012 were also not a factor as the decision to terminate the Applicant’s employment had already been made on 24 September 2012.
[145] Transcript of Proceeding, 22 July 2014, p.249 at line 31.
It was Mr Mildenhall’s evidence that the Aitken Partners Report was “very significant” in the decision of the Board to recommend the termination of the Applicant’s employment.[146]
[146] Transcript of Proceeding, 23 July 2014, p.305 at line 24.
Mr Mildenhall agreed that the Report did not provide the basis upon which the author came to the conclusion that there was a
sexual relationship between the Applicant and Ms Alguera-Lara.
He accepted that the possible conflict of interest found was dependent on the existence of that relationship. Mr Mildenhall stated that the Report also found “some significantly unsatisfactory personnel practices that were not dependent on a conflict of interest … some quite shoddy practices that did concern me”.[147]
[147] Ibid, p.331 at lines 5-7.
With respect to the issue of the Lazamdan contract, Mr Mildenhall stated that “[t]he Board was left with the impression that … some extremely shoddy practices were … demonstrated” although there was “no clear and direct evidence that [the Applicant] had a financial interest” in Lazamdan.[148]
[148] Ibid, p.331 at lines 13-16.
Mr Mildenhall stated that:
I was also particularly concerned that despite my request … and the specific instructions from the CEO [Mr Anderson], not to get involved in conducting his own investigation … [the Applicant] … defied my request, defied the CEO's instruction, and undertook … this series of interviews, and other activity …[149]
[149] Ibid, p.332 at lines 22-26.
Mr Mildenhall also referred to discussions with Mr Anderson about the Applicant’s behaviour including:
·Allegations of bullying;
·His defiance of the CEO;
·His defiance of the Board’s investigation;
·The risks to the Respondent; and
·His concern about significant ructions in the management team.[150]
[150] Transcript of Proceeding, 23 July 2014, at p.332.
The legislative provisions
The Applicant alleges that the Respondent has breached ss.340 and 352 of the Act. These provisions are found in Part 3-1 - General Protection, of the Act. The relevant objects of Part 3-1 of the Act, for the purposes of these proceedings, are set out in ss.336(1)(a) and (d) of the Act:
(1) The objects of this Part are as follows:
(a) to protect workplace rights;
…
(d)to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part.[151]
[151] Fair Work Act 2009 (Cth), s.336(1).
Section 340 of the Act provides:
Protection
(1)A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)to prevent the exercise of a workplace right by the other person.
Note:This subsection is a civil remedy provision (see
Part 4-1).(2)A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.
Note:This subsection is a civil remedy provision (see
Part 4-1).[152][152] Fair Work Act 2009 (Cth), s.340.
The term “workplace right” is defined in s.341(1) of the Act:
(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
(b)is able to initiate, or participate in, a process
or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee--in relation to his or her employment.[153]
[153] Ibid, s.341(1).
For the purpose of these proceedings, the Applicant relies on ss.341(1)(a) and (c) of the Act.
The term “adverse action” is defined in s.342 of the Act. Relevant to these proceedings is Item 1:
Adverse action is taken by an employer against an employee if the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c)alters the position of the employee to the employee’s prejudice; or
(d)discriminates between the employee and other employees of the employer.[154]
[154] Fair Work Act 2009 (Cth), s.342 at Item 1.
Section 352 of the Act provides:
Temporary absence--illness or injury
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
Note: This section is a civil remedy provision (see Part 4-1).[155]
[155] Ibid, s.352.
For the purposes of the operation of Part 3-1 of the Act, the following provisions are also significant:
Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.[156]
[156] Ibid, s.360.
Reason for action to be presumed unless proved otherwise
(1) If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2)Subsection (1) does not apply in relation to orders for an interim injunction.[157]
[157] Fair Work Act 2009 (Cth), s.361.
The Workplace Rights
The Applicant claimed that the following fell within the definition of a “complaint or inquiry”[158] in relation to his employment:
·
A request by him on 20 August 2012 to STOPline to conduct a forensic investigation into the source of the 16 August 2012 email and a complaint made about the failure of Mr Anderson and
Mr Koulis to intervene or assist in the removal of the email from the system;[159]
·A complaint made by him to the police on 8 September 2012 concerning an anonymous letter sent to him in April or May 2012 and the 16 August 2012 email;[160]
·A complaint made to Mr Anderson on 8 September 2012 concerning the further dissemination of the 16 August 2012 email;[161] and
·A statement made by him to the police on 9 September 2012.[162]
[158] Ibid, s.341(1)(c).
[159] Applicant’s Closing Submissions filed 17 July 2014, p.2 at para.7.
[160] Ibid, p.2 at para.10.
[161] Ibid, p.2 at para.11.
[162] Ibid, p.3 at para.13.
The Applicant further contends that the presentation to Mr Anderson on 27 September 2012 of an accident and injury notification and a WorkCover claim related to an entitlement to “the benefit of … a workplace law”,[163] in this case, the Occupational Health and Safety Act (2004) (Vic) and the Accident Compensation Act (1985) (Vic).[164]
[163] Fair Work Act 2009 (Cth), s.341(1)(a).
[164] Applicant’s Closing Submissions filed 17 July 2014, pp.3-4 at para.18.
Further, the Applicant contends that he was unfit for work between
12 and 27 September 2012 and that this amounted to him being “temporarily absent from work because of illness or injury” within the meaning of s.352 of the Act.
Did the Applicant make a “complaint or inquiry” to STOPline?
There is little authority on what constitutes a complaint within the meaning of s.341(1)(c) of the Act. Any discussion of the provision appears mainly to have been in the context of s.341(1)(c)(i) of the Act and in relation to the question of to whom a complaint or inquiry could be made in order to attract the provision. Section 341(1)(c)(ii) of the Act is not restricted by any requirement as to whom the complaint or inquiry is made, but only by the requirement that the complaint or inquiry be in relation to the employee’s employment.
The matter of the right to make a complaint was recently considered by a Full Bench of the Federal Court in Shea v Energy Australia Services Pty Ltd [2014] FCAFC 167. At paragraph 12, the Court expressed the following view:
Considerable care needs to be exercised before implying into
s 341 any constraint that would inhibit an employee’s ability to freely exercise the important statutory right to make a “complaint”. To too readily imply into the language of ss 340 and 341 the necessity for a complaint to be a “genuine” complaint, necessarily would be productive of argument about whether a “complaint” is bona fide and may serve to discourage those who may well have mixed motives for making a complaint. The expression or drafting of a “complaint” should not require the sophistication or knowledge of an experienced industrial lawyer or legal advice regarding whether it should in fact be made.
Care should also be taken before construing the term “right” in
s 341 in a manner which may have more far-reaching implications for the meaning of that term when it is employed elsewhere in the Fair Work Act. When considering the construction of these provisions, there is an obvious need to balance the legitimate interests of both employees and employers in a manner consistent with the objects of the Act as a whole and the objects of Part 3-1.[165]
[165] [2014] FCAFC 167, p.4 at para.12.
The evidence before the Court was that the Applicant had contacted STOPline, which was an organisation retained by the Respondent
and which specialised in whistleblowing, investigations and forensic technology. In his affidavit evidence, the Applicant stated that he spoke to an unidentified female person and told her “about the 16 August email and my requests to Mr Anderson and Mr Koulis to have this removed”.[166] He also told her that he “wanted to make a complaint about Mr Anderson and Mr Koulis”.[167] The Applicant stated that he later spoke to a person from STOPline by the name of ‘Bob’ who told him that “an IT specialist would need to secure the server and check if the email could be deleted” and that “it would be necessary to investigate who had sent the email”.[168] He stated that he complained to ‘Bob’ about the fact that “Mr Anderson and Mr Koulis had refused to help or protect” him.[169]
[166] Affidavit of John Bartolo filed 4 June 2014, p.5 at para.23.
[167] Ibid.
[168] Ibid, p.5 at para.24.
[169] Ibid.
It was the evidence of Mr Koulis that the Applicant had notified the executive team, in its meeting on 20 August 2012, that he had contacted STOPline and that they “had a forensic IT investigation capability which he had requested the services of and that Mr Anderson would shortly be contacted by a STOPline investigator”.[170] This is consistent with the oral evidence given by Mr Anderson.[171]
[170] Affidavit of George Koulis filed 7 July 2014, p.5 at para.20.
[171] Transcript of Proceedings, 22 July 2014, at p.230.
The letter from STOPline, which was given to Mr Koulis on
23 August 2012 by Mr ANDREW McLEISH, is dated 21 August 2012 and addressed to Mr Anderson.[172] It sets out “the scope of the services we will provide”.[173] The scope of services deals only with the forensic services with respect to the capture and examination of data with respect to the email. It proposed that they report directly to
Mr Anderson or a person nominated by him. There is no mention of any complaint about either Mr Anderson or Mr Koulis. It would be strange for STOPline to propose that they report to Mr Anderson if there had been a complaint made by the Applicant about Mr Anderson. It was Mr Anderson’s evidence that he was never aware of such a complaint.
[172] Affidavit of George Koulis filed 7 July 2014, at Annexure “GK-01”.
[173] Ibid, Annexure “GK-01” at p.1.
I conclude, from the above, that the circumstances in which an investigation initiated by the employer can constitute adverse action will depend on the particular circumstances of the case. In this case,
the investigation was initiated by Mr Mildenhall arising from the receipt by him of the 16 August 2012 email. It was his evidence that “[t]he alleged behaviour described in the email was of such a degree of inappropriateness that I was concerned that it could constitute breaches of legislation and could be unlawful”.[195]
[195] Affidavit of Bruce Allan Mildenhall filed 8 July 2014, p.2 at para.6.
In this case, the allegations were well known to the staff of the Respondent as copies of the 16 August 2012 email had been sent to them. It would have been surprising if the Respondent had not initiated some form of investigation. Indeed, the Applicant himself wished to have the issue of the source of the email investigated. The investigation was not presented as a disciplinary process and Mr Mildenhall stated,
“I did not then believe the allegations in the email were likely to be true”.[196]
[196] Affidavit of Bruce Allan Mildenhall filed 8 July 2014, p.2 at para.5.
I am satisfied that, at the time that the decision was made to conduct the investigation, the outcome was unknown. It was not a situation where the Applicant was charged by the employer with any misconduct. A failure to conduct an investigation would have left the Applicant in the position where serious allegations had been made about him and circulated amongst employees whom he was required to manage.
It would have been an untenable situation for both the Applicant and the Respondent if the matter had not been appropriately dealt with.
It would have been remiss of the Respondent not to have investigated the sending of the 16 August 2012 email and the allegations it contained. This is particularly so when this was not the first occasion when allegations or rumours of improper behaviour had been raised.
It was also appropriate to engage an investigator who was outside of the organisation. Given those circumstances, it was not the conduct of the investigation itself which altered the status or standing of the Applicant in his employment. The injury to the Applicant was not the decision to conduct an inquiry, but the fact that allegations about him had been anonymously circulated to the staff.
The Applicant continued to hold the position of Director of Residential Care and to be a member of the executive team. His remuneration was not affected. It was Mr Anderson’s evidence that the Applicant was directed not to attend the facilities. This was denied by the Applicant and he continued to visit the facilities until the time he went on sick leave. Any threat to the Applicant’s employment came not from the fact that an investigation was initiated by the Respondent, but from the findings of the investigation and his own behaviour.
I am unable to see where, on the facts in this case, the initiation of the Aitken Partners’ investigation was adverse action. If I am wrong in that conclusion, then I am not satisfied that the investigation was initiated for reasons including the STOPline complaint. First, because I am not satisfied that there was a complaint and second, because I am satisfied that the investigation was initiated before the Respondent became aware that the Applicant had contacted STOPline.
Was the 24 August 2012 letter adverse action?
On 24 August 2012, Mr Anderson sent a letter to all staff advising them that the company email system had been hacked and that an investigation had been initiated.[197]
[197] Affidavit of Mark Anderson filed 7 July 2014, at Annexure “MA-12”.
The Applicant submitted that, by circulating the letter, he suffered a “very significant and severe blow to his reputation”.[198] The Applicant’s oral evidence was that he was distressed by the 24 August 2012 letter because the offending email had been sent on 16 August 2012 and he was not told that the Respondent was doing anything about it until
22 August 2012. This is inconsistent with the evidence that the Applicant was informed of the Aitken Partners investigation on
20 August 2012 at the executive team meeting.
[198] Transcript of Proceeding, 21 July 2014, p.20 at lines 28-29.
I am satisfied that any blow to the Applicant’s reputation occurred because of the circulation of the 16 August 2012 email and not because of the 24 August 2012 letter. The 24 August 2012 letter refers to allegations “against a number of staff members”.[199] The Applicant is not specifically named. It is not stated to be a disciplinary investigation and refers specifically to the ability of employees to use the STOPline service if they wish to raise any issue in confidence.
[199] Affidavit of Mark Anderson filed 7 July 2014, at Annexure “MA-12”.
As I have already formed the view that the Aitken Partners’ investigation was not adverse action, I am therefore not satisfied that informing employees of the investigation was adverse action, particularly where they were already aware of the allegations contained in the 16 August 2012 email.
If I am wrong on that, and the 24 August 2012 letter was adverse action, then I am not satisfied that its wording or circulation to employees of the Respondent was for a reason including the Applicant’s STOPline complaint. I accept Mr Anderson’s evidence that he was not aware of any complaint made to STOPline by the Applicant. I also accept his evidence that he was happy for STOPline to conduct the forensic investigation as contained in their proposal. I further accept that the decision not to engage STOPline was made because Mr Anderson and Mr Koulis were concerned about a possible conflict of interest because the Applicant knew the investigator and had spoken to him about the investigation. I also note that the 24 August 2012 letter encouraged staff to raise issues of concern to them with STOPline.
The other adverse action claims
Mr Anderson admitted that, at a meeting on 8 September 2012, he told the Applicant that he would need to convince him that it was appropriate for him to remain in employment, or “[w]ords to that effect”.[200] He denied saying to the Applicant that he should consider resigning or he would face the sack. I accept the evidence of
Mr Anderson. I am satisfied that the employment of the Applicant was less secure in a real way as a result of Mr Anderson’s statement and that it therefore amounted to an alteration of his position to his prejudice.
[200] Transcript of Proceeding, 22 July 2014, p.238 at line 36.
On 11 September 2012, Mr Anderson wrote to the Applicant formally directing him to cooperate with the Aitkin Partners’ investigation.[201]
The letter warned him that a failure to do so would “constitute a breach of your employment contract”.[202] I accept that this letter also had the effect of making the Applicant’s employment less secure because it put him on notice that the Respondent would consider a failure to comply with the direction as a breach of his contract,
giving rise to the potential for his contract to be terminated. It was therefore an alteration of his position to his prejudice.
[201] Affidavit of Mark Anderson filed 4 July 2014, at Annexure “MA-15”.
[202] Ibid.
The Applicant also relies on a Report made by Aitken Partners to the Board on 24 September 2012 and a ‘recommendation’ by
Aitken Partners that he be dismissed as constituting adverse action.
The Report itself makes no recommendations. There is no evidence that Aiken Partners made any recommendation to the Board with respect to the termination of the Applicant’s employment. At best,
it can be stated that the Board, after considering the Report and obtaining legal advice from Aitken Partners, made a recommendation to Mr Anderson that the Applicant’s employment be terminated.
I accept that the conclusions in the Report were damaging to the Applicant and made his employment less secure in a real way.
The Report was therefore an alteration of his position to his prejudice.
Clearly, the recommendation of the Board to Mr Anderson that the Applicant’s employment be terminated was an alteration of the Applicant’s position to his prejudice and the termination of his employment was adverse action for the purposes of s.342, Item 1(a) of the Act.
Was the adverse action taken for a prohibited reason?
The question of why an employer took adverse action against an employee is a question of fact. The leading authority on the approach the Court should take to determining this question is the High Court decision in Board of Bendigo Regional Institute of Technical and Further Education v Barclay& Anor (2012) 290 ALR 647 (“Barclay”). In the joint judgment of French CJ and Crennan J, their Honours set out the following:
There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in
s 361, as requiring only an objective inquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. 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?”.
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer ….[203]
[203] (2012) 290 ALR 647, p.657 at paras.44-45.
After examining the history of the legislation, Gummow and Hayne JJ, considered that the reasoning of Mason J in General Motors-Holden Pty Ltd v Bowling (1976) 12 ALR 605 with respect to s.5(4) of the Conciliation and Arbitration Act 1904 (Cth) was applicable to the relevant provisions of the Act. At paragraph 86 of the judgment,
their Honours said:
With respect to the onus borne by the employer, Mason J stated:
Section 5(4) imposed the onus on the [employer] of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the [employee], in order to succeed, was not bound to adduce evidence that the [employer] was actuated by that reason, a matter peculiarly within the knowledge of the [employer]. The [employee] was entitled to succeed if the evidence was consistent with the hypothesis that the [employer] was so actuated and that hypothesis was not displaced by the [employer]. To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view,
is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the [employer] the onus of proving that which lies peculiarly within his own knowledge.[204][204] Ibid, p.667 at para.86.
In National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139, Gray J made the following observations about the onus imposed by s.361 of the Act after referring to the High Court’s decision in Barclay and, in particular, paragraphs 44 and 45 of that decision:
Although their Honours appear to focus on the ascertainment of the reason why adverse action was taken, it is clear from the passage as a whole that this was not intended to shift the focus from the question posed by the Fair Work Act itself. A party seeking to rebut the presumption created by s 361(1) of the
Fair Work Act that the action was taken for the reason, or with the intent, alleged by the opposite party, must grapple with the establishment of the negative proposition that the action was not taken for the alleged reason or with the alleged intent. Further,s 360 of the Fair Work Act recognises expressly that action may be taken for more than one reason. What the party seeking to rebut the presumption must do is to establish on the balance of probabilities that the alleged improper reason was not a reason for the taking of action. Generally (although as a matter of logic, not necessarily) the evidence as to the state of mind of the decision-maker or decision-makers will include evidence as to what are claimed to be the actual reasons for the decision. Even if the reasons advanced as actual reasons for the decision are accepted as such, the absence of evidence that there were no additional reasons, or that the actual reasons did not include the alleged proscribed reasons, will usually result in a failure to rebut the presumption.[205][205] (2013) 234 IR 139, p.146 at para.20.
There is an issue in this matter concerning who was the decision-maker. It is clear that the ultimate decision to terminate was made by
Mr Anderson. The evidence he gave was that he was informed of the Board’s recommendation that the Applicant be dismissed on
24 September 2012. He indicated to Mr Mildenhall on that day that he accepted the recommendation. He gave instructions to Aitken Partners to draft a letter of termination on 27 September 2012 and the letter was provided to the Applicant on 1 October 2012.[206]
[206] Affidavit of John Bartolo filed 4 June 2014, at Annexure “JB-13”.
I am satisfied that, while the decision to terminate was ultimately that of Mr Anderson, a reason for the termination given by him was the recommendation of the Board. The reasons of the Board in giving that recommendation are therefore also material in determining the question of what the reasons were for the adverse action.
The Applicant contended that the statement by Mr Anderson that he needed to be convinced that the Applicant should remain in employment was adverse action and that a reason for this adverse action was his STOPline complaint and his 8 September 2012 complaint. The latter appears to consist of two aspects:
·His report to the police; and
·
His complaint about the further dissemination of the
16 August 2012 email.
I have already made findings with respect to the alleged STOPline complaint and I do not need to deal with that further.
With respect to the complaint to the police, Mr Anderson’s evidence was that he “wasn’t concerned”[207] about a police investigation and spoke to the police when they attended at the corporate office.
With respect to the complaint about the further dissemination of the
16 August 2012 email, Mr Anderson’s evidence was:
I appointed the CCC at Footscray to liaise with the IT manager and investigate the sending of the fax and that all preliminary findings were to be handed to the investigating team as part of the ongoing investigation.[208]
[207] Transcript of Proceeding, 22 July 2014, p.238 at para.24.
[208] Affidavit of Mark Anderson filed 7 July 2014, p.16 at para.115.
There is nothing to suggest that the discussion with the Applicant on
8 September 2012 was motivated by either of these complaints.
The meeting on 8 September 2012, in my view, needs to be seen in the context of Mr Anderson’s evidence about the Applicant’s behaviour since the instigation of the Aitkin Partners investigation and the advice to the Applicant that both he and the Applicant were to be excluded from participating in the investigation. I refer in particular to
Mr Anderson’s evidence that:
·On 21 August 2012, the Applicant told him that he had been at the Footscray facility and the corporate office and had spoken to a junior staff member about who might be involved in sending the email and his belief that a resident had been told by an employee about the allegations. He instructed the Applicant to stay out of the investigation;[209]
[209] Ibid, p.14 at para.95.
·On 28 August 2012, the Applicant and Ms Alguera-Lara began issuing disciplinary letters to staff which were inconsistent with the Respondent’s practices and procedures;[210]
·The further issuing of letters to staff directing them to attend meetings with the Applicant and Ms Alguera-Lara during the following week;[211]
·
The complaints received by Ms Robinson from staff on
7 September 2012 about being summoned to meetings with the Applicant and Ms Alguera-Lara;[212]
·The Applicant’s assertion that he could summon staff to a meeting at any time and did not need to provide them with a reason for the meeting; an assertion contradicted by Ms Robinson;[213]
·A further complaint received by him from a manager of another facility about the Applicant questioning her about her recent job applications and referees and the implication by the Applicant that her job was not “safe”;[214] and
·He was concerned that the Applicant continued to disobey the direction to stay out of the investigation.[215]
[210] Ibid, p.15 at para.111.
[211] Affidavit of Mark Anderson filed 7 July 2014, p.16 at para.117.
[212] Ibid, p.17 at para.122.
[213] Ibid, p.17 at para.124.
[214] Ibid, p.17 at para.126.
[215] Ibid, p.18 at para.132.
I am therefore not satisfied that the adverse action taken by
Mr Anderson on 8 September 2012 was for reasons that included a reason prohibited by s.340 of the Act.
The Applicant contends that the directive by Mr Anderson to attend a meeting with the independent investigator was adverse action and that a reason for the adverse action was the:
·STOPline complaint;
·8 September 2012 complaint; and
·Statement to the police made by him on 9 September 2012.
I have already dealt with the issue of the STOPline complaint.
I consider that there is no real distinction between the oral complaint to the police and the written statement.
It was Mr Anderson’s evidence that the decision to bring forward the investigator’s interview with the Applicant was made in consultation with Mr Mildenhall “in view of the information that had come to light regarding the contract cleaners and the recent events that had transpired”.[216] This is clearly a reference to the events set out in paragraph 134 of his affidavit.[217]
[216] Affidavit of Mark Anderson filed 7 July 2014, p.18 at para.132.
[217] Ibid, at p.18.
It was Mr Anderson’s evidence that he was informed that the Applicant had agreed to attend a meeting but after attending briefly, withdrew from the meeting. The letter of 11 September 2012 directing the Applicant to attend a meeting with the investigators stated:
I am told that this [the withdrawal from the meeting] was on the basis that you required to know first whether Mr Curtain had determined who had sent the emails. I understand that he did not provide a response to you on the basis that he was still in the course of conducting the investigation into that issue and that it would be premature to disclose what he had learned.[218]
[218] Ibid, at Annexure “MA-15”.
In addition to directing the Applicant to attend, the letter warned that lack of cooperation could lead to the investigators drawing certain inferences and that they would be required to draw conclusions without receiving his comment on the information or the allegations.
There is no evidence to link the direction to attend the meeting with the investigator with any complaint made by the Applicant to the police.
It was inevitable that, at some point in the investigation,
the investigators would wish to interview the Applicant. It was reasonable, on the information he had, for Mr Anderson to direct the Applicant to attend such an interview. There was no reason why an interview with the investigators about the allegations could inhibit any investigation the police might make about the source of the emails or their dissemination.
I am not satisfied that the direction given to the Applicant to attend a meeting with the investigators was adverse action taken for any of the reasons claimed by the Applicant. It therefore did not contravene s.340 of the Act.
I am not satisfied that the evidence discloses that Aitken Partners made any recommendation that the Applicant be dismissed. The Report presented by them was damaging to the Applicant but it was not action taken by the employer against the employee and could not therefore contravene s.340 of the Act. The Report notes that the Applicant had commenced personal (illness) leave. The only comment in relation to that is:
We cannot dispute those certificates (and are conscious that he may indeed be medically unfit for work) but do not consider that [the Applicant] has made any reasonable effort to comply with the direction to be interviewed.[219]
[219] Exhibit R22, Interim Report prepared by Aitken Partners, addressed to Bruce Mildenhall, Chairman Doutta Galla Aged Services, dated 24 September 2012 at p.7.
The Applicant contends that the recommendation by the Board that his employment be terminated was for reasons which included:
·The STOPline complaint;
·The 8 September complaint;
·The police complaint; and/or
·His absence due to illness since 12 September 2012.
Evidence was given for the Board by Mr Mildenhall, the Chairman of the Board. It was his evidence that he was not aware that a STOPline investigation or complaint had been lodged before the decision to initiate the Aitkin Partners investigation. It was conveyed to him that contact had been made and he did not recall any more detail than that. Mr Mildenhall denied that he did not want STOPline to conduct an investigation; he saw STOPline as an “independent process”.[220]
[220] Transcript of Proceeding, 23 July 2014, p.310 at line 46.
Mr Mildenhall stated that he was aware that the Applicant had made a complaint to the police but he was not aware of the details of it.
He also stated that he was aware that there was some contact by the police and that his agreement with Mr Anderson was that they offer their “full cooperation”.[221] Mr Mildenhall accepted that the possibility of the police interviewing people at the Respondent would be undesirable because it “would indicate to me, as the Chair of the Board, that there … may be … an internal issue … that I ought to be concerned about”.[222]
[221] Ibid, p.314 at line 25.
[222] Transcript of Proceeding, 23 July 2014, p.315 at lines 35-36.
Mr Mildenhall stated that the Report from Aitken Partners was instrumental for the Board in making its decision that the recommendation should be made to Mr Anderson that the Applicant be dismissed. He identified significant personnel practices that concerned him (in relation to appointments being made without the oversight of
Mr Anderson, or with participation of others in interview panels,
with disregard for the disclosed offence of obtaining financial advantage by deception and that the person was not qualified for the advertised position) and “extremely shoddy practices”[223] with respect to the arrangements entered into with Lazamdan (the arrangements were not transparent; there was no documentation; and the potential that one of the lowest paid members of staff could be contracted for one of the most important contracts for the whole organisation).
[223] Ibid, p.331 at lines 13-16.
Mr Mildenhall also stated:
I was also particularly concerned that despite my request … and the specific instructions from the CEO [Mr Anderson], not to get involved in conducting his own investigation … [the Applicant] … defied my request, defied the CEO's instruction, and undertook … this series of interviews, and other activity …[224]
[224] Ibid, p.332 at lines 22-26.
With respect to things outside of the Report that had influenced the recommendation, Mr Mildenhall cited the Applicant’s defiance of
Mr Anderson and the Board’s investigation and the ructions in the management team. In response to the question, “[s]o there was a live question in your mind as to whether he was just trying to avoid the investigation by going on sick leave?”, Mr Mildenhall replied:
Well, I really didn’t know. I really didn’t know, but … what was far more important to me was that to the extent that he had disobeyed my request to him, the board’s investigation and the CEO’s instruction to him. That was 95 per cent of the argument and then I saw this and it was nowhere near as significant, as I have no knowledge or – no. I can’t really comment on whether he was ill or not.[225]
[225] Transcript of Proceeding, 23 July 2014, p.334 at lines 44-47 and p.335 at lines 1-3.
I am satisfied that there was sufficient substance in the
Aitken Partners Report and the discussions between Mr Mildenhall and
Mr Anderson concerning the Applicant’s behaviour for the Board to have concerns about the impact on the Respondent of the Applicant’s practices and failure to comply with directions to consider him to be a liability to the organisation. I am not satisfied that the recommendation of the Board was for reasons which included prohibited reasons under s.340 of the Act, nor am I satisfied that a reason for the termination was the Applicant’s temporary absence from work because of illness within the terms of s.352 of the Act.
The Applicant contends that the termination of his employment by
Mr Anderson was for reasons that included:
·The STOPline complaint;
·The 8 September 2012 complaint;
·The police statement;
·The temporary absence due to illness or injury;
·The accident and injury notification; and/or
·His WorkCover claim.
Mr Anderson gave his reasons for the termination of the Applicant’s employment at paragraph 198 of his affidavit:
My reasons for deciding to terminate [the Applicant] were the following:
(a)[The Applicant’s] attitude to normal management processes and behaviours and specifically his unwillingness to cooperate and share decision making responsibilities with the rest of the executive, being
Ms Robinson, Mr Koulis and myself.
(b)The feedback that I received regarding [the Applicant] from Ms Steel [a life and executive coach engaged by the Respondent] over the period of February 2012 to August 2012. Ms Steel informed me that there was a problem in the executive team and this problem was [the Applicant]. Ms Steel was of the view that
[the Applicant]was not a team player and would not work with Ms Robinson or Mr Koulis. Ms Steel was of the view that Ms Robinson and Mr Koulis were
“high performing” and she had no concerns regarding their ability to work as a team.
(c)The direct disregard by [the Applicant] of my direction that Ms Alguera-Lara was not to be appointed to the Footscray manager role while I was on annual leave in August 2012.
(d)[The Applicant’s] repeated disregarding of my explicit directions to him not to be involved in the investigation of the 16 August 2012 email or the allegations in that email.
(e)[The Applicant’s] interrogation of staff with
Ms Alguera-Lara on 7 September 2012 and his attempts through those interrogations to ascertain the author of the 16 August 2012 email. I considered this to be bullying behaviour.
(f)The Sunday meeting on 9 September 2012 at the Williamstown coffee shop where [the Applicant] “ambushed” me with all of the facility managers. I felt that the purpose of that meeting was that
[the Applicant]wanted to show that he had
“absolute power” and was attempting to show that he ran the organisation and that I needed to leave him to do what he wanted to do.
(g)The recommendation of the Board on
24 September 2012.[226]
[226] Affidavit of Mark Anderson filed 7 July 2014, pp.25-26 at para.198.
At paragraph 201 of his affidavit,[227] Mr Anderson expressly denied that his reasons included any of the reasons alleged by the Applicant.
With respect to the provision of the incident and injury form and the WorkCover claim, his evidence was that the decision to terminate had already been made prior to the Applicant presenting these documents.
[227] Ibid, at p.26.
I am satisfied that the evidence shows that the reasons advanced by
Mr Anderson were genuine and real concerns for him and that there was substance in those reasons. I am further satisfied that those reasons did not include the reasons alleged by the Applicant and denied by
Mr Anderson in paragraph 201 of his affidavit.[228]
[228] Affidavit of Mark Anderson filed 7 July 2014, at p.26.
For these reasons, I am not satisfied that the Respondent contravened ss.340 or 352 of the Act.
I certify that the preceding one hundred and seventy-six (176) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 19 February 2015
Exhibit R2, Extract from Doutta Galla Aged Services Ltd Nurses Enterprise Agreement 2009
[AE 8721581 PR991441], p.51 at cl.48.
Key Legal Topics
Areas of Law
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Civil Procedure
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Employment Law
Legal Concepts
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Costs
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Jurisdiction
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Procedural Fairness
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Standing
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