Begley v Austin Health

[2013] FMCA 68

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BEGLEY v AUSTIN HEALTH [2013] FMCA 68

INDUSTRIAL LAW – Adverse action claim – whether employee sought to exercise a workplace right – whether applicant raised her classification with employer – whether applicant’s redundancy a sham – whether applicant’s dismissal resulted from classification dispute in any event. 

Fair Work Act 2009 (Cth), ss.340, 341, 360, 361
Workplace Relations Act 1996

The Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32

Applicant: JACQUELINE BEGLEY

Respondent: AUSTIN HEALTH

File Number: MLG 2 of 2012

Judgment of: Burchardt FM

Hearing dates: 11, 12, 13 & 14 December 2012

Date of Last Submission: 14 December 2012

Delivered at: Melbourne

Delivered on: 7 March 2013

REPRESENTATION

Counsel for the Applicant: Mr  Addison

Solicitors for the Applicant: Maddison & Associates

Counsel for the Respondent: Mr Forbes

Solicitors for the Respondent: Lander & Rogers Lawyers

ORDERS

1. The application be dismissed. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 2 of 2012

JACQUELINE BEGLEY

Applicant

And

AUSTIN  HEALTH

Respondent

REASONS FOR JUDGMENT

Introductory

1. The applicant, Ms Jacqueline Begley, worked for Austin Health and various predecessor bodies from March 1992 until 2011.  Her employment ceased according to the respondent because her position had been made redundant. 

2. The applicant says that the redundancy was a sham and that she was dismissed because she had pressed issues with management about her level of classification. 

3. For the reasons that follow, I think that although Ms Begley was very unfairly dealt with, I do not think she was dismissed because she had pressed matters to do with her classification.  The respondent wanted to dispose of Ms Begley’s services to save money and to apply the money saved, eventually, towards another position instead, that of records manager. 

4. The case ran over a number of days and evidence was heard from two witnesses on behalf of the applicant and eight witnesses on behalf of the respondent.  In order to put the dispute between the parties in its proper context in view of the fact that there are factual disputes between the parties, it is necessary, unfortunately, to paraphrase the evidence of the witnesses in some detail. 

The Applicant’s Evidence-in-Chief

1. The applicant gave evidence that she is now employed as a supervisor at Kings Transport.  It emerged in cross‑examination that she has been employed there for three months and that her salary is substantially lower than it was at Austin Health. 

2. Ms Begley started work as an ordinary hand on 25 March 1992 and was subsequently transferred to the role of mail services clerk, a position she fulfilled until she was appointed a supervisor of mail services in 2004.  She continued in that capacity until 2009. 

3. In about September 2008 there was a review of mail and courier services which led to the formation of a manager’s position.  This process appears to have involved external consultancy, and it should be noted that reviews, restructures and reorganisations appear to be very much the norm of the respondent. 

4. Ms Begley was asked to prepare a position description for the role of manager and what is called an Employee Impact Statement (“EIS”).  This is a document designed to explain to all concerned, and most particularly the employees affected, what happens when restructures and/or redundancies take place, if I understand the matter correctly.  This request was made by Mr McDowell, whose present title is Executive Director, Commercial and Infrastructure Services. 

5. While there was a selection process, Ms Begley said Mr McDowell made it clear she would be appointed manager. 

6. On 27 February 2009, Ms Begley was sent a letter from the respondent (exhibit A3) which confirmed her appointment as Manager, Mail and Transport Services, and that her classification was HS4-admin officer grade 4. 

7. Ms Begley confirmed that she had not been aware of an email chain (exhibit A4) from November 2008, which related to the restructure, until 2009. 

8. Although Ms Begley was happy with the job offer, she raised concerns that the pay she would be receiving was less than she was already getting as a supervisor.  She contacted the respondent to have a review of pay and Mr McDowell said it was a mistake which he would rectify. 

9. Ms Begley was made aware of an email chain discussing her classification between Mr Gogel, the then human resources manager, and Mr McDowell; a copy of it was sent to her in 2009.  That email (MFI 1) records that the classification was a “low end grade 4 at best.” 

10. Exhibit A5 confirms that on 24 March 2009, Ms Begley’s pay was increased as she had requested. 

11. Ms Begley said that while she was not satisfied with the offer contained in exhibit A5, she did not raise her concerns at the time.  She said she had raised concerns before that but had had no input into the classification process. 

12. Ms Begley said that her first performance review was held on

    
    

    24 June 2009.  She told Mr McDowell that she was not happy with her pay and classification rate, but he said that was the decision he and

    
    

    Mr Gogel had made.  She understood that she was classified under the Award but paid an over-Award payment. 

13. In June 2010, Ms Begley wrote to Mr Gogel complaining, in effect, that other employees were employed at the same level as her with substantially less responsibilities.  Mr Gogel replied (exhibit A6) that:

    “In determining whether your position is properly classified, you need to look at the award classification descriptions, rather than at other positions.”

14. Mr Gogel’s reply went on to say that if she was dissatisfied with her classification she should raise that with “Michael” (Mr McDowell). 

15. In fact, Ms Begley did not raise the matter with Mr McDowell but, she said, she raised it with a Ms Freeman at a meeting on 8 December 2010.  Ms Freeman was by then her direct supervisor and they had fortnightly meetings.  Ms Begley said they had discussed various issues, including her classification.  Ms Begley said that other managers had higher classifications than her and she wished to be re-classified.  She said Ms Freeman asked her to do a one page memo to Mr McDowell.  Ms Begley said that the issue discussed with Ms Freeman was not about pay per se, but about the classification and that Ms Freeman had said she would get back to her.  In fact, nothing happened thereafter until Ms Begley wrote (exhibit A7) to Ms Freeman on 17 March 2011.  This email refers to the salary classification discussion in December 2010, repeats the complaints about being wrongly classified and asks what might be done. 

16. Ms Freeman replied on the same day (exhibit A8) and relevantly stated:

    “I did actually ask Michael about it and he has a plan that he has discussed with Paula, I’ll tell you about it.”

17. The two met thereafter and discussed the plan.  Ms Begley said that Ms Freeman told her Paula Jeffs (the incoming human resources manager) was looking at her own department and would look at Ms Begley’s department as well. 

18. By this stage a Steering Committee dealing with the possible engagement of a records manager was underway and Ms Begley was on the committee.  She was also on the Paper Records Committee.  As part of her function she managed both central registry and archives.  Ms Begley said she was not certain when she started as a member of the committee, but thought it was January 2011. 

19. Ms Begley said that Ms Jeffs did not follow up on her plan, but that she herself did.  She said she had discussed the matter with Ms Freeman on 23 March 2011.  She said that the matter was discussed at later follow-up meetings also (although she did not give dates). 

20. Ms Begley said that at “the next meeting” Ms Freeman told her that Mr McDowell had indicated to Ms Freeman that Ms Begley should not be reviewed individually.  Ms Begley said that this left her unsatisfied.  She told Ms Freeman that other managers had had classifications reviewed, but she would not tell Ms Freeman who they were.  She said that Ms Freeman insisted that she tell her who she was talking about and that she had said she was there to discuss her review only.  She said the meeting became heated. 

21. Ms Begley said that there was a meeting with Mr McDowell on 12 May 2011.  At that meeting Mr McDowell said he was not prepared to review Ms Begley’s classification individually and that this would only be done as part of a larger review.  Mr McDowell said there were numerous complaints about classification from other managers, indeed particularly in human resources, and he was thinking of an external review.  Ms Begley mentioned another position which she said had the same classification as her, even though she was a manager. 

22. Ms Begley said that Mr McDowell asked if she would give him four weeks and that at the end of the conversation he said words to the effect, “Don’t go away and talk bad about me, will you?” 

23. Ms Begley said the Steering Committee was still going at that time and had its final meeting on 7 June 2011.  She had continued to meet Ms Freeman fortnightly.  They met in late May 2011 and there was no mention of a classification review, although there were some discussions about the role of records manager and budget.  The question was whether the records manager could be afforded. 

24. Ms Begley raised her concerns about the position description for the records manager.  In particular, she noted that the position description involved supervision of a records management officer at point 05 to 1.0 EFT (Exhibit A10).  Ms Begley said she asked Ms Freeman what position that was and Ms Freeman said she would investigate and get back to her.  Ms Begley says she told Ms Freeman that this might have an effect upon her, and that Ms Freeman said there would be no effect upon her role.  Indeed, Ms Begley said that Ms Freeman said this more than once at various meetings. 

25. Ms Freeman never got back to Ms Begley about her concerns about the position description. 

26. The next event was a telephone call from Ms Freeman on 6 June 2011.  She invited Ms Begley to come to a meeting with Ms Freeman and Karen Linford from Human Resources to discuss changes.  Ms Begley asked what the changes would be and was told that this would be discussed at the meeting.  Ms Begley said she wanted a representative present.  Ms Freeman insisted that they meet that day but the representative, Pauline Fegan, was not available that day and Ms Begley insisted that something be put to her in writing, which occurred (see exhibit A11). 

27. Ms Begley, Ms Fegan, Ms Freeman and Ms Linford met on 7 June 2011 at 2:00 pm.  That morning Ms Begley had attended a meeting with the Steering Committee about records management issues, which was a final meeting to endorse committee recommendations.  According to Ms Begley, there was no reference to the record manager and all managers were to manage their records (see exhibit A12 being the minutes of the meeting). 

28. Ms Freeman told the meeting that Ms Begley was there to discuss an EIS and changes to transport services.  She was given the EIS (exhibit A13).  Ms Begley said she was told by Ms Freeman that her position was disestablished and that a records manager was to be appointed.  She was also given exhibit A14 which is a letter dated 6 June 2011 offering a voluntary redundancy package together with ancillary calculations.  Ms Freeman went through the EIS briefly and Ms Begley said that there seemed to be discrepancies in the EIS.  Ms Begley said she could not understand why her position was being made redundant to fund the records manager position.  Ms Freeman and Ms Linford said they were re‑organising the Mail and Transport department also and that the manager would report to Ms Freeman.  Ms Fegan asked why Ms Begley was not being made the records manager and Ms Freeman replied that the records manager would require a degree in records management.  The parties disputed this, with Ms Fegan pointing out that Ms Begley had twenty years of employment and supervised a large department.  Ms Freeman replied that Ms Begley would not be considered for the position as she did not have a degree.  Ms Begley asked about the changes to the Mail and Transport department and was told that there would be savings, but not how much.  Ms Begley said she was told to go home and think about it but replied that she would prefer to stay at work.  She was told to go home but said that she was still capable of working. 

29. At this point, Ms Freeman and Ms Linford left for about 15 minutes and when they returned Ms Freeman insisted that Ms Begley go home but she refused.  Ms Freeman told her that her phone would be diverted from 5:00 pm.  She was ultimately told that she could stay but should not bully or intimidate her staff.  In Court Ms Begley said she was horrified by this and that at the meeting she replied that in twenty years she had never bullied or intimidated anyone and did not understand why this was being said to her now.  Ms Fegan also asked why this issue of bullying was being raised and if there had been any complaints to which Ms Freeman replied, “Like you did this morning at the Steering Committee.”

30. Ms Begley described the meeting that morning to the Court and in particular some concerns she had had with the committee’s recommendations.  Ms Begley said in Court there was no explanation given to her why any of her conduct in this regard could possibly have been described as bullying. 

31. Ms Begley told the Court that at the meeting she could not understand why she was made redundant while positions in her department were unfilled.  There had been no discussions about restructure before the meeting that afternoon and she was not offered any other positions.  She said she raised a vacancy in food services but received no response and she identified four positions for herself, none of which drew any response from the respondent.  The meeting ended thereafter. 

32. Ms Begley complained to the Court that normally there is a formal review before a position is made redundant but none had occurred here.  There had been a night courier review six months previously and discussions with the employees before the EIS was issued. 

33. She referred to exhibit A15 as a typical such approach. 

34. Ms Begley said that after the meeting she went back to work and Ms Fegan notified a dispute on her behalf to Fair Work Australia about the lack of consultation in the process whereby she was being made redundant.  Ms Begley herself went to the Chief Executive Officer’s office to request a meeting with him and was instead referred to Paula Jeffs on 9 June 2011. 

35. Ms Begley had notes with her at the meeting with Ms Jeffs which she read out.  These notes are exhibit A16 and Ms Begley says she read out points 1 to 6, but not the matters under the heading ‘Additional notes’. 

36. Ms Jeffs said she was not privy to all of the restructure; that general consultation had taken place.  Ms Begley said no consultation had taken place with her as the manager and employee affected.  Ms Jeffs said the decision was made with other employees but did not say who or how.  Ms Begley asked why other positions were not made available before the EIS was issued, as this generally occurs.  Ms Jeffs said she was not aware of all the details.  Ms Begley referred to the food services position but Ms Jeffs said she did not have details.  Ms Begley asked about the records manager’s position and Ms Jeffs replied that she did not have the skills or ability.  Ms Jeffs said that Ms Begley needed to accept the decision in order to be able to move on and said that she, herself, had been made redundant relatively recently and the first step is to move on.  Ms Begley says she told Ms Jeffs this was not a genuine redundancy because the EIS was wrong. 

37. Ms Fegan’s notification of dispute was heard on 20 and 22 June 2011 before Commissioner Cribb and led to an agreement that Ms Begley could put forward an alternative proposal.  Ms Begley proposed an outcome to mitigate the adverse effects on her own position.  She put forward a funding alternative for the records manager also.  Her proposal, essentially, was that she return to being a supervisor and the current service supervisor be a clerk, both to receive salary maintenance for twelve months.  Ms Begley prepared her alternative proposal and said that she never received more time to do so even though she asked for it.  She said she was told the decision stands and that her proposal was not considered appropriate (see exhibit A17 – an email chain from August to September 2011 between the applicant and Ms Linford about this). 

38. Ms Begley said she was assigned to special projects during her ten day notification period and that indeed, the ten days expanded somewhat.  After 1 July 2011 she was on special projects.  Her job was done by the supervisor and she asked Ms Freeman why as the EIS had said this would be Ms Freeman.  Ms Begley said the supervisor took up her position and was still in it. 

39. Ms Begley said the records manager position was filled 12 months after the EIS when she saw the position advertised.  She also tendered exhibits A17, A18 and A19 which are emails in August and September 2011 requesting the formal review document (A17), the email attaching the alternative proposal dated 27 June 2011 (A18), and the refusal of the executive to provide a written response sent to Ms Fegan on 5 July 2011 (exhibit A19). 

40. She also tendered an EIS from the restructured courier services, dated 15 February 2012, (exhibit A20). 

41. Ms Begley gave evidence of her membership of the PSS Super Fund, which is a defined benefit scheme, and that her benefits have been rolled over and she said that while her benefit might be about $358,000 on retirement, she is not now able to contribute to PSS, although she could do if she was reinstated.  She tendered exhibit A21 being a 2008 email in which she queried the classification for her forthcoming job, and exhibit A22 being the email from Mr Gogel to Mr McDowell about her classification in 2008. 

The Applicant’s Evidence under Cross-Examination

1. Ms Begley confirmed her appointment to supervisor of mail and courier services in 2004 (exhibit R1) and that following the redundancy of the manager of mail and transport she had been re-classified in 2005 (exhibit R2). 

2. She confirmed that there had been restructures from 2004 through to the present. 

3. Ms Begley confirmed that in 2005 a new grade structure was introduced and it applied to her (exhibit R3) and that she was appointed at grade 2.  She confirmed that she did not raise any concerns about this level of classification with Mr Gogel. 

4. She confirmed that in 2008 she prepared a position description for the new management position and also the EIS.  She said there was no guarantee she would get the job and that she had never written a position description for a manager before.  She said she had left the classification and salary details to Mr Gogel and Mr McDowell.  She confirmed that she was invited to apply for the new position in February 2009 (exhibit R4). 

5. She confirmed that at this time she had a good relationship with Mr McDowell and that she was told at a meeting in October or November that the issue of classification did not concern her.  The respondent tendered exhibit R5, being Ms Begley’s application for the position in 2009.  Ms Begley said that Mr McDowell had been on the selection panel and that she was the successful applicant. 

6. Ms Begley confirmed her appointment letter (exhibit A22). 

   
   

   Ms Begley said that she was, in fact, getting paid as a HS2, more than what this job offered at level 4. 

7. Ms Begley confirmed she was paid an over-Award payment for being on-call 24/7.  She confirmed that Mr McDowell responded to her complaint about her pay quite quickly and this led to the further letter (exhibit R6) in March 2009, which corrected the mistake. 

1. Ms Begley said she was concerned about the process because she was not comfortable preparing a position description while not knowing the classification level or pay.  Nonetheless, she knew that she would be made redundant if she did not apply and for that reason, she accepted the new job as mail and transport manager. 

2. Ms Begley said that she had a performance assessment on 24 June 2009 with Mr McDowell at which time, she said she raised her classification and rate of pay.  When challenged about this by counsel, she said that she was certain about what she had said.  Ms Begley said she had asked Mr McDowell if her classification was appropriate for the level of responsibility, and that he had replied, “That’s what Keith and I determined and that is what it is going to stay.”

3. Ms Begley said she was happy with the money she was being paid and that although she knew about other managers having different classifications, she did not raise these people at the meeting and had only said that her own classification was wrong.  Counsel took her to the record of the meeting (exhibit R7) but while Ms Begley conceded that Mr McDowell had talked about everything except performance, and that there was no reference to classification in the document, she nonetheless said they had discussed classification. 

4. Ms Begley confirmed that she did not raise the issue of pay or classification before raising it with Ms Freeman approximately 12 months later.  She said that she thought that once she was established in the role this would be recognised.  Ms Begley said that Ms Freeman started work in early 2010 and by June 2010 there had been a management change and Ms Freeman had been put in charge of mail and transport.  Exhibit R8 records a meeting of the team in June 2010 which itemised some of these changes at paragraph 3.3. 

5. Ms Begley confirmed that although she had raised her classification level with Mr Gogel in June 2010, she did not raise this with Mr McDowell, although she had intended to.  She next raised it with Ms Freeman in December 2010. 

6. Ms Begley confirmed that in October 2010, a new working party had been set up to consider Austin Health’s Records Management and Archives Policy (exhibit R9). 

7. Ms Begley said that Ms Freeman got the group up and running, although the first meeting was chaired by Brendan Murphy, the CEO.  This group morphed into the Steering Committee and Susan Fone was dedicated to the committee.  Its last meeting was 7 June 2011. 

8. When cross-examined about her second performance review in October 2010, Ms Begley said she was doing well and that Mr McDowell, who conducted the review, said “Everything’s fine; you’re fine.”  She went on to say that people do not question Mr McDowell. 

9. Counsel took Ms Begley to the meeting of 8 December 2010 with Ms Freeman.  Ms Begley said she asked Ms Freeman if her classification could be reviewed.  She said that she was aware that other managers were on a higher classification than her, being Michael Noa and Ray Sedgwick, both of whom were classified as HS5s. 

   
   

   Ms Begley said she was aware of other inconsistencies, such as the food services coordinator.  She said she told Ms Freeman that she wanted to be recognised in the same way as others in the directorate because others were a higher classification than her with the same duties and responsibilities. 

10. Ms Begley said that she told Ms Freeman it was not about the pay; that she wanted to be treated in the same way as other managers.  She said Ms Freeman said if she wanted a pay-rise she should put a one page memorandum about that to Mr McDowell.  Ms Begley replied that it was not up to her to put something in writing when she was asking to be re-classified.  She said Ms Freeman said she would take the matter up with Mr McDowell. 

11. It was put to Ms Begley that there were changes in January 2011 when a position was not filled upon resignation of an employee.  Ms Begley confirmed that this was a position in central registry and that she had said that the occupant was retiring and her position would not be filled on a permanent basis at that stage. 

12. Ms Begley confirmed that the Steering Committee ramped up in 2011 once Ms Fone was onboard, but it was not clear to her from these meetings exactly what was happening about the records manager; rather, it had been made clear by Ms Freeman and Ms Fone outside meetings.  She said there was very little discussion in the meetings and a position description was never tabled.  Although she was taken to exhibit R10, being a record of the Steering Committee’s meeting on 6 April 2011, Ms Begley maintained her assertion there was very little discussion about the records manager position in the meetings, but only outside. 

13. Ms Begley confirmed that she wrote to Ms Freeman in March 2011 following up her classification issue and that she received a prompt response which asserted that Mr McDowell had a plan.  She met Ms Freeman on 21 March 2011 at which meeting, Ms Freeman said Mr McDowell had a plan for an external consultant.  In fact, there was no plan but Paula Jeffs was going to look at it and review Ms Begley’s classification while looking at some of her own employees.  Ms Begley denied being told by Ms Freeman that she had better hand this matter over to Ms Jeffs.  She continued to deny that she was seeking a pay-rise rather, said she was concerned with the classification.  Ms Begley said that Mr Gogel had made it clear to her that she should fit within the definitions in the EBA. 

14. Ms Begley confirmed that at one stage Ms Freeman asked her if she wanted to go onto a management contract and that she did not know that other managers were already on contract.  She confirmed that she told Ms Freeman she did not want to go onto contract because it would affect her superannuation, her RDO approvals and her terms of employment. 

15. Ms Begley confirmed that she raised concerns about her role with Ms Freeman and in particular, she had looked at the position description for the records manager, which had an Equivalent Full Time report who would be the central registry manager, and she said that Ms Freeman assured her that this was not the case. 

16. It was put to Ms Begley that her meeting with Ms Freeman on 4 May 2011 was heated.  She said that they discussed another employee whose classification had been reviewed.  The employee concerned was Madeline Dorman, and Ms Begley confirmed to the Court that in her view, the classification review had led to a pay increase.  Although she did not say this to Ms Freeman, as I understand it, in Court Ms Begley said that Ms Dorman had been reviewed and reclassified quickly whilst she had been pursuing the matter for months. 

17. It appears that Ms Dorman had told Ms Begley that she had approached Mr McDowell and Ms Freeman because she was taking on additional duties, and that Mr McDowell said he would review her and increase her classification.  Ms Begley confirmed before the Court what upset her was that Ms Dorman’s review had been completed and she was being told that hers could not be done. 

18. Ms Begley confirmed that at the meeting on 4 May 2011, Ms Freeman asked who she was talking about and she refused to say.  She said she was there to discuss her review.  She denied slamming her books down and storming out. 

19. There was a further meeting with Mr McDowell and Ms Freeman on 12 May 2011.  Ms Begley told them that her classification was not consistent with that of other managers.   She conceded, when questioned by counsel, that classification goes hand-in-hand with pay in any event.  She denied repeating her demands to Ms Freeman for a pay-rise and said that she made it clear that she was happy with her salary. 

20. At the meeting Mr McDowell said there were numerous complaints about classification from Human Resources and that he was not prepared to look at Ms Begley’s request as an individual, only as a group.  He said he was considering an external consultant.  Ms Begley stuck to her evidence that she remembered mention of a four-week period.  She said Mr McDowell said “Give me a further four weeks to look at your classification; you might do worse if it is done now.”  She confirmed that the meeting had been amicable until the comments at the end when he said “Don’t go away and talk bad about me.” 

21. Ms Begley confirmed that she was contacted for a meeting on 6 June 2011 and that Ms Freeman said she wanted a meeting about the Mail and Transport department and about what the changes would mean for her.  Ms Begley said she knew changes would impact upon her but had not thought that the appointment of a records manager would affect her job. 

22. Ms Begley confirmed that she had obtained the position description for the records manager from the S: drive.  

23. Ms Begley said she did not recall saying to Ms Freeman “do you think I will stand around and take this like all the other managers”. 

24. The meeting duly took place the next day with Ms Begley’s representative present.  Ms Freeman had initially insisted the meeting take place on the same day but Ms Begley had requested representation. 

25. Ms Begley confirmed that the meeting commenced at 2:00 pm and identified exhibit R11 as the EIS and other documents given to her on that date.  She said Ms Freeman took the lead and used the EIS.  Ms Begley said that the way she was dealt with was not the process generally used.  She said she was asked to go home and take ten days in which to work out which option she wanted to take as to voluntary redundancy or redeployment.  She confirmed that voluntary redundancy was more generous and that she wanted to get financial advice, which she did. 

26. Ms Begley said in Court that she disagreed with the EIS, as did Ms Fegan.  Ms Begley said she was asked to go home and then was directed to do so.  She said this was unusual and that she had experience of other redundancies, having been manager when staff were made redundant six to eight months earlier.  She said she was told to leave immediately and indefinitely.  She said Ms Linford told her not to bully and that “now you can return to that area but you are not to bully or intimidate other staff”. 

27. She denied that Ms Linford said to her that she continued to be bound by the Austin’s Code of Conduct.  Ms Begley confirmed that she continued to be paid until she finally ceased employment in October 2011.  Ms Begley confirmed that she contacted the Chief Executive Officer’s secretary and that this led to a meeting on 9 June 2011 with Paula Jeffs at 9.30 am.  Ms Begley said she went to Ms Jeffs because her redundancy was a sham and that the real reason was because of her re-classification request. 

28. Ms Begley said that she told Ms Jeffs some of what had happened in the meeting and read through her points.  She said she talked about the food services position and also about the lack of due process.  She confirmed that Ms Jeffs took over Human Resources on 1 July 2011. 

29. Ms Jeffs said the redundancy was genuine but she was not across changes in Ms Begley’s area.  Ms Jeffs said she did not know who the decision-maker had been.  The meeting with Ms Jeffs was amicable and Ms Jeffs spoke about her own redundancy.  Ms Begley said the position of the project compliance officer, food services, was vacant.  Ms Jeffs said she would look into it and get back to her. 

30. Ms Begley said she could not understand why shuttle supervisors were to report to Mr McDowell, why her functions had been split or why the EIS on page 1 was different from page 2.  She said that what was described on page 2 did not occur.  She said the supervisors reported to Ms Freeman only for a short period and then a person was put between the supervisors and the director of supply. 

31. Ms Begley said that John Kyriakou picked up all her duties and staff all stayed with the same unit and nothing changed.  She said that the supervisor in the mail department did the central registry and archives work that she did.  She said that Joe Neill, the Director of Supply and Contracts, had put somebody else in between himself and the supervisor.  Ms Begley said that Ms Fegan had sought information on the records management position and wanted to know if it was benchmarked against other hospitals (see exhibit R13 – an email from Ms Fegan to Ms Linford dated 14 June 2011).  The email at exhibit R13 also includes a position description for the records manager but Ms Begley said this was not the position description she saw on the

    
    

    S: drive because the EFT had been removed.  Ms Begley confirmed that a records manager who does have a degree has been appointed. 

32. She confirmed there had been no consultation before the decision was made to dismiss her, and that this had led a dispute being notified by Ms Fegan to Fair Work Australia.  She said that this led to her putting a written proposal to the Austin’s full management executive.  She said she prepared a proposal which was discussed with Ms Freeman, Ms Linford and Mr McDowell on 30 June 2011.  She confirmed that the proposal involved her demotion of the then supervisor.  She said she would expect salary maintenance for 12 months which would still be less expensive than redundancy. 

33. She confirmed that Mr McDowell recommended that she put this proposal to the executive and that she told Mr McDowell this was an unusual practice.  She said she did not want to go to the executive but Mr McDowell insisted.  Ms Begley said she felt she was being treated differently but did not understand why.  She never got a written response from the executive, a matter confirmed in exhibit R14; an email from Ms Linford to Ms Begley dated 1 July 2011.  Ms Begley confirmed she did not accept voluntary redundancy (see exhibit A15 – a letter to her from Mr McDowell confirming the redeployment process). 

34. Ms Begley confirmed that she went to one session with an outplacement agent but chose not to go again, and she sent a copy of her curriculum vitae to the Human Resources department after the letter from Mr McDowell.  She confirmed that she was sent redeployment circulars (see for example exhibit R16). 

35. Ms Begley said that after she had raised the departure of the officer in food services, Ms Jeffs got back to her and said that no decision had been made at that time about the position.  Ms Begley confirmed the position was later advertised and that she reminded Austin Health of the obligation to offer positions to her for redeployment.  She said it was very clear to her that Austin Health was only interested in terminating her position and not offering her any other position. 

36. Ms Begley confirmed an email exchange in August 2011 (exhibit R18) between herself and Ms Linford.  In these emails Ms Begley set out her concerns about the redeployment process and the failure of Austin Health to identify opportunities for redeployment prior to vacancies being advertised.  Ms Linford’s reply indicates that the Public Sector Industrial Relations Policy manual guidelines required applications from redeployees. 

37. Ms Begley confirmed that she was paid until termination on 4 October 2011. 

38. Ms Begley was cross-examined about her superannuation situation and confirmed, essentially, that at age 49 she was concerned of the losses that would accrue to her if she was not re-employed by Austin Health until age 55 or 60. 

39. She confirmed that she worked for a very short time at Lander & Rogers (who appear to have dismissed her forthwith on learning about this case, bearing in mind that they are representing the respondent).  She then obtained employment with Kings Transport and has been there over three months on a salary of $43,000 per year plus superannuation.  She confirmed that she assumed Mr McDowell had made the decision to restructure. 

40. In re-examination, Ms Begley confirmed that if you upset Mr McDowell you suffered the consequences.  She also confirmed that the policy that would apply in respect of redundancy was an internal one. 

The Evidence in Chief of Ms Fegan

1. Pauline Fegan is an advocacy mediator and Ms Begley was her client.  She has been representing employees in the health field for 20 years, before which she was an employee of the Health Services Union. 

2. Ms Fegan confirmed that Ms Begley rang her in April 2011 about classification and asked for advice.  After Ms Begley had met with Mr McDowell she spoke with Ms Fegan and Ms Begley told her that Mr McDowell had asked for a further four weeks to look at her classification.  Ms Begley was concerned that the matter was dragging on, but would give four weeks. 

3. The next thing Ms Fegan heard was that Ms Begley had been requested to attend a meeting by Ms Freeman and that she was requested by Ms Begley to attend, which she did. 

4. At the meeting Ms Freeman presented the EIS which made Ms Begley redundant.  Ms Fegan said this came as quite a shock as there had been an endorsement of her position in a meeting held that morning.  Ms Fegan said that Ms Begley pointed out mistakes in the EIS but they were told clearly that the redundancy was to make way for the records manager.  Ms Fegan said she asked why Ms Begley could not be the records manager and was told that a degree was required.  Ms Fegan asked why, saying that Ms Begley was extremely competent, and received no satisfactory answer.  Ms Freeman and Ms Linford were adamant that the records manager would have a degree. 

5. Ms Fegan said she asked why there was no opportunity for Ms Begley to put a proposal, which would be normal process at the Austin Health.  She said usually there was a review within the area, then the EIS and then discussion. 

6. The issue of the kitchen manager’s position was raised as this was vacant and had not been advertised.  No other options were put, a matter which concerned Ms Fegan because Austin Health is an organisation of about 8000 employees. 

7. Ms Fegan says that Ms Freeman then said that it was probably a bit of a shock and Ms Begley would need to think; that her calls were being diverted and that she should go home.  Ms Fegan said she was shocked at this and asked why Ms Begley must go home when she did not want to.  She said that Ms Freeman was insistent that this was the last day that Ms Begley was to be there and that she must hand in her keys.  She said Ms Begley refused to go home and things deteriorated.  Ms Fegan said she had never seen anybody told to leave a hospital straightaway.  There then followed the break. 

8. Upon resumption Ms Fegan said that Ms Freeman and Ms Linford still wanted Ms Begley to go home but she said she was able to do her work.  She wanted to look at options for redeployment, not help to go home.  Ms Freeman then said that Ms Begley could stay so long as she did not bully like she did that morning.  Ms Fegan said that this made her angry and she asked why this was being raised now and received the response there had been a meeting that morning. 

9. Ms Fegan was taken to exhibit A23, being Austin Health’s Redeployment and Redundancy Policy, and confirmed that most hospitals have their own.  Ms Fegan said it was very clear that the respondent was not interested, save in making Ms Begley redundant.  She was handled differently and it was not normal to have a meeting for the EIS. 

10. She said there were various mistakes in the EIS which Ms Begley raised.  She confirmed that she lodged a dispute notice with Fair Work Australia as a result of which, ultimately, Ms Begley was able to put a proposal to Austin Health, although she had limited time.  She confirmed that she had assisted Ms Begley prepare her proposal and that she emailed the respondent about concerns over processes. 

Ms Fegan under Cross-examination

1. Ms Fegan confirmed that the firm she works for is a private company and that Ms Begley is a client.  She confirmed the EIS was given to Ms Begley on 7 June 2011 with the payout figure.  She confirmed that normally employees choose voluntary departure and redeployment and that there is an extra $10,000 paid if the departure is voluntary.  She maintained her position that it was clear that the employer did not want Ms Begley there even though Ms Begley said she was fine.  Ms Fegan said that Ms Freeman was heated about Ms Begley going home and she was angry and forceful. 

1. Ms Fegan confirmed that she has seen hundreds of restructures and that Austin Health has been restructuring more than any other similar body in the last couple of years. 

2. Ms Fegan said she asked if the records manager position was benchmarked and received an inadequate reply.  She notified Fair Work Australia about the failure to consult, which led to two sessions and the applicant putting in a proposal. 

3. Ms Fegan said that Ms Begley was not given assistance like other employees and that she had never been to a meeting where an EIS was given and an employee told to leave there and then.  Initially, Ms Begley was given ten days as a notification period but because of the problems getting her superannuation advice, the respondent gave her extra time. 

The Evidence in-Chief of Paula Jeffs

1. Paula Jeffs is the Executive Director of Human Resources at Austin Health.  She commenced there, after working at the ANZ Bank, in February 2011 in a transitional role during which she reported to Mr McDowell.  She became Executive Director of Human Resources on 1 July 2011.  She had not met Ms Begley before 9 June 2011. 

2. Prior to that she had had several conversations with Mr McDowell because there were people seeking market testing of their roles, although Mr McDowell had not named any individuals to her. 

3. At the meeting on 9 June 2011, Ms Begley expressed concern because she thought that her role was declared to be redundant and she had not been consulted properly.  She was concerned that she had not been dealt with properly as an employee of longstanding and that she had been told not to work.  Ms Begley told Ms Jeffs that she thought this was an orchestrated decision because of her request for salary review and that the respondent was not genuine about redeploying her. 

4. Ms Linford had previously given Ms Jeffs some background and Ms Jeffs told Ms Begley this.  She did not remember if she had looked at the relevant paperwork before the meeting.  She said that she was satisfied that the role was redundant and discussed the options available to Ms Begley. 

5. Ms Begley said that the employer should have consulted with her before the decision was made, but Ms Jeffs disagreed with her.  Ms Jeffs said that she had never spoken with Mr McDowell about salary classification.  She said it was unclear what Ms Begley wanted and she asked her if she would accept she was genuinely redundant.  Ms Jeffs said she told Ms Begley that she could work until her employment finished and Ms Begley said she would get some advice.  Ms Jeffs explained that she had been made redundant herself. 

6. Ms Begley talked about food services and Ms Jeffs followed this up but they had not made a decision at that time.  Ms Jeffs tendered her file note of the meeting (exhibit R20).  Ms Jeffs said that there was a lot going on at the time because there was a challenging financial year ahead.  There were restructures in July 2011 during which the waste management was outsourced and courier services was restructured.  The food services position was eventually advertised and she made Ms Begley aware of it. 

Ms Jeffs under Cross-examination

1. Ms Jeffs was cross-examined as to whether any names had been mentioned to her by Mr McDowell about classification.  She initially denied that there had been any discussion about Ms Begley.  She was confronted with exhibit A8, the email from Ms Freeman to Ms Begley which indicates that Mr McDowell had indeed discussed a plan with Ms Jeffs.  Ms Jeffs said she did not recall people’s names. 

2. She confirmed that the meeting on 9 June 2011 was a normal grievance process and that she had spoken to Ms Linford before this.  Ms Linford had told her why the redundancy had taken place and that Ms Begley was upset. 

3. She confirmed that Ms Begley said to her that the process had not been correct and that there was a difference of opinion as to what was meant by “consultation”.  Ms Jeffs said that the EIS is before the consultation process and did not occur before the applicant was told.  Ms Begley was complaining about this and was told her role had gone.  Ms Begley talked about the respondent having an obligation to appoint her to a comparable role in food services, which she asked for. 

4. Ms Jeffs had discussed the review with Ms Linford and was told that it was decided to free-up funds to pay for the records manager. During the process of the review, the proposition emerged that the applicant’s services could be disposed of. 

5. Ms Jeffs said that she went back to Ms Linford after the meeting and asked her to clarify the issue of redeployment.  She said she also told

   
   

   Ms Begley that her door was open if she was concerned about any issues to do with redeployment.  Ms Jeffs said that anyone on redeployment would receive the employment opportunities and could apply, with others, and that Austin Health would interview and they would get the position. 

6. Ms Jeffs said the food services role had changed and that the applicant might have got the position.  Ms Begley knew the position was available, but did not apply.  Ms Jeffs said that she was aware of Ms Begley’s proposal to the executive but could not recall the financial details.  She did not take the matter back to Ms Begley and had had no discussions with Mr McDowell about her proposal. 

7. Ms Jeffs confirmed that Ms Begley wanted to stay at Austin Health and that she was concerned that Austin Health was not genuine in its redeployment of her.  Ms Jeffs said that she would help the applicant to move forward. 

Brendan Murphy in Evidence-in-Chief

1. Dr Murphy is the Chief Executive Officer of Austin Health, a position he commenced in January 2005.  Previously, he was a Professor of Pathology at St Vincent’s Health.  He reports to the Board. 

2. According to the witnesses, there are about 8,000 employees, 5,500 EFT.  Austin Health’s budget is $700 million and 75 per cent of that is spent on wages and salaries.  He has overall budgetary responsibility. 

3. Mr McDowell is a senior executive at Austin Health.  Dr Murphy sought him out because he had worked with him before.  Dr Murphy is of the view that support services should be efficient, a view Mr McDowell shares.  In 2011-2012, Mr McDowell had to find savings.  He meets with Mr McDowell every two weeks in a formal sense, but there are other meetings from time-to-time. 

4. Dr Murphy chaired the first meeting of the committee set up to deal with the records manager position.  The purpose of this group was to put Austin Health’s records in compliance with the requirements of Public Records Office Victoria (“PROV”), which were not then being met.  He subsequently appointed Ms Fone as Project Officer, and then told Ms Freeman to chair the meetings and work through the matter.  Ms Fone reported to him.  Dr Murphy said it was clear half-way through that it was not possible to be compliant in relation to PROV without a qualified records manager. 

5. In 2011-2012, there was a $20 million budget gap which Dr Murphy discussed with the executive.  They decided to put the decision about a records manager on hold, to await the committee’s recommendation.  Dr Murphy knew Ms Begley and she was at the first meeting of the committee.  He had met her several times over the years. 

6. Dr Murphy had only had one discussion about the applicant’s employment.  Mr McDowell saw him and said that Ms Begley’s role could be replaced and those funds used to pay for the records manager.  Dr Murphy confirmed that he always approves redundancies and approved that of Ms Begley.  This matter was brought to a meeting by Mr McDowell in May 2011 and he approved it.  Dr Murphy said there were many similar discussions because there were 80 redundancies that year. 

7. Subsequently, Ms Begley requested to make a presentation to the executive, at which he was present.  He listened to her and the proposal was discussed.  Dr Murphy was not convinced that Ms Begley had made out her case and that her position was not required.  A substantial number of other persons had been made redundant, including two senior medical positions, a senior position in human resources, 35 maintenance staff and a number of couriers.  There was no manager of Mail and Transport now and another manager took over.  A records manager was appointed in mid-2012.  Dr Murphy confirmed that Mr McDowell had not mentioned anything about the applicant’s pay or classification to him. 

Dr Murphy under Cross-examination

1. Dr Murphy confirmed that he does not check all redundancies in detail.  Redundancies are to obtain efficiency and savings.  He accepts Mr McDowell’s word.  Mr McDowell had told Dr Murphy he could get rid of the applicant and put the money towards a records manager.  He was aware of the Fair Work Australia proceedings, but was not involved in them.  The next thing that happened, from his point of view, was the presentation to the executive in June.  The executive heard the presentation and rejected it.  They did not believe it would deliver the same savings.  Dr Murphy did not recall the exact discussion, but money was the reason for the decision. 

Ian Broadway, Evidence-in-chief

1. Mr Broadway is the Chief Financial Officer of Austin Health, a position he has held since March 2005.  He has extensive experience in the public health system.  In the 2011 financial year there was a necessity for cuts because the Austin lost $30 million and had previously lost $7 to $8 million dollars.  Most funding comes from the Government, although some 20 to 25 per cent comes from fees. 

2. The respondent is organised in directorates and one of the directorate heads is Mr McDowell.  He tried to contribute to savings.  He did not speak specifically to Mr McDowell but did speak to the executive about financial issues.  Eighty per cent of the budget is spent on salary and that is where savings have to be found.  He knew the applicant early on in her employment. 

3. Mr McDowell conducted a review of couriers, and the ramifications included the applicant.  Mr McDowell did not speak to him directly about Ms Begley.  There are budget bids every year, but none was approved for that year.  Although exhibit R21, a budget bid in respect of the records manager from April 2011, was put to him, he did not recall it. 

4. When he first heard of the proposal to employ a records manager from Dr Murphy as a result of changes to legislation, he did not think it was a good look to be appointing somebody in circumstances where the organisation’s position was so financially parlous.  The money saved from the courier review was used to apply to the records manager.  Mr Broadway had told Dr Murphy that the records manager should not be appointed until the budget was sorted out. 

Mr Broadway under Cross-examination

1. Mr Broadway confirmed he had no involvement in the review that led to Ms Begley being made redundant.  He said the courier review was conducted in May/June 2011 but that it was not implemented.  He insisted it not be implemented until the budget was sorted out.  He said the courier review may have been implemented in February 2012 and that a records manager was appointed in 2012 when the budget had improved. 

2. Mr Broadway confirmed he was at the executive when the applicant attended.  She tendered a written proposal.  He said there were some practical issues with it, but he had not done the “numbers” himself.  He said that the main discussion was not about the dollars.  He said that if it had been a good proposal, it would have been accepted. 

Michael McDowell in Evidence-in-chief

1. Mr McDowell is the Executive Director of Commercial and Infrastructure Services at Austin Health.  He commenced at Austin Health in December 2007 in that position.  He applied for and got the job.  He reports to the CEO.  His responsibility is for all non-clinical areas. 

2. Mr McDowell said he has 40 years’ experience in the health sector.  He was committed to improving efficiencies and spending money on frontline healthcare itself.  He said he dismissed 700 people in his first year at St Vincent’s in 1992.  He meets Dr Murphy frequently and has known Ms Begley since 2007. 

3. The applicant’s area is now under the Director of Supply.  He took over Ms Begley’s area in 2008.  In 2008 he had a discussion with Joe Neill.  He had two supervisors, one of whom was not doing well.  Ms Begley was the other, and the better one was asked to take up the manager’s position. 

4. Mr McDowell confirmed that the classification of the applicant’s position was done by Human Resources and the email exchange in 2009 with Mr Gogel that established her classification was tendered (exhibit R22). 

5. Also tendered was the recommendation for the appointment of Ms Begley, which he himself signed (exhibit R23). 

6. He said that the applicant’s rate of pay had become an issue.  Human Resources sent the applicant a letter, which he did not see, and the applicant became upset because her pay was cut.  Mr McDowell said he told Mr Gogel to fix it as soon as possible and that it was embarrassing. 

7. He said that Mr Gogel re-reviewed the rates and the Award and ultimately an over-Award payment was made.  Another letter was sent to Ms Begley. 

8. Mail and Transport were under Mr McDowell’s control from 2008 to 2009 onwards.  He reviewed Ms Begley’s performance in 2009 and said he did not recall the applicant raising classification and pay. 

9. Mr McDowell confirmed that Ms Freeman is the Support Services Manager and reports to him.  She commenced work two and a half to three years ago, at which time Ms Begley was reporting directly to him. 

10. There was a major organisational review which led to Mr McDowell taking over Human Resources.  This involved a lot of work and he decided to give Ms Freeman line responsibility in smaller areas.  She took over responsibility of Ms Begley in June 2010. 

11. Mr McDowell said that between 2009 and 2010 there were no complaints by Ms Begley about her classification or wages.  If there had been, he would have followed up immediately. 

12. The records manager project started in October 2010.  Mr McDowell said he had not been involved in the project but that Ms Freeman was the chair of the working group. 

13. Austin Health is the subject of rigorous budgets.  He said that in February/March, the executive gets the budget forecast.  Cuts were likely to be of the order of $20 million in 2011, according to Mr Broadway. 

14. Costs are usually cut out of non-clinical areas and budget bids are something unique to Austin Health.  There are usually 100 to 150 bids across the organisation. 

15. Mr McDowell said he was asked to bid for a records manager by Ms Freeman and that Ms Freeman and his own Finance Manager, Ms Evans, did the budget.  Mr McDowell thought the need for the position was important and had discussed it with the Chief Executive Officer.  Austin Health needed to be seen to be doing something to comply with PROV requirements. 

16. Mr McDowell said he had heard nothing from Ms Begley about classification or wage rates and that he had an open-door policy.  He said also that he had not seen much of Ms Begley after about June/July 2010 when she ceased to report to him. 

17. In May 2011, Ms Freeman told Mr McDowell that Ms Begley had requested a pay increase. 

18. Ms Jeffs started work in early 2011 reporting directly to Mr McDowell.  The intention was to finish the restructure and then once Ms Jeffs had settled in, she could take over completely.  Various people requested pay reviews, but there was a tough budget in May 2011. 

19. Mr McDowell talked to the head of finance who said they needed an independent review, a matter he told Ms Jeffs about.  It was agreed that Ms Jeffs would conduct independent pay reviews after July, when she took over in full.  Ms Begley was one of those who asked for such review.  Mr McDowell was told about this by Ms Freeman. 

20. Mr McDowell said he was involved with the pay of Madeline Dorman, whose situation was different.  She took over additional duties and another person was not replaced, this leading to savings of money.  Tendered as exhibit R24 was the document re-classifying Ms Dorman dated 27 April 2011. 

21. Mr McDowell said that no other pay increases had been allowed and that everyone had to await Ms Jeffs. 

22. Mr McDowell said that Ms Freeman had told him that Ms Begley was very unhappy that nothing was happening and he had a meeting soon afterwards around 12 May 2011.  He said it was a normal meeting.  He asked what the issue was and Ms Freeman told him that Ms Begley had been asking for a pay review for months.  Ms Begley agreed.  Mr McDowell said it was taking too long and the human resources manager was going to undertake a review.  Mr McDowell said that Ms Begley appeared to accept this and that he heard nothing thereafter. 

23. Mr McDowell said the period from March to July 2011 had been tough for finances and no budget bids were accepted.  There were over 80 redundancies that year, of which 40 were in his own area of responsibility.  Ms Begley was one of them. 

24. He had considered Ms Begley over a number of months.  Her position had been high on his list from early 2011 as an obvious one.  Mr McDowell said he could re-allocate the courier section and discussed this matter with Mr Neill over some months.  The Couriers were to be given to Mr Neill’s area of responsibility and Mail and Archives to Ms Freeman.  This would save $80,000 and it was an easy decision.  As part of his regular contacts with the Chief Executive Officer in about March or April 2011 he raised Ms Begley with him.  The records manager would be funded by the moneys saved by Ms Begley’s removal.  Dr Murphy supported the idea and it was implemented later on.  This discussion with the Chief Executive Officer took place in about late March or early April 2011. 

25. The decision was made before the meeting with Ms Begley in May 2011.  An EIS needed to be done, then personnel procedures followed.  This happened in mid to late May/early June 2011. 

26. All Ms Freeman had to do was work with Human Resources on the EIS.  Mr McDowell said he had little to do with this.  It was left to Ms Freeman and Ms Linford.  It was necessary to re-allocate the duties to Mr Neill very quickly once Ms Begley departed. 

27. Waste management was contracted out at about this time, with five to six redundancies.  There were 30 redundancies in engineering and six in gardens.  A deputy security manager was also made redundant. 

28. Mr McDowell said that he was aware of what an EIS is.  It tells the reasons for redundancy and the various options available to the employee. 

29. Mr McDowell said the issues of pay and classification were irrelevant in Ms Begley’s case.  It was not even an issue.  He was not involved with the hearings in Fair Work Australia. 

30. He said he had a meeting with Ms Begley after the Fair Work Australia proceeding and it was agreed that Ms Begley attend the executive meeting.  She did so and he was there.  Ms Begley was there for 15 minutes and there were questions of her.  When she left, there was discussion.  It was felt that the proposal did not stack up financially and was more complex.  Mr McDowell said he had sought advice about the proposal and that Ms Evans (his Finance Officer) had told him that the numbers did not stack up.  He said that was all he said at the meeting.  He had no further involvement with Ms Begley’s employment after that.  He confirmed that the letter dated 5 July 2011 sent to the applicant by him (exhibit R15) had been drawn up for him by Human Resources. 

Mr McDowell under Cross-examination

1. Mr McDowell confirmed that he was responsible for Mail and Transport and had commenced his employment in 2007.  He said there was a vigorous interview process (I would interpolate and say it is clear that Dr Murphy intended to employ him anyway).  He confirmed that he and Mr Gogel had asked the applicant to prepare an EIS for the position that she eventually filled in 2009. 

2. Counsel put it to Mr McDowell that Ms Begley raised the issue of her classification level with him.  Mr McDowell denied this and said he was not involved.  He said such matters were always dealt with by Human Resources and he did not understand enterprise bargaining agreements (EBA’s) and industrial instruments. 

1. He confirmed, however, that he had looked at the document sent to him by Mr Gogel about the applicant’s employment (MFI-1 subsequently R22).  First off, he said Mr Gogel made the recommendation and he approved it. 

2. Although he could not recall the date of Ms Begley’s interview and appointment to her position, he agreed that it was clear that she was always going to be appointed. 

3. After her employment, Ms Begley was not happy with her classification and wage rate and Mr McDowell said he told Mr Gogel to sort it out.  Mr Gogel recommended an over-Award payment. 

4. Mr McDowell confirmed that he conducted Ms Begley’s review in June 2009.  He said she did not mention classification to him and that if she had it would have been noted on the PRD.  If she had brought it up, he would have referred it to Mr Gogel as he does not understand EBAs. 

5. It was put to Mr McDowell by counsel that in June 2010 the classification was raised with Mr Gogel, and Mr McDowell said he did not recall.  He did not recall exhibit A6, which was Ms Begley’s email to Mr Gogel about her classification and his reply in June 2010.  He said he was not copied into that document. 

6. Mr McDowell said Ms Freeman told him twice that the applicant had sought a pay-rise, once in early 2011 and then again at a meeting later.  He said he believed that Ms Freeman told him that she had had a meeting in December with Ms Begley during which Ms Begley requested a review of her pay.  He told Ms Freeman that there were a number of such requests and to leave it with him. 

7. Some months later it emerged that Ms Begley was very upset that nothing was happening and he discussed the matter with Ms Jeffs. 

8. He was taken to exhibit A8, being Ms Freeman’s email to Ms Begley in March 2011.  He said that the plan therein referred to was that Ms Jeffs would get a reviewer to look at various classification issues including that of Ms Begley. 

9. Ms Begley met with Ms Freeman on 4 May 2011 about classification.  Mr McDowell was not aware that Ms Freeman told Ms Begley that she would not be re-classified. 

10. The next development was the meeting on 12 May 2011.  When questioned, he said that he did not believe that Ms Begley raised classification.  He said he explained the process to review others’ and Ms Begley’s classifications through Ms Jeffs. 

11. It was put to Mr McDowell that he asked for four weeks to review Ms Begley’s classification.  He replied that he found this hard to believe.  Ms Jeffs was to conduct a review on and from 1 July 2011.  He said he did not believe he asked for four weeks. 

12. It was put to him that he had told Ms Begley not to talk bad about him and Mr McDowell said he did not recall saying that. 

13. Ms Freeman implemented the restructure.  The discussion about Ms Begley’s job had taken place in March/April and he thought he could do without Ms Begley’s job and save $75,000 to $80,000.  This gave options to fund the records manager.  After the approval was given by Dr Murphy, he discussed the matter with Ms Freeman and Mr Neill. 

14. The Steering Committee was still meeting at this time but it was always intended to get a records manager, subject to funding. 

15. He confirmed that the Steering Committee concluded on 7 June 2011.  He said the decision about the records manager was not to do with Ms Begley.  He was not on the committee and did not get records of its meetings. 

16. He said he took advice from Human Resources about redundancies but did not tell Human Resources to talk to the applicant when he obtained his first approval from the Chief Executive Officer. 

17. He asked Ms Freeman to work with Human Resources.  Ms Begley was not told until 7 June 2011 of her redundancy.  She was presented with a fait accompli.  He did not speak to Ms Begley between April and June about redundancy.  He said he did not decide to dismiss Ms Begley because of classification issues.  He said it was not his role to discuss the matter with Ms Begley because he left the matter to Human Resources.  He did not prepare the EIS and told Ms Freeman to work with Human Resources to prepare the EIS and deal with other issues. 

18. When taken to the EIS (exhibit A13) Mr McDowell said he did not recall it.  He said he thought he had discussions with Ms Freeman and that $80,000 was a lot of money. 

19. Mr McDowell described the meeting the day before the executive.  He said that Ms Begley walked him through the alternative proposal.  This would not have led to a loss of jobs.  She recommended demotion for herself and for the supervisor, both to remain on salary maintenance.  That was his understanding of it.  He was not able to say if the proposal saved $5,000.  He did not think it stacked up from a financial point of view and had Ms Evans look at it.  Ms Evans told him to go with the original proposal although she did not give Mr McDowell the figures. 

20. Mr McDowell could not recall the questions asked at the executive.  They were not put by him.  Ms Begley was told the decision the same day.  The executive runs from 10am to 12pm and Ms Begley attended at 11.30 am and took about 15 to 20 minutes for her presentation.  Her proposal was discussed for a further 10 to 15 minutes.  He said finance’s feedback was that it did not stack up.  He could not say who had said what.  He said he never wanted to get Ms Begley out of the organisation and was not involved in Ms Begley’s redeployment issues. 

Mr McDowell in Re-examination

1. Mr McDowell confirmed that he asked Ms Freeman and Ms Linford to prepare the EIS and communication strategy.  Meetings were held rapidly with Ms Begley’s staff and all the staff reporting to Mr Neill.  He said he did not understand how Ms Begley’s proposal would work.  He understood it would involve a pay-cut for her subordinate of about $20,000 which would give rise to industrial relations problems. 

Keith Gogel in Evidence-in-chief

1. Mr Gogel is the General Manager of Human Resources at St Vincent’s Hospital and has been there for one and a half years.  He was employed at Austin Health as Manager of Employee Relations for 21 years before that.  He has known Ms Begley since about 1995 and was aware of her career. 

2. Since the early 1990s, he was in charge of classification issues if there was any lack of clarity.  Classification arose out of EBAs. 

3. The EBA introduced a new classification structure with one structure having different grades.  It was a matter of taking position descriptions and putting them to the EBA working group.  He said he had conducted 200 classifications including that of Ms Begley. 

4. He said that the letter sent to Ms Begley in 2005 about her classification (exhibit R3) was a standard letter.  He did not recall receiving a reply to this letter. 

5. Mr Gogel confirmed that he undertook the classification of Ms Begley’s new job in 2009 as Mr McDowell sought his advice.  He said he looked at the position descriptions and the grades in the EBA.  Rates of pay are not necessarily relevant.  He advised Mr McDowell that Ms Begley’s position was a high-end grade 3, low-end grade 4, as set out in exhibit R22.  Ms Begley was appointed. 

6. He said there was a problem with the pay rates some months later.  He said he spoke to Ms Begley regularly.  Ms Begley was dissatisfied with her salary and raised the issue more than once.  He said that he told her to talk to Mr McDowell.  He said that Ms Begley was being paid more than the EBA rate. 

Mr Gogel under Cross-examination

1. Mr Gogel said the classifications were by no means clear in the EBA.  He said classification disputes were common, although not usually frequent.  He said there were two to three a year.  He said a dispute could be dealt with by a supervisor.  He said Ms Begley’s dispute was mainly the pay issue.  He confirmed that he left Austin Health in approximately April or May of 2011. 

2. Mr Gogel said he had had no discussions about the termination of Ms Begley’s employment.  He said he only heard about it after he left.  He said that the applicant raised salary and classification more than once.  He said he had worked with a consultant who might have mentioned Ms Begley’s dismissal to him. 

3. In re-examination, Mr Gogel said that pay was always the issue. 

The Evidence in-chief of Larissa Freeman

1. Ms Freeman is the Support Services Manager at Austin Health.  She commenced employment there in January 2010 after six months as a trainee.  Mr McDowell is her boss and when she started her main role was to support him. 

2. In about July 2010 a change took place.  Mr McDowell became Executive Director of Human Resources and she took up the position of Manager of some services which included Mail and Transport.  Ms Freeman said she met Ms Begley on a regular fortnightly basis.  In about August 2010, Mr McDowell told Ms Freeman that the executive had discussed new PROV standards.  Austin Health had to comply with these standards and a committee was formed to look at the matter.  She was nominated to oversee the project. 

3. Dr Murphy chaired the first meeting and representatives from various departments were present.  She confirmed corporate records is anything except health information and there are also both paper and electronic records.  She said that Ms Fone was appointed in January 2011 as Project Officer and the committee reported to Dr Murphy.  Ms Freeman confirmed that she was on the committee as a member. 

4. Central Registry and Archives was previously with Mail and Transport and there was no records manager in October 2010.  There is now.  This individual started work in about February 2012 or possibly later.  The committee endorsed the idea that a records manager was required in April 2011.  Ms Freeman said she sat on the interview panel.  Formal qualifications were required.  A position description was prepared by Ms Fone in March 2011. 

5. In December 2010, Ms Begley raised with her the issue of wanting a pay-rise.  Ms Freeman could not recall the exact words.  She said it was in comparison to what other managers were paid.  Ms Freeman said she told Ms Begley to put it in writing and that it would have to go to Mr McDowell.  She could not recall Ms Begley mentioning classification.  She did not know if a written request was sent to Mr McDowell. 

6. Ms Begley followed up in March 2011 by email and she wrote back.  She said she had discussed the matter with Mr McDowell, who had a plan.  Other managers were seeking pay-rises and Mr McDowell had planned to organise Ms Jeffs to engage an external consultant to look into the matter.  Ms Freeman says she met Ms Begley at a catch-up meeting and told her all this.  She told her an external consultant would be appointed to benchmark salaries.  She could not recall discussing Ms Begley’s classification at that meeting. 

7. In March 2011, she asked Ms Begley if she wanted to go onto a management contract.  She said that only two managers were not on contract, but she had not pressured Ms Begley to do so.  Ms Begley was not interested because it would affect her superannuation.  She said she had no further contact with Ms Begley about classification and pay.  She said that on 4 May 2011 she met Ms Begley.  Ms Begley said she had found out about another employee who had been given a pay-rise.  Ms Freeman asked her who, but Ms Begley would not say.  The meeting became heated.  She told Ms Begley no-one was given a pay-rise and she said that Ms Begley left the meeting quite suddenly.  Ms Freeman said she knew that Mr McDowell was not giving individual pay-rises.  Ms Freeman said she knew that one employee’s salary had been increased because of a larger role, and this was the salary of Madeline Dorman. 

8. Ms Freeman said the records manager role was discussed in the Steering Committee and the position description for that position was prepared by the end of March 2011.  The applicant was present at a meeting in early April when the position description was endorsed.  It was on the S: drive.  Ms Fone created it and Ms Freeman reviewed it. 

9. Ms Fone prepared a budget bid for the records manager role (exhibit R21).  It was not approved.  There was a budget gap that year.  Ms Freeman identified a file note of the 4 May meeting (exhibit R25).  She recorded a note to talk to Mr McDowell about Ms Begley’s salary, but had no recollection of a discussion of position description.  At the meeting, Ms Begley queried the fact that the records manager had EFT reports and whether this would impact on her department.  Ms Freeman told Ms Begley that her EFT mailroom would not be lost. 

10. Ms Freeman said she went to see Mr McDowell and told him that Ms Begley was upset.  She told him that Ms Begley did not believe her about the engagement of an external consultant and insisted that somebody had been given a pay-rise.  As a result, Mr McDowell offered for all three to meet, which they did, on 12 May 2011. 

11. At the meeting on 12 May 2011, Mr McDowell told Ms Begley his intentions were that once Ms Jeffs was in her job, there would be an external consultant engaged.  Ms Jeffs was due to start at the end of June or beginning of July.  Ms Freeman said it was a calm meeting and Ms Begley seemed satisfied.  Ms Begley said she was not being paid equal to other managers, but she did not say who. 

12. Following the meeting, Mr McDowell met Ms Freeman in the week ending 20 May 2011.  He said that it was possible to fund the records manager position and make Ms Begley redundant.  Mr McDowell told Ms Freeman that he had spoken with Dr Murphy and the idea was approved.  She had not known Ms Begley would be retrenched before this. 

13. Mr McDowell told Ms Freeman to draft the EIS and work with Ms Linford on it.  She had done EISs before so she started work on it.  An EIS outlines the changes that impact employee roles.  Central Registry and Archives was to be divided up.  There was to be a new records manager.  Mail remained with her department and Transport was transferred to Mr Neill.  She proved exhibit R26, being notes relating to the transfer. 

14. Ms Freeman felt it was a rushed process.  It took about a week.  She confirmed that the records manager position required qualifications.  She said that Ms Linford contributed from a human resources perspective, and that together an EIS draft was prepared (exhibit R26).  She gave the final draft to Mr McDowell for review and spoke to Mr McDowell a couple of days before the draft EIS was prepared on 19 May 2011 (exhibit R27).  The last draft of the EIS was on 1 June 2011.  The next step was to meet with Ms Begley.  They also needed to tell other affected staff. 

15. Ms Begley was given no warning before the 7 June 2011 meeting.  Ms Freeman contacted her by phone on 6 June and told her that she wanted to talk about changes that would affect her role.  Ms Begley wanted to bring her representative and Ms Freeman spoke to Ms Linford for advice.  She rang Ms Begley again and it was arranged to meet the next day.  Ms Freeman’s file note made on 6 June 2011 was tendered (exhibit R28).  The record of the statement, “Do you think I’m going to stand around and take this like all the other managers it’s happened to” was said by Ms Freeman to have been a comment made by Ms Begley.  Ms Freeman assumed that Ms Begley was referring to other redundant managers. 

16. A meeting took place on 7 June 2011.  Ms Linford, Ms Freeman, Ms Begley and Ms Fegan were present.  Ms Freeman said she talked through the EIS and talked about change.  Ms Linford then took over.  There was not a lot of discussion and Ms Begley was given a bundle of documents (exhibit R11). 

17. Ms Freeman said they agreed to meet again in about a week to see how Ms Begley was going with redeployment.  Ms Linford gave Ms Begley the opportunity to leave and to stay home.  Ms Begley did not want to stay home.  Ms Freeman and Ms Linford left the room and talked and upon return said that Ms Begley could stay in her role.  There had been a meeting of the Steering Committee that morning but Ms Freeman had not attended it and she did not recall mentioning the meeting to Ms Begley. 

18. Ms Freeman was aware of the proceedings in Fair Work Australia, which she attended.  Ms Begley prepared an alternative proposal and provided it to her and Ms Linford.  She met Ms Begley to discuss it on about 29 or 30 June 2011.  Following that meeting, Ms Freeman, Ms Linford and Mr McDowell met, and possibly Ms Evans and Mr Neill were present.  There was then another meeting with Ms Begley the day before the executive.  That meeting was short.  The main thing was that Ms Begley was allowed to address the executive.  Ms Begley had been sick after the meeting of the executive and had not returned to work. 

Ms Freeman under Cross-examination

1. Ms Freeman confirmed that Ms Begley was to report to her from July 2010 onwards.  She had met Ms Begley several times about classification.  The first time was on 8 December 2010.  Ms Freeman could not recall whether Ms Begley said she had raised classification matters with Mr McDowell and Mr Gogel.  Ms Freeman said that Ms Begley said she was not paid equally in comparison with others and referred to an executive assistant employed at HS4 and managers at HS5 doing the same work as her.  Ms Begley said she was not paid correctly in the context of the classification structure.  Ms Freeman confirmed that she spoke to Mr McDowell after Christmas and before 17 March 2011, the date of exhibit A8 being the email sent to Ms Begley.  Ms Freeman said that Ms Begley was raising classification.  This matter was discussed at the next catch-up meeting in March.  Ms Freeman said she told Ms Begley that there were a number of requests for pay-rises and Mr McDowell intended an external review.  This involved group services, Ms Begley and others. 

2. Ms Freeman said she met Ms Begley on 4 May 2011.  Ms Begley referred to an individual who had been given a pay-rise. She asked who it was and the meeting became heated.  Following a phone call on

   
   

   5 May 2011, she set up a meeting with Mr McDowell on 12 May.  At the meeting, Ms Begley said that her classification was wrong and that she wanted it reviewed.  Mr McDowell did not say “Give me four weeks” nor did he say “Don’t talk bad about me.”  Mr McDowell told Ms Freeman that Ms Begley was going to be made redundant a couple of days before 19 May 2011, this being the date she started work on the EIS.  Mr McDowell had not told her in April that Ms Begley would be made redundant. 

3. When questioned by counsel as to why she did not tell Ms Begley what was going on, Ms Freeman said she was told by Human Resources to wait for the EIS.  Ms Freeman said that 7 June 2011 was the beginning of the consultation phase.  Ms Begley was told that the job was going in order to fund the records manager position.  She confirmed the EIS (exhibit A13).  The final draft was given to Mr McDowell on or before 1 June 2011.  Mr McDowell approved its wording. 

4. The decision on 7 June 2011 to dismiss Ms Begley was irrevocable.  There had been a meeting of the Steering Committee that morning and Ms Freeman was aware of the outcome.  Ms Freeman was taken to exhibit A12, the minutes of the meeting of the Steering Committee on

   
   

   7 June 2011.  It was put to her that there was no endorsement of the records manager position.  Ms Freeman did not know when the budget bid for the records manager was rejected, but she did know that the records manager was not appointed until a much later time.  The funds freed up by the dismissal of Ms Begley were not used to employ a records manager. 

5. On 7 June 2011, she met with Ms Linford, Ms Begley and Ms Fegan.  At the meeting, Ms Freeman told Ms Begley she was redundant and would go on redeployment.  Ms Linford invited her to go home.  Ms Freeman denied Ms Linford said she wanted her to go home.  Ms Begley wanted to stay at work.  Ms Linford and Ms Freeman left the room and later returned.  Ms Freeman again denied saying that they told Ms Begley they wanted her to go home.  She denied saying anything about bullying or harassment at the meeting earlier that morning.  She accused Ms Begley of lying in this regard in saying so. 

1. Furthermore, I note that Mr McDowell was in no way hostile to Ms Begley.  Not only had he got her the new job but he gave her a glowing report (see page 7 of exhibit R7). 

2. It is possible that Ms Begley may have mentioned her classification level and rate of pay at this meeting, as alleged at paragraph 23 of the amended statement of claim, and it is also possible that Mr McDowell responded that the classification level had been determined by Mr Gogel and that it was correct.  I make this observation because Mr Gogel had, indeed, classified the position and, as I have indicated already, I accept that Mr Gogel’s classification was correct.  Nonetheless if matters went this far, which on the balance of probabilities I do not think occurred, it certainly went no farther.  It would not have been a matter likely to have greatly concerned Mr McDowell or occupied much of his time. 

3. On any view, nothing further happened about the question of Ms Begley’s classification until June 2010.  The email exchange on 16 June is exhibit A6.  Ms Begley noted that a position description of an HS4 level administrative officer was, in fact, outlined in the duties of an executive assistant.  I note that she went on to say:

   “Given my role has been recently reviewed in line with the organisation’s award levels I am seeking your advice as I have been intending to discuss my classification level with my manager.

   As a current manager classified within the same grade, admin officer grade 4, can you please clarify how these positions descriptions are similar in substance, particularly given I manage 26 subordinates/staff members within my team and I have budgetary responsibility?  It appears to be inconsistent.”

4. I note that if Ms Freeman is correct, she took over as Ms Begley’s supervisor at about this time.  Ms Freeman put the change at about July 2010 and Mr McDowell said it was in June. 

5. Nonetheless, the terms of exhibit A6 would suggest, to the extent that they suggest anything, that Ms Begley had not discussed her classification level with her manager prior to this time. 

6. Mr Gogel’s reply relevantly stated:

   “In determining whether your position is properly classified, you need to look at the award classification descriptions rather than other positions.  If after doing that you feel your position is incorrectly classified because it satisfies the award classification description for a higher grade, you could only pursue that by raising of with Michael.” (sic)

7. This reply suggests that Mr McDowell was still Ms Begley’s supervisor at that time and goes, once again, to reinforce the proposition that Ms Begley had not raised her classification issues with him before then. 

Events after the Appointment of Ms Freeman

1. By no later than July 2010, Ms Freeman had taken over as Ms Begley’s direct supervisor.  This change accompanied a number of other significant organisational changes.  One notes that Ms Begley had only been changed in position as recently as 2009 following a

   
   

   re-organisation arising in 2008.  As I have said before, Austin Health seems afflicted by constant change. 

2. Notwithstanding Mr Gogel’s clear intimation to Ms Begley that she was correctly classified and that if she wished to take the matter further she should do so with Mr McDowell, Ms Begley did nothing until about 8 December 2010.  This was so notwithstanding another performance review in October 2010 (see paragraph 25, amended statement of claim - a matter not admitted by the respondent’s defence – a surprising proposition given that the relevant documentation would be well-available to it). 

3. Ms Begley said this was a standard regular catch-up meeting with Ms Freeman.  They discussed several issues and one was her classification.  As I have indicated, she said she raised the proposition that other managers were at a higher classification than her and she wanted a re-classification.  She said that Ms Freeman asked her to do a one page memorandum to Mr McDowell. 

4. Ms Freeman’s version of the events was that the meeting did take place but what Ms Begley wanted was a pay-rise.  She made the comparison with what other managers were being paid.  Ms Freeman told the Court, however, that she did not recall the applicant mentioning classification.  She said that she did not know whether Ms Begley had followed up by sending a written request to Mr McDowell. 

5. I think it is clear that Ms Begley did raise the question of her classification, because a subsequent email to which I shall come makes this apparent.  Equally, however, I accept Mr Gogel’s assertion that classification is always about pay.  This is, in my view, conformable with commonsense.  What I suspect is that Ms Begley did ask to be reclassified, but did so in the context of complaints to the effect that others were earning more than her by being classified at higher levels. 

6. Ms Freeman did not get back to Ms Begley.  It is clear that Ms Begley did not do anything further until she sent her email to Ms Freeman on 17 March 2011 (exhibit A8). 

7. From that exchange of emails, it is obvious that Ms Begley did raise her salary classification in December and she repeated her concerns about her classification in the email.  Ms Freeman’s reply was:

   “Yes, let’s talk about it at our catch up.  I did actually ask Michael about it and he has a plan that he has discussed with Paula, I will tell you about it.”

8. At this point, it is necessary to go back a step to look at a parallel series of developments that were to have significant effects on Ms Begley’s employment.  As indicated by Dr Murphy, in 2010 it had become apparent that Austin Health was not adequately managing its records in accordance with the legislative requirements of PROV. 

9. A committee was set up in October 2010 and as a mark of the significance of the issue, Dr Murphy chaired the meeting (see exhibit R9). 

10. Ms Freeman appears to have chaired the committee meetings until the appointment of Ms Fone as Project Manager in early 2011. 

11. Although Ms Begley was a member of that committee, it does not appear that Ms Begley, at least initially, understood that the appointment of a records manager, something clearly envisaged from the start, would be likely to impact upon her own position.  Although Ms Begley is adamant there was little discussion about the records manager position at the meetings, the fact is that the Steering Committee recommended the appointment of a records manager and there must have been some element of discussion at least. 

12. In January 2011, Ms Jeffs had commenced her employment although she did not take over her full duties which were posited to happen in July.  At that point, Mr McDowell was still heavily involved in the management of Human Resources. 

13. It seems clear from exhibit A8 that Ms Freeman had discussed Ms Begley’s classification and pay with Mr McDowell and it is equally clear that Mr McDowell had discussed this with Ms Jeffs. 

14. These were not, however, the only developments that were likely to affect Ms Begley.  Mr McDowell had already marked her down for redundancy.  It seems clear that her position was identified by him in early 2011 as being one that it would be appropriate to shed.  By March or April he had actioned this proposition in his discussions with Dr Murphy. 

15. All this was, of course, happening during the year of financial stringency in the course of which substantial numbers of employees were made redundant. 

16. It seems to be common cause that following the exchange of emails in March 2011, Ms Freeman met with Ms Begley and it appears they may have met more than once to discuss Ms Begley’s ongoing query about her re-classification.  She met Ms Begley on 23 March 2011 and told her about the plan that Ms Jeffs would be looking at a number of individuals.  I accept Ms Begley’s evidence that Ms Freeman told her that Mr McDowell said she was not to be reviewed as an individual.  That outcome is consistent with what Mr McDowell was seeking to do. 

17. There followed the meeting on 4 May 2011 at which Ms Begley again told Ms Freeman of her dissatisfaction.  This dissatisfaction, it is clear, had been honed by the fact that in the meantime, Ms Begley had spoken with Ms Dorman who had given Ms Begley the impression that she had received a pay-rise.  Ms Freeman wanted to know who was the employee who had got a pay-rise and Ms Begley refused to tell her.  Indeed, the industrial climate, as it affected Ms Begley at least, was such that even in the witness box she had to be pressured to reveal that it was Ms Dorman she was referring to.  As I remarked during the trial, the paradox is that Ms Freeman was also well-aware that it was Ms Dorman that Ms Begley was likely to be referring to.  It is a reflection of a somewhat immature response on behalf of both of them that they did not come out with what was in fact ultimately obvious to both of them, namely that it was Ms Dorman with whom they were concerned.  (I would interpolate at this point and say that it is clear from the materials filed that Ms Dorman was not re-classified but rather received more money for doing a larger job). 

18. Following this meeting there was a further meeting on 12 May with Mr McDowell, Ms Freeman and Ms Begley.  Mr McDowell made it clear he was not prepared to review her classification individually and that this would be done as part of a larger review.  He said there were numerous complaints about classification from other managers, particularly in human resources, and he was thinking of an external review. 

19. There are two issues only of relevant factual dispute about this meeting.  It concerns whether or not Mr McDowell asked for four weeks to fix it up and whether or not he told Ms Begley not to talk bad about him. 

20. I think that Mr McDowell did not ask for four weeks to fix things up.  He had made it clear he was proposing that Ms Jeffs would conduct an external review and Ms Jeffs, on any view, was not due to take up her full position until July.  It is wholly inconsistent with everything else that everybody agrees Mr McDowell did say for him to ask for four weeks. 

21. On the other hand, I think it is entirely consistent with Mr McDowell’s personality that he would have ended an otherwise amicable meeting with a remark telling Ms Begley not to talk bad about him.  Quite what gave rise to this comment is not clear but I have no doubt that he said it.  Ms Begley’s evidence on this point was convincing.  The denials by Mr McDowell and Ms Freeman were not. 

22. Although there is a dispute as to the timing of the meeting it is common cause that at a meeting in May 2011, Ms Begley raised with Ms Freeman her concerns about the position description for the proposed records manager (exhibit A10).  On page 3, there is a reference to supervision of a records management officer (0.5 – 1.0 EFT).  I accept, because Ms Freeman admits it, that she said words to the effect that she would investigate and that it would not have any effect upon Ms Begley’s role. 

23. I accept that the position description for the records manager had been prepared by April 2011 and I suspect that the meeting, whether it was the 4 May meeting or otherwise, was well-before the end of the month.  Ms Freeman did not know at this stage that Ms Begley was likely to be made redundant and that suggests that this was earlier in the month. 

24. In the week ending 20 May 2011, as Ms Freeman said, she was told by Mr McDowell that he could fund the records manager by making Ms Begley redundant.  I accept that Mr McDowell told Ms Freeman that he had spoken with Dr Murphy and the idea was approved. 

25. Things then had to move quickly for reasons that are not particularly clear.  Ms Freeman herself said that the preparation of the EIS was hurried.  She and Ms Linford got on with it and had it available by the end of the month. 

26. The draft EIS was completed by 1 June 2011.  This was quick work from the first draft on 19 May 2011 (exhibit R27). 

27. Co-extensively with this process, administrative steps were being put in place to transfer staff to Mr Neill following Ms Begley’s departure (exhibit R26). 

28. As Ms Freeman put it, the next step was to tell Ms Begley.  I accept that Mr McDowell had little involvement in any of this process other than to approve the EIS.  He had a lot of other matters to attend to. 

The Process of Ms Begley’s Dismissal

1. On 6 June 2012, Ms Freeman rang Ms Begley, apparently out of the blue, and told her she wanted a meeting.  Her notes, apparently made on the day, are exhibit R28.  It is not clear if some of these were prepared as talking points before the call or were prepared, as I suspect is more likely, as notes after the event.  They appear, in fact, to be in two different styles of handwriting.  Ms Begley wanted to be represented, and I note that it is recorded “we are prepared to be flexible in reason”. 

2. Nonetheless, it is clear that Ms Freeman was insisting upon a very rapid meeting.  Ms Begley’s insistence on a representative and something in writing was ultimately acceded to. 

3. I accept the evidence of Ms Freeman that the words, “Do you think I’m going to stand around and take that like all the other managers it has happened to?” were said by Ms Begley.  It is consistent with Ms Begley’s perfectly proper capacity to stick up for herself that she would have replied in such a fashion, and it is simply unlikely that Ms Freeman has deliberately gone to the trouble of producing a forged note of this sort. 

4. The meeting on the following day cannot have been any great pleasure for anybody.  In many ways, the accounts of the meeting are essentially the same, reflecting the different perspectives of the parties. 

5. It should be noted, however, that the final meeting of the Steering Committee had taken place that morning.  Consistent with the eventual outcome, it is clear that the Steering Committee recommended the engagement of a records manager and that the person concerned should have formal tertiary qualifications, which Ms Begley lacked. 

6. The meeting in the afternoon was commenced by Ms Freeman telling Ms Begley that the meeting was to discuss an EIS and changes to Transport Services.  She then gave the EIS and various other documents that together constitute exhibit R11.  Ms Begley was told that her position was disestablished and that a records manager would be appointed. 

7. Ms Begley says, and I accept, that none of these matters had been raised with her before.  By this I take her to mean that the consequences of the appointment of a records manager had not been explained to her.  She must have known that a records manager was to be appointed. 

8. Ms Freeman went through the EIS briefly and Ms Begley, I accept, said that there were discrepancies in it.  Essentially, Ms Begley and in due course Ms Fegan, queried the re-allocation of duties that were taking place and asked why Ms Begley could not be the records manager. 

9. It is clear that Ms Freeman said this was not possible because Ms Begley did not have a degree. 

10. The real area of dispute about this meeting is the extent to which Ms Freeman and/or Ms Linford sought that Ms Begley go straight home and not return, and whether or not Ms Begley was accused of bullying and harassment. 

11. I have no doubt whatever that Ms Begley was told to go straight home.  Although ostensibly this might seem to be a reasonable and compassionate reply to the shock of retrenchment, I do not think that this was what motivated both Ms Freeman and Ms Linford.  When the matter was raised, Ms Begley said she wanted to continue working.  The disagreement became significant enough for Ms Freeman and Ms Linford to take a break.  At some point Ms Begley was told that her phone would be on divert from 5.00 pm. 

12. I accept that Ms Begley strenuously resisted being sent home.  I accept Ms Fegan’s evidence that this was a very unusual step and one that affronted her, both personally and on Ms Begley’s behalf.  I have no doubt that tempers all round became somewhat frayed.  I accept the evidence of Ms Linford that Ms Begley said dismissive things about and to her and Ms Freeman.  Such a response was eminently understandable given the treatment Ms Begley was receiving. 

13. In the ultimate, Ms Begley was allowed to stay at work. 

14. I have no doubt that Ms Begley was told at the meeting on 7 June 2011 she could return to work, but only if she did not bully or harass staff.  Ms Begley burst into tears in Court when describing the matter.  Not only was this emotion clearly genuine, but Ms Fegan’s anger at the matter was equally obviously genuine too.  Counsel for Austin Health sought to finesse the matter very skilfully by suggesting that this may have been a misunderstanding of Ms Linford telling Ms Begley to adhere to the Code of Conduct.  I do not accept that explanation. 

15. The respondent’s witnesses conceded that Ms Begley had not done anything at the meeting earlier that morning of the Steering Committee to justify a warning against bullying and I accept that that is so.  Nonetheless, Ms Begley must have said something that had been reported to Ms Freeman and/or Ms Linford (neither of whom were at the meeting as the minutes make clear) to provoke them to this utterly unjustified comment.  Even if the words used were to the effect that Ms Begley should conform with the Code of Conduct, there is no earthly reason why it would have been necessary to refer to it.  I accept the evidence of Ms Begley and Ms Fegan and I do not accept the evidence of Ms Freeman and Ms Linford in this regard. 

16. Nonetheless, Ms Begley was not satisfied by the outcome of this meeting and Ms Fegan notified a dispute to Fair Work Australia.  The net result of that meeting was that Ms Begley was allowed to put an alternative proposition. 

17. Ms Begley did indeed produce a counter-proposal which essentially involved her and the then supervisor both being demoted with salary maintenance for 12 months. 

18. This proposal was considered by a number of people including Mr McDowell, apparently at least for information, Mr Neill, Ms Freeman and Ms Linford, together with Ms Evans, the Finance Officer for Mr McDowell. 

19. It is sufficient to say that none of them liked it.  It would not save nearly as much money.  It also involved another employee taking a substantial pay cut.  The latter might well have been thought to have had industrial implications, as some of the evidence suggests. 

20. Eventually, Ms Begley was permitted to take her proposal to the executive at the end of June 2011. 

21. There is certain poignancy to this process.  Ms Begley says she did not want to go and I suspect that that is right.  It would have been an intimidating proposition for her. 

22. It is quite clear that whatever the reason was for sending the matter to executive (and I suspect this may have in part have flowed from the recommendations of Fair Work Australia), the fact is that it was a forlorn hope.  Not only was it not very attractive in financial terms (this being the driver in any event during a very difficult financial period), but Mr McDowell did not approve of it.  He and Dr Murphy had stitched all this up months before. 

23. The only reason the matter had taken some time was because in the meantime Mr Broadford had poured cold water on the hiring of a records manager and suggested that it not proceed until finances had improved. 

24. Looked at in hindsight, it is obvious that Ms Begley’s alternative proposal would never have succeeded. 

Ms Begley’s Redeployment

1. Ms Begley gave evidence that right from the start she felt that Austin Health was not interested in redeploying her.  It was her view that the relevant industrial instruments and policies required Austin Health to make positions available, so to speak, for her. 

2. This was not Austin Health’s point of view.  Indeed, Austin Health had very different views about the way in which redeployment should occur to Ms Begley. 

3. So much became apparent when Ms Begley met with Ms Jeffs.  Ms Jeffs’ file note of the meeting on 9 June 2011 makes this clear (exhibit R20). 

4. The parties agreed to disagree about what was meant by consultation and Ms Jeffs sought to allay Ms Begley’s fears that the redeployment process would not be a genuine one for her.  It should be noted in passing that the Redeployment and Redundancy Policy that applied at the time of Ms Begley’s notification on 7 June 2011 (exhibit A23) says, relevantly, that:

   “Consultation in respect to a change will occur with relevant unions, with a view to identifying any actions which can be taken to minimise the negative effects of the change on employees whilst still achieving the end results required by Austin Health.  Redeployment opportunities will be explored as an alternative to redundancy arising from decisions to implement change.”

1. The policy goes on to say:

   “Austin Health will, in the event that an employee wishes to remain employed by Austin Health, investigate all reasonable opportunities for redeployment.”

2. Given the march of events as it had affected her, Ms Begley’s complaints about the alleged consultation, which only commenced at a point when the decision to dismiss her was made and was, to quote Ms Freeman, “irrevocable”, and her complaints about not being approached for redeployment, seem to have some force. 

3. The difficulty, however, is that the actions of Ms Linford and Ms Jeffs are not consistent with Ms Begley’s view. 

4. Ms Jeffs’ evidence was that the Food Services Department had a position and the position was advertised.  Her evidence was that

   
   

   Ms Begley was made aware of it and failed to apply.  This evidence was given with conviction. 

5. The reality is that Ms Begley knew or should have known from an early stage that Ms Jeffs and Ms Linford were of the view that it was up to Ms Begley to make application for internal positions.  In hindsight, it would clearly have been better had she done so. 

6. Ms Linford wrote to Ms Begley as early as 29 July 2011 (part of exhibit R18) setting out the approach that Austin Health expected in relation to applications for positions.  On 3 August 2011, Ms Begley replied taking issue with it but by 4 August 2011, Ms Linford had replied confirming Austin Health’s view (the remainder of exhibit R18). 

7. Nonetheless, for all Ms Begley’s concern the tenor of Ms Linford’s reply is not by any means wholly hostile.  It ends “How are you finding Right Management’s assistance?  Has it been helpful to date?” 

8. Ms Linford also wrote to Ms Begley on 20 July 2011 (exhibit R17).  This stated, amongst other things:

   “I hope that you have been receiving the employment circulars via email.  If you see anything on the circular that you believe you meet the essential selection criteria for, please contact Kirsty/Rebecca and they will advise you in regards to the process of applying for roles.  Their number is (number omitted). 

   I’m aware you indicated an interest in the vacant FSD position.  This will shortly be advertised, please look out for it on the next circular.  If you wish to apply for it, please alert Kirsty/Rebecca to this and send your application to the manager as detailed on the advertisement.

   If you have any queries, or are unsure of your/Austin’s roles and responsibilities during redeployment please let me know.”

9. It was that email that gave rise to the exchange of later emails in early August 2011 (exhibit R18). 

10. As I have already indicated, it does seem most unfortunate that Ms Begley did not apply for the position she had already isolated as being perhaps the most suitable for her.  This arose, as I see it, from her rather dogmatic approach to the interpretation of industrial instruments.  She also clearly thought that Austin Health was out to get her in any event. 

11. I should make it clear that while I have reservations about some aspects of Ms Linford’s and Ms Freeman’s evidence, there is nothing in the materials that convinces me that Austin Health was not prepared to give Ms Begley a fair chance at redeployment if she had sought to take it up in the manner they indicated she should.  In a sense, I think both parties were being unreasonable.  On the one hand, it is clear from the Redeployment Policy that Austin Health had an obligation to try to find positions that might have assisted Ms Begley.  On the other hand, and during a very busy and financially-stressed time during which a number of other employees had been made redundant and might have been thought likely to want to obtain redeployment, it was not unreasonable for Austin Health to require Ms Begley to stir herself sufficiently to make an application. 

The Applicant’s Case

1. While pleadings have taken place and the applicant has filed an amended statement of claim, her claim was summed up succinctly by counsel in his closing address.  Essentially, what Ms Begley says is that because she raised classification issues she was dismissed pursuant to a sham redundancy. 

2. Counsel conceded that in order to have the benefit of what both parties described as the reverse onus, there were two matters he had to establish.  The first is simple. 

3. It is conceded that Ms Begley was employed by Austin Health. The other threshold question to be addressed is whether or not Ms Begley had and/or sought to exercise a workplace right, as defined in s.340 of the Fair Work Act 2009 (“the Act”). 

4. Putting the matter shortly, I accept that Ms Begley had and sought to exercise a workplace right. Relevantly for these purposes, s.341 of the Act, which defines workplace right, is as follows:

   “(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.

5. Workplace instrument is defined in s.12 of the Act:

   (a)     is made under, or recognised by a workplace law; and

   (b)concerns the relationships between employers and employees. 

6. Here, although I do not think that the relevant instrument has been tendered, it is common cause that the relevant enterprise agreement required all employees to be classified.  There seems to me no dispute that the enterprise agreement is a workplace instrument. 

7. Contrary to the submissions of counsel for Austin Health, I find that Ms Begley did raise the question of the correctness or otherwise of her classification and was seeking to be re-classified, albeit that this was about getting more money as classification always is (per Mr Gogel). 

8. Once again, contrary to the submissions of the respondent, the applicant made it quite clear why she thought her classification as HS4 was wrong.  It was wrong because other employees doing the same work were classified as HS5 and other employees classified at HS4 were doing substantially less than she was. 

9. Furthermore, it is clear that Ms Begley was entitled to make a complaint about her employment. She was able to complain that she was wrongly classified and this is plainly a matter in relation to her employment (s.341(1)(c)(ii) of the Act). The distinction sought to be drawn by the respondent to the effect that Ms Begley’s complaints were purely about her contract of employment is, in my view, overly refined. The Explanatory Memorandum to the Act tendered by the respondent and marked MFI-2 makes it clear that it was the intention that s.341(1)(c)(ii) differentiated the prior section of the Workplace Relations Act 1996 in that it “is not a prerequisite for the protection to apply that the employee has ‘recourse to a competent administrative authority.  It would include situations where an employee makes an inquiry or complaint to his employer’.” 

10. The illustrative examples in the Explanatory Memorandum, while not directly on point, also appear to suggest that the scope of s.341(1)(c)(ii) is broad.

The Reverse Onus

1. The respondent conceded that if the applicant got over the issue of having sought to exercise a workplace right, the onus of proof was reversed pursuant to s.361 of the Act. Austin Health also conceded that pursuant to s.360, a person takes action for a particular reason if the reasons for the action include that reason.

2. As the High Court of Australia has recently made clear in The Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 (“Barclay”), the question is whether the prohibited reason was a substantial and operative factor so as to constitute the reason for adverse action (see Barclay at [127] – [128]).

3. The respondent’s written submissions correctly assert, in my view, at paragraph 12:

   “Austin Health must establish to the Court’s satisfaction, on the balance of probabilities, that the decision-maker did not take the adverse action for a reason in section 340.  If a proscribed reason in section 340 was a substantial and operative reason for taking the adverse action, then Austin will have contravened the section.”

4. At [44]-[45] in Barclay, French CJ and Crennan J said:

   “44. There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory express “because” in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry 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?”

   45.  This question is one of fact, which must be answered in the light of all the facts established in the proceeding.”

5. At [121], Gummow and Hayne JJ confirmed that the task for the Court is to make a finding upon the issue of fact. 

What did the Respondent do to Ms Begley and why?

1. I do not accept that the respondent created a sham redundancy in order to get rid of Ms Begley because she had pressed issues to do with her classification.  For the reasons given, I accept that Ms Begley did indeed raise classification but this did not give rise to the elaborate charade that Ms Begley asserts occurred. 

2. Mr McDowell’s evidence that he isolated Ms Begley’s position in early 2011 as one he could dispose of is entirely believable.  He clearly acted on that view in March/April 2011 in the context of a worsening financial situation for Austin Health.  It was plainly designed to save money and although its timing appears to have proceeded somewhat erratically given that the decision was made by April and not implemented until June, I draw nothing sinister from this. 

3. As I find, Mr McDowell would sack an employee to save a much smaller amount than $80,0000 a year recurrent, and despite my reservations about his style and some aspects of his evidence, this part I do accept. 

4. When looked at objectively, it is clear that Austin Health was going to employ a records manager.  The Steering Committee to sort out the nuts and bolts was kick-started by the Chief Executive Officer himself.  It was inevitable, in the circumstances, that there was likely to be some impact upon an employee like Ms Begley, part of whose duties would clearly be subsumed into those of the records manager. 

5. The redundancy per se, therefore, was not an adverse action because the decision to implement it was well and truly taken on any view before Ms Begley’s complaints about her classification became a matter of any moment to Mr McDowell, he being the person who effectively determined the matter. 

6. As I mentioned to the parties during the hearing, however, the case is not perhaps as simple as it has been presented.  Just because the redundancy was not a sham does not mean that adverse action may not have occurred.  It is possible that the decision to make Ms Begley redundant may have been influenced, on one view, by Mr McDowell’s irritation at Ms Begley’s pressing her re-classification issues. 

7. There are some aspects of Ms Begley’s treatment that have caused, and continue to cause, me concern.  The first is the assertion undoubtedly made by Mr McDowell to Ms Begley in May 2011 “don’t talk bad about me”.  This comment was made at the end of a meeting which clearly discussed re-classification and suggests that, for some reason, Mr McDowell had an apprehension that Ms Begley would make slurs about him in the workplace. 

8. Another aspect of the evidence that is troubling is the extraordinary and, in my view indecent, haste with which the respondent sought to march Ms Begley out the door on 7 June 2011 and the fact that Ms Begley was told, without any justification whatever, not to bully or harass staff. 

9. With an employee of almost 20 years’ service, one would have expected a far greater degree of consideration than Ms Begley received on 7 June 2011.  The decision was irrevocable according to Ms Freeman.  That was, of course, because Mr McDowell had made that clear to her. 

10. Notwithstanding residual doubts, I am satisfied, however, that Austin Health has established that it is more probable than otherwise that Ms Begley was not the subject of her retrenchment because of her raising the question of her classification.  There are a number of reasons for this. 

11. First, Mr McDowell is a tough nut.  I entirely accept Ms Begley’s evidence that you had better not get on the wrong side of him.  Nonetheless, this unflattering description does not conceal the fact that Mr McDowell is extremely robust.  He is obviously very able in his area of specialty.  I think that Mr McDowell’s responses to Ms Begley’s concerns were always prompt.  Meetings and/or action rapidly followed any matters drawn to Mr McDowell’s attention. 

12. Mr McDowell would not have needed to establish an elaborate fraud to get rid of Ms Begley in circumstances where he obviously had sound reasons to do so as he saw it. 

13. Mr McDowell had already responded to Ms Begley’s concerns about re-classification.  He told her that she would be reviewed.  He had not asked for four weeks to finalise the matter and was not, therefore, under pressure about that matter.  It is simply not probable that the retrenchment was substantially the result of Ms Begley’s classification issues.  Numerous other employees were making similar requests at the time.  He had had a good relationship historically with Ms Begley and there is simply no suggestion of animus to justify a special treatment or negative treatment of Ms Begley. 

14. Once again, while the way Ms Begley was treated on 6 and 7 June 2011 was entirely inappropriate, I am not persuaded that this gives rise to the thesis that that conduct, which of course included the communication of her forthcoming redundancy to her, was activated by Ms Begley’s re-classification requests.  I think that the employer’s representatives Ms Freeman and Ms Linford, both of whom had been at Austin Health for comparatively short periods of time, were more probably than otherwise somewhat nervous at the business of sacking a long-term employee whom I note had been a long-term union official as well. 

15. Endeavours to force Ms Begley to go straight home are not possible to explain.  It seems more probable than otherwise to me that Ms Freeman and Ms Linford were concerned that Ms Begley might in some way foment trouble (this would be so whichever version of the words ‘do not bully and harass’ or ‘obey the Code of Conduct’ is accepted).  It may perhaps also reflect a commonly held view in industrial circles that redundant employees should be ejected as soon as possible to avoid Work Cover claims and the like. 

16. The difficulty for Ms Begley is that while I make it clear that I think that the way she was treated was deplorable, neither Ms Freeman nor Ms Linford were the people who decided to make her redundant.  That was clearly Mr McDowell alone. 

17. It follows that Ms Freeman and Ms Linford did not take adverse action against Ms Begley. 

18. I note that it has at no stage been asserted that the treatment of Ms Begley on 6 and 7 June 2011 operated of itself to constitute conduct because Ms Begley had exercised a workplace right. 

Conclusion

1. Whilst I have the greatest sympathy for Ms Begley who, in my view, was treated extremely shabbily by an organisation to which she had given almost two decades of faithful service, this is not, as all the parties agree, an unfair dismissal case.  The question is whether the employer took adverse action against her as defined in the legislation. 

2. For the reasons given, I do not think that Austin Health took adverse action against Ms Begley.  She was not the subject of a sham redundancy arising out of her having raised her classification level.  Her classification level issues played no part in the decision to make her redundant whatever. 

3. It follows that the application must be dismissed.  I do not need to consider the question of remedies (although if I had found in Ms Begley’s favour she might well have been reinstated) nor do I need to deal with any issues surrounding the applicant’s claim for the imposition of a civil penalty.  The application will simply be dismissed. 

I certify that the preceding three hundred and ninety-five (395) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date:  7 March 2013

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