Bognar v Merck Sharp & Dohme (Australia) Pty Ltd

[2008] FMCA 571

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BOGNAR v MERCK SHARP & DOHME (AUSTRALIA) PTY LTD [2008] FMCA 571

INDUSTRIAL LAW – Unlawful termination – temporary absence due to illness or injury – reasons for termination – reasons of decision maker – notice of termination – reasonable notice – whether term implied – application of company policies.

Workplace Relations Act 1996 (Cth) ss.659, 659(2)(a), 664, 665, 666

Jones v Dunkel (1959) 101 CLR 298
General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235
Galvin v Renito Pty Ltd [1999] FCA 1005
Sallehpour v Frontier Software Pty Ltd [2005] FCA 247
Sperandio v Lynch [2006] FCA 1648
Windross v Transact Communications Pty Ltd [2002] FMCA 145
Australian National Hotels Pty Ltd v Jager [2000] TASSC 43
Elliott v Kodak Australasia Pty Ltd [2001] FCA 807
Byrne & Frew v Australian Airlines Limited (1995) 131 ALR 422
McDonald v Parnell Laboratories (Aust) [2007] FCA 1903
Heidt v Chrysler Australia (1976) 26 FLR 257
Emmerson v Housing Industry Association Ltd [1999] FCA 500
Riverwood International Australia Pty Ltd v McCormick (2000) 177 ALR 193
Burazin v Blacktown City Guardian Pty Ltd(1996) 142 ALR 144
Carpenter v Corona Manufacturing (2002) 122 IR 387
Olsen v Wellard Feeds Pty Ltd [2008] FMCA 320
Claveria v Pilkington Australia Ltd [2007] FCA 1692
Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 67 IR 162
Rankin v Marine Power International Pty Ltd [2001] VSC 150
Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120
Finance Sector Union of Australia and Labour Union Insurance Pty Ltd (unreported, AIRC, PR929353, 27 March 2003)
Walker & Sherman v Andrew [2002] NSWCA 214
Western v Union des Assurance de Paris (1999) 88 IR 259
New South Wales Cancer Council v Sarfaty [1992] 28 NSWLR 68
Merrill Lynch (Australia) Pty Ltd v Commissioner of Taxation (2001) 113 FCR 79
Laz v Downer Group Ltd [2000] 108 IR 244

Applicant: STEPHEN BOGNAR

Respondent: MERCK SHARP & DOHME (AUSTRALIA) PTY LTD

File Number: MLG 1485 of 2006

Judgment of: O’Sullivan FM

Hearing dates: 12 July, 13 July 2007 & 29 February 2008

Date of Last Submission: 20 March 2008

Delivered at: Melbourne

Delivered on: 16 May 2008

REPRESENTATION

Counsel for the Applicant: Mr T. Angelopoulos

Solicitors for the Applicant: Max Legal

Counsel for the Respondent: Mr R. Dalton

Solicitors for the Respondent: Freehills

ORDERS

1. The amended application filed 29 January 2007 be dismissed.

2. The respondent have 7 days to file and serve any submissions in relation to costs.

3. The applicant have a further 7 days to file and serve any submissions in reply.

NOTATION

(a)Unless otherwise requested in written submissions the issue of costs will be determined on the papers.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1485 of 2006

stephen bognar

Applicant

And

merck sharp & doHme (AUSTRALIA) pty ltd

Respondent

REASONS FOR JUDGMENT

1. Stephen Bognar (“the applicant”) has worked in the pharmaceutical industry since 1993. The applicant’s employment as a territory manager with Merck Sharp & Dohme (Australia) Pty Ltd (“the respondent”) came to an end on 28 July 2006 in circumstances which are in dispute.

2. In this application which was transferred from the Federal Court on
   21 November 2006, the applicant claims inter alia that his employment was terminated by the respondent for the reason of, or for reasons which included temporary absence from work because of illness or injury pursuant to s.659(2)(a) of the Workplace Relations Act 1996 (“the WR Act”).

3. The applicant sought various declarations and claimed inter alia damages for breach of his contract of employment. The applicant claimed that the termination of his employment was in breach of his contract of employment and in breach of an implied term of reasonable notice.

4. The applicant also claimed the respondent contravened the Australian Fair Pay and Conditions Standard by failing to pay him sick leave. Lastly, the applicant claimed the respondent had denied him annual increments (wage increases) and bonuses that were due to him.

5. The respondent denies that the applicant’s employment was terminated for a prohibited reason. The respondent maintains that in terminating the applicant’s employment it complied with his contract of employment, its policy on termination of employment and the award which it said governed the applicant’s employment.

6. The respondent also denies that there was a breach of the Australian Fair Pay and Conditions Standard, or that there was an implied term of reasonable notice in the applicant’s contract of employment.

7. Lastly, the respondent denies it breached the applicant’s contract of employment by not providing bonuses or a salary increase and contends that the applicant did not receive either due to inter alia his poor performance and this was not a breach of the applicant’s contact and the relevant policies.

8. Unfortunately for the applicant, as will be seen by the consideration of the issues set out below, it is the view of the Court that the respondent did not terminate the applicant’s employment for the reason, or for reasons which included the prohibited reason alleged by him. It is also the view of the Court that the other claims by the applicant are not made out. As a result, the amended application filed 29 January 2007 should be dismissed.

Issues

1. It was common ground[1] that the issues before the Court were:

   [1] See para 1 –Applicant’s submissions, filed 12 March 2008

   a)was the applicant terminated for the prohibited reason, temporary absence due to illness or injury contrary to s.659(2)(a) of the WR Act (“unlawful termination”);

   b)was the applicant entitled to more than 5 weeks notice of termination of employment (“notice of termination”);

   c)did the respondent breach the applicant’s entitlement to sick leave pursuant to either his contract of employment or the Australian Fair Pay and Conditions Standard (“sick leave”); and

   d)was the applicant entitled to bonuses and annual salary increases pursuant to his contact or policy (“policy”).

Hearing & Evidence

1. In accordance with directions made on 15 December 2006 and 9 March 2007 the parties filed contentions of fact and law and affidavit material upon which they sought to rely.

2. The hearing was held over 3 days on 12 & 13 July 2007 and concluded on 29 February 2008.

3. The parties had indicated the matter would only occupy 2 days. Notwithstanding the directions made in March 2007 almost
   90 documents were tendered through the applicant at the hearing on
   12 and 13 July 2007 and witness evidence did not conclude within
   2 days.

4. The matter was adjourned (part heard) on 13 July 2007 to
   12 November 2007. However, due to the illness of the applicant’s Counsel that date was vacated by consent. Several attempts were made to program further hearing dates but due to the prior commitments of the applicant’s Counsel, those of opposing Counsel and the Court’s docket, the hearing of evidence did not conclude until 29 February 2008.

5. At the hearing the applicant gave evidence and was cross examined. Mr Cameron Stops also gave evidence on behalf of the applicant and was cross examined. Mr Craig Doig, a Senior Professional Services Manager and Mr Chris Broadley who had been the respondent’s Regional Business Manager, both with managerial responsibility for the applicant gave evidence on behalf of the respondent and were cross examined.

6. At the conclusion of the hearing on 29 February 2008 directions were made for the filing of submissions in writing by both parties.

7. The applicant filed comprehensive submissions in writing on 12 March 2008. The respondent’s submissions in writing were filed on 20 March 2008. There were no submissions in reply filed by the applicant.

Background

1. In what follows a statement of fact constitutes a finding of fact unless the context suggests otherwise. I have not recited, nor do I intend to recite all of the evidence that was presented over the three days of hearing although all that evidence has been considered and taken into account. Lastly, the Court’s consideration of this matter has been assisted by the helpful written submissions filed by both parties.

2. On or about 12 July 1993 the applicant commenced employment with AMRAD Pharmaceuticals Pty Ltd in the position of Territory Manager.[2] On 23 November 2000 the applicant signed a letter of offer of employment dated 20 November 2000 with the respondent (“the Agreement”)[3]. The Agreement included provisions in relation to notice of termination and also provided for:

   [2] Para 2(a), Applicant’s submissions & (Ex A1)

   [3] Ibid & (Ex A2)

   “(i) commencement of employment on 1 January 2001;

   (ii) the recognition by the respondent of the applicant’s service with Amrad as continuous service;

   (iii) employment as Victorian Senior Territory Manager;

   (iv) sick leave of 10 days per year;

   (v) annual leave – 20 days per year;

   (vi) compliance with Company policy;

   …;

   (ix)salary review;

   (x) performance bonuses upon meeting the criteria;…”[4]

   [4] Para 2(e) of Applicant’s submissions

3. The respondent’s policies included policies on:

   “(i) sick leave (Ex A5); and

   (ii) termination of employment (Ex A6).

   (iii) performance review (Ex R4)[5]”

   [5] Para 2(f), Applicant’s submissions

1. The role of the applicant and Territory Managers employed by the respondent was described in the affidavit of Mr Craig Doig sworn

   
   3 May 2007

   as follows:

   “9.Mr Bognar was employed as a Senior Territory Manager…At all times Mr Bognar was employed by Merck his role was a sales representative. His sole responsibility was to represent Merck in the territory assigned to him.

   
   

   His role required him for most of the day to be on the road attending to scheduled and drop in appointments with doctors and other health care professionals in his territory…

   ….

   12.At the time Mr Bognar reported to me, his assigned territory was a geographical area covering Dandenong through to Yarram…

   13.Territory Managers at Merck have to meet with doctors and other health care professionals to introduce and sell Merck’s products to them.

   14. Sales representatives have to know the products they are selling. All our territory managers have been trained intensively on that.

   15. They also need sales skills. They have to be able to explain to health care professionals the benefits of our products with a view to those health care professionals prescribing those products to appropriate patients. We have always preferred to recruit people with prior sales experience.

   16.They also have to be well organised. They are not supervised day to day. They are on the road and meeting customers, so they have to be self motivated and good time managers.

   …

   26. It has always been important for our territory managers to plan each day, week and beyond. Territory managers have always been expected to aim to achieve a meaningful result out of each call they make to a health care professional.

   
   

   The best way to do that is to plan well.

   27. In early 2006, Merck rolled out a new tool to assist all territory managers gather the information they needed to gather about customers and potential customers, and to organise and plan their activities. The tool is called PDA Meridan. It is a small portable electronic device…enables the user to record appointments and to record other information relevant to their role…We saw this as a key part of capturing relevant information…and to better co-ordinate the overall activities.”

2. The dispute between these parties centres on events during the course of 2006 by which time Mr Doig had become the manager responsible for the applicant’s sales team.

3. Prior to this time however I accept that there were issues raised by the respondent (and the managers responsible for the applicant) concerning the performance and behaviour of the applicant. The evidence is:

   ·in March 2003 and again in December 2004 there were issues raised concerning the applicant’s performance;

   ·from February through to July 2005 there were issues raised by the respondent about concerns regarding the applicant’s ability to plan as required;

   ·in October 2005 the applicant was advised he needed to meet a set criteria of a specific number of Nurse Assessment Days (NADs) at medical clinics as part of a program called ‘Heartbete’ run by the respondent;

   ·during November and December 2005 there were issues raised by the respondent with the applicant about NADs at particular clinics he arranged, this led to an investigation by the respondent about records associated with that program and allegations that those records were fraudulent;

   ·towards the end of December 2005 the applicant commenced annual leave and returned to work in February 2006; and

   ·by this time the respondent had ‘rolled out’ PDAs for Territory Managers and Mr Doig was directly responsible for managing the applicant.

4. In final submissions, on the basis of the affidavit evidence and the evidence adduced at the hearing including by way of cross examination the respondent provided the chronology of events which is set out at Annexure A to these reasons.

5. For present purposes that chronology can be summarised as follows:

   ·when the applicant returned to work in February 2006 he was issued with a warning (by Mr Doig) as a result of concerns and issues that had been raised with him by the respondent in 2005 and placed on a performance plan and was told he was not eligible for a bonus;

   ·in March 2006 Mr Doig met with the applicant to discuss the performance plan and the review process;

   ·in April 2006 the applicant was given training and feed back to assist in meeting the performance requirements asked of him and took paid sick leave;

   ·in May 2006 the applicant received further training on PDAs and feed back following a field visit with Mr Doig. During May the applicant sent an email to Mr Doig that the PDAs were “plainly senseless and a waste of time;”

   ·on 5 May 2006 the applicant received a warning for failure to meet the requirements set for him. The respondent told him that ongoing failure to meet minimum requirements would result in termination and that his progress would be reviewed on 30 June 2006;

   ·in May there was also a separate investigation into allegations of harassment made against the applicant. During that investigation the applicant was stood down;

   ·during the course of May 2006 the applicant sought the assistance of a union whose officers (including Mr Stops) subsequently attended meetings with the applicant concerning the applicant’s performance and other issues raised by the respondent;

   ·on 13 June the applicant was issued with a final warning as a result of the investigation into allegations of harassment made against the applicant;

   ·at that time the respondent deferred the review of the applicant’s performance (as he had been absent) until 21 July 2006 and the applicant was subsequently advised of this;

   ·the applicant was on paid sick leave from 14 to 19 June 2006;

   ·in late June 2006 the applicant received further training but did not pass the assessment conducted after that training;

   ·in July 2006 the applicant claimed sick leave and a ‘stalemate’ arose between the applicant and Mr Doig over what could be required in a medical certificate before that leave would be paid. The applicant did not believe the respondent could require more information in a medical certificate or a certificate for all absences;

   ·when the applicant returned to work there were discussions about the applicant’s ongoing performance problems;

   ·

   on 21 July 2006 Mr Doig detailed allegations of poor performance to the applicant at a meeting which was adjourned to 24 July 2006 to give the applicant an opportunity to respond.

   
   

   It was clear at that meeting the respondent was considering terminating the applicant’s employment;

   ·on 24 July 2006 the applicant advised he would not attend the meeting scheduled for that day and made a complaint to senior officers of the respondent regarding the performance management process;

   ·also on 24 July 2006 the representatives for the applicant (Mr Stops) and respondent (Mr Cook) discussed when a response to allegations raised 21 July 2006 could be expected, but did not agree or settle on a date;

   ·finally, later that day Mr Doig spoke to the applicant by telephone;

   ·on 25 July 2006 Mr Doig advised the applicant of the requirement to provide a certificate and respond to the allegations. Later that day the applicant sent a medical certificate to the respondent (Exhibit A21);

   ·Mr Doig followed up with the applicant via email as a result of receiving this certificate which referred to the applicant being “unable to work” due to “medical condition” (see Exhibit A21).
   Mr Doig requested a more specific medical certificate or response with respect to the allegations raised by 27 July 2006. Mr Doig advised if the applicant did not provide a response to the allegations or a medical certificate indicating he was incapable of doing so by then he would need to consider making a decision in relation to the allegations raised with the applicant on 21 July 2006;

   ·separately to, but around the same time as this Mr Doig requested an explanation from the applicant on deficiencies contained in the data entered by the applicant; and

   ·on 26 July 2006 the applicant sent an expense report to Mr Doig using the respondent’s email system and also responded to the request from Mr Doig concerning deficiencies in data.

6. On Friday, 28 July 2006, the respondent terminated the applicant’s employment (Exhibit A3) with payment in lieu of notice and accrued entitlements. As at the date of termination, the applicant was 46 years old.

Credibility

1. Much of the evidence in this matter was taken up with contested assertions about the work performance of the applicant. In final submissions the applicant said:

   “14. The applicant sought not only to show that the respondent’s reason included the proscribed reason but that the reasons provided in the letter of termination viz performance
   (Ex CD 30) was at the time of termination a ruse to hide the real reason, the absence. Otherwise the respondent would have awaited the applicant’s return to provide a response to the allegations. It is for this reason the applicant sought to challenge the issues of performance throughout the hearing.” (emphasis added)

2. Leaving to one side (for the present time) the respondent’s denial of the assumption contained in the above submission, the case turns substantially upon the credibility of evidence given in relation to a series of events and meetings. In particular, the conflict is narrowed to the week of 24 July 2006 and discussions between the applicant and Mr Doig. Central to the resolution of that conflict is the credibility of the witnesses and the evidence of Mr Doig and the applicant.

3. It is necessary to set out my assessment of the witnesses for the applicant and the respondent. The views that I express were formed contemporaneously at the time of the hearing and confirmed upon reading the transcript and my notes taking during the hearing.

4. The applicant appeared to be an intelligent witness. Having had the opportunity to observe him give evidence and be cross-examined it is clear he regards himself as having been unfairly dealt with by the respondent.

5. Both the applicant and Mr Doig were cross examined in relation to a number of matters which impact on their credibility. Not surprisingly, in final submissions Counsel for both the applicant and the respondent sought to impeach the credibility of Mr Doig and the applicant respectively on particular issues to which I will return.

1. In his evidence and consistent with his affidavit material, Mr Doig impressed as someone who was genuinely trying to improve the applicant’s performance. He was cross examined extensively and was willing to make concessions including regarding his reliance on advice regarding the terms of the industrial instruments governing the applicant’s employment.

2. The applicant was cross examined in relation to a number of matters which impacted upon his credibility. One of these issues concerned the program called ‘Heartbete’ which the respondent required Territory Managers to administer in 2005 and for which they stood to receive a bonus.

3. Mr Doig gave evidence about this program and the concerns the respondent had about the applicant’s candour in the context of an investigation into allegations of false records associated with that program. The applicant in submissions sought that this evidence be disregarded or that the Court draw an inference in accordance with the decision of Jones v Dunkel (1959) 101 CLR 298 as 2 witnesses were not called by the respondent to contradict the applicant’s denials of any wrongdoing on his part.

4. Mr Broadley confirmed in his evidence that he had been involved in the investigation (along with the applicant’s previous manager

   
   

   Mr Smith) and had spoken with the doctor who provided some of the records, the subject of that investigation. The allegation was that NAD’s which had been recorded (as being organised by the applicant) had not occurred and there were concerns about the applicant being involved in the falsification of records.[6] Mr Broadley deposed:

   [6] Exhibits R1 and R10 concerning Heartbete program

   “12.Mr Smith briefed me on all this and we both suspected

   
   

   Mr Bognar had been knowingly involved in the falsification of records. The reason we suspended him was because it was he who stood to gain financially from the false records, not Dr Boon. Under the incentive program, Dr Boon did not stand to receive any payment or other benefit.

   13.I regarded this matter very seriously and decided to investigate it further.

   14.On Thursday 1 December 2005, I sat in on the first performance discussion with Mr Smith. In that meeting we questioned Mr Bognar about the satisfaction of records.

   
   

   Mr Jim Swatman (Senior Territory Manager) was also there as a support person to Mr Bognar. In this meeting, Mr Smith informed Mr Bognar of the alleged breach of policy.

   
   

   Mr Bognar refused to comment on the allegations and

   
   

   I informed Mr Bognar that he was suspended pending further investigation on our part and allowing Mr Bognar to put forward his response. At the close of the meeting

   
   

   I informed Mr Bognar that he would be required to attend a follow-up meeting on 5 December.

   15.The meeting on 5 December 2005 was attended by me,

   
   

   Mr Smith, Mr Bognar and Anna Micallef representing the National Union of Workers. Ms Micallef was in attendance as Mr Bognar’s support person. Mr Bognar produced a letter from Dr Boon that suggested that Mr Bognar had not been a party to the Nurse Assessment Days and had no knowledge that they had not in fact occurred. There were a number of discrepancies in Mr Bognar’s responses.

   
   

   Ms Micallef for Mr Bognar at one stage in the discussion admitted that fraud had been committed, however it was unproven whether this was on part of the doctor or

   
   

   Mr Bognar. In order to be fair to all parties we resolved to seek further information from Dr Boon and set a further meeting date for 15 December. During this time Mr Bognar remained on suspension with full pay.

   16.Mr Smith then wrote to Mr Bognar requesting his attendance at our office in Port Melbourne on 21 December 2005 to finalise our discussions. Mr Bognar called our office manager on 20 December 2006 (sic) indicating that he had a medical certificate for 20 & 21 December and that he would be recovering at a friend’s house and not contactable.

   17.Mr Bognar took annual leave from 22 December 2005 until 16 February 2006. When he returned from annual leave, he did not return to Mr Smith’s team, but instead started working in Mr Doig’s team...”

5. Regardless of the submissions of the applicant, the outcome of the investigation led to the respondent issuing the applicant with a warning such were its concerns about this and other matters in relation to his conduct, candour and performance. These concerns were reinforced by Mr Broadley’s evidence which was not shaken in cross examination.

6. Importantly, for present purposes the applicant revealed an unfortunate unwillingness to engage candidly with Counsel for the respondent’s questions on this issue. Illustrative of this was  the applicant’s evidence in cross examination during the following exchange:

   “Dr Boon, of course, didn’t stand to gain at all financially from doing that, did he? ---Doing what, sorry?

   Not following the process, not conducting nurse assessment days and not telling you that that’s what he was doing. He didn’t stand to gain financially from that, did he? ---He would have got CPD points, I believe.

   Mr Bognar, the only person who was likely to gain financially from this extraordinary arrangement was you because it meant that all of a sudden you had gone from a position in mid-November being two-thirds of your targets, 10 days later meeting your targets? --- This wasn’t the only other clinic that was doing Heartbete programs for me. I had others as well…”[7]

   [7] Line 33 – 43, page 153, 13 July 2007

7. More generally the applicant was unwilling to make concessions when confronted in cross-examination with either inconsistencies in his explanation of the course of events or suggestions that his attitude or behaviour was unreasonable.

8. Illustrative of the applicant’s attitude in this regard were the following exchanges. In his affidavit the applicant described himself as Territory Manager. In his evidence in chief he said:

   “I did the area of Mornington Peninsula up until the end of 2005 and that role was essentially visiting mostly GPs and pharmacists and going through our products and selling my products to those practitioners…It was primarily a selling role with some organisation of other programs.”[8]

   [8] page 51-52 - 12 July 2007

   “Territory manager is the term that’s basically used for all reps.”[9]

   [9] Line 24-31, p 52 - 12 July 2007

9. In cross examination the applicant was asked:

   “You accept, don’t you, that the primary responsibility of your role at all relevant times was to generate sales for Merck Sharpe & Dohme?_ _ _ That would be the big picture, the end part…”[10]

   [10] Line 44, p 91- p 93 - 12 July 2007

10. In cross examination the applicant was asked about his sales role:

    “The key performance criteria every year, both 2005 and 2006, and every other year before that had a focus on sales outcomes and then other objectives that were supportive, as far as MSD was concerned, of generating sales. Correct?---Not necessarily.

    You had a target, for example, expressed in a dollar figure for the sales of the particular drugs that you were responsible for?---No, not in 2006. I thought we’d gone to state figures.

    To which you were a contributor?---Yes

    The things that you were assessed against were initiatives, how you performed in a range of things that your employer saw as important in doing the groundwork to generate more sales?---Mm’hm…”[11]

    [11] Line 29-42, p 92 - 12 July 2007

11. In answer to questions in cross examination regarding the respondent’s concerns about his performance the applicants’ evidence was:

    “What I’m saying to you is that each of those managers at various times specifically raised with you concerns they had about your performance? _ _ _ There were some issues raised, yes?”[12]

    [12] Line 3, p 43 - 12 July 2007

12. The obdurate attitude displayed by the applicant in cross examination was consistent with the evidence given by witnesses for the respondent of the applicant’s attitude and behaviour when asked to address performance issues or compliance with the respondent’s requirement for compliance with its directions or policies.

13. Having closely observed the applicant giving evidence this is an unfortunate case where it appears he has convinced himself, only he was in the right. It appears the applicant is so aggrieved by events leading up to the termination of his employment that he has reconstructed them in his own mind in an effort to fit them into a scenario capable of falling on a prima facie level under the rubric of s. 659(2)(a) of the WR Act.

14. Overall the evidence of the applicant was far from convincing both generally and in relation to the events of the week of 24 July 2006. To the extent that the applicant’s evidence is inconsistent with the evidence of Mr Doig and Mr Broadley I prefer the evidence of the latter.

Unlawful termination

45.Section 663 of the WR Act provides for applications to the Federal Court or this Court for orders under s.665 in respect of alleged contraventions of s.659.

1. The case advanced by the applicant was that the respondent contravened s. 659(2)(a) of the WR Act which provides:

   “ (2) Except as provided by subsection (3) and (4), an employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:

   (a) temporary absence from work because of illness or injury within the meaning of the regulations;

   …”

2. By virtue of s.664 of the WR Act, the respondent bears the onus of proving that it did not terminate the applicant’s employment for a prohibited reason, or for reasons that included a prohibited reason. Section 664 reads as follows:

   “In any proceeding under s 663 relating to a termination of employment in contravention of section 659 for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section:

   (a) it is not necessary for the employee to prove that the termination was for a proscribed reason; but

   (b) it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 659(3) or (4) applies).” (original emphasised)

3. Section 664 is substantially identical to s.170CQ of the WR Act as it stood prior to the Workplace Relations Amendment (Work Choices) Act 2005 (“WorkChoices Act”) The authorities on s.170CQ and the predecessor provisions are therefore relevant: (see e.g., Laz v Downer Group Ltd at [255] per Moore J and Claveria v Pilkington Australia Ltd [2007] FCA 1692 at [8] per Kenny J).

4. In Sperandio v Lynch [2006] FCA 1648 at [91] it was said of the predecessor provision to that presently under consideration:

   “91.Turning to s.170CK(2) of the Act, the “reason” to which that provision refers is, I consider, the temporary absence from work. For an employer to act in breach of the provision, there must be an awareness that the absence was because of illness or injury, and the absence must be the reason for the termination. Or, to put it defensively, an employer will succeed in avoiding an adverse finding under the provision upon proving either that he or she did not know the reason for the absence or that he or she did not terminate the employment by reason of the absence. In the present case the respondents have not proved either: indeed, I find the contrary in each case.”

50.Section 665(1) of the WR Act provides for the orders that can be made, if the Court is satisfied that an employer has contravened s.659 of the WR Act.

1. The respondent’s contentions of fact and law addressed this aspect of the applicant’s claim squarely:

   “1. The employment of the Applicant was terminated after a long period of underperformance in his role as a Senior Territory Manager with the Respondent. His employment was terminated with payment in lieu of 5 weeks’ notice, after receiving two written warnings, several poor end of year performance reviews and after numerous attempts to improve his performance through counselling. The only reason for the termination of the Applicant’s employment was his under-performance, and his failure to address it.”

2. In final submissions the respondent’s position, which I accept correctly summarises the evidence and identifies the issue before the Court, was:

   “2.The following non-contentious facts establish the necessary elements of termination of employment and the proscribed attribute of temporary absence from work due to an illness:

   (a) the Applicant was an employee;

   (b) the Respondent was the Applicant’s employer;

   (c)on 28 July 2006, the Respondent terminated the Applicant’s employment;

   (d) both before and at the time of the termination, the Applicant was absent from work for certain periods in June and July 2006;

   (e) these absences from work were due to an illness (albeit undefined);

   (f) the Applicant provided medical certificates for those absences within 24 hours of the absence or within a time that was otherwise reasonable in the circumstances.

   3. What is in dispute in this case is the proscribed reason element.”

3. It was not in dispute that the respondent bore the onus under s.664 of the WR Act of disproving that the “temporary absence from work because of illness or injury” (the prohibited reason) was the reason or a part of the reason for the termination.

4. As the respondent’s submissions made clear the respondent never challenged the applicant’s absence from work during June or July 2006 were “temporary absence from work” within the meaning of s.659(2)(a) and the Regulations. As the respondent put it, it had “…maintained a defence by reference to its reasons for dismissal being solely based on performance grounds”.[13]

   [13] Paragraph 2 respondent’s submissions

5. Given the above, at paragraph 9 of its submissions the respondent said:

   “9.Accordingly, the task for the Court is as follows:

   a.start from the presumption that the Respondent dismissed the Applicant wholly or partly for the alleged prohibited reason – temporary absence from work;

   b.consider the evidence from the Respondent;

   i.      has the Respondent’s evidence in chief met the reverse onus? (That is, if the Respondent’s evidence is accepted as true, does it exclude the alleged reason as forming any operative part of the totality of reasoning?);

   ii.     if no, the Applicant succeeds because the Respondent has not addressed the reverse onus;

   iii.     if yes, should the Court accept that evidence as true, having regard to all the evidence and, in particular, the Applicant’s challenges to Mr Doig’s evidence?”

6. In relation to the issue of the reverse onus the applicant in submissions referred to and relied on the decision in Emmerson v Housing Industry Association Ltd [1999] FCA 500 at paras [45] to [55]. The applicant’s submissions at paragraph 23 placed particular emphasis on paragraph [55] of this decision:

   “55.The applicant was temporarily absent because of illness. The respondent knew he was absent and that the absence had been certified as temporary and due to illness and due to stress reaction. The respondent concedes that the applicant was on authorised sick leave. The respondent essentially terminated the employment because the applicant failed to comply with a direction to return the motor car. The respondent directed the return of the car because the applicant was absent from work. The absence was temporary and due to illness and the respondent had been informed accordingly. The conclusion seems inevitable that even if the varied conditions of use were incorporated into the contract of employment and "clearly and unequivocally" provided for the respondent to demand the return of the vehicle while the applicant was temporarily absent because of illness, neither of which assumptions are accepted, the respondent in terminating the applicant's employment included in the reasons for termination the temporary absence of the applicant due to illness.” [underlining added in original]

7. Those submissions omitted that at paragraph [56] of the decision the Court concluded that it did not need to decide the issue as it was not in any event satisfied the temporary absence in that case was not a reason for the termination.

8. In General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235 (“Bowling”) the High Court was concerned with the application of a analogous statutory provision to that presently under consideration which prohibited an employer from terminating the employment of an employee “by reason of the circumstance that” the employee was, among other things, a union delegate.[14]

   [14] (s.5(1) Conciliation and Arbitration Act 1904 (Cth))

9. The relevant provision placed the onus upon the employer of proving that the dismissal was not actuated by a prohibited reason if the employee was able to prove the other elements of the offence.

   
   

   In Bowling, the other elements having been proven, the question was whether the employer had discharged this onus.

10. In considering whether the onus had been discharged the Court had regard to evidence given and the absence of evidence from the two directors of the employer who were involved in the decision to terminate. Mason J’s reasons for decision contain the following passages at [241] and [242]:

    “The suggestion that the respondent’s position as a shop steward was not associated with the reason for dismissal in the minds of Mr. Rosenboom and Mr. Gould is based partly on the assumption that one need not look beyond the consideration which they gave to the matter of dismissal. Yet it is clear enough from the evidence that the effective decision to dismiss the respondent was not made by them in South Australia but by the two directors in Melbourne after they had consultation with Mr. Gould, not Mr. Rosenboom.

    …

    In the light of this evidence it is impossible to treat the directors in Melbourne as having no more than a power to veto a decision arrived at in South Australia. The unexplained failure of the appellant to call the two Melbourne directors then became significant. It left uncontroverted the possibility that the respondent’s position as a shop steward was an influential, perhaps even a decisive, consideration in their minds.”

11. Gibbs J agreed with Mason J’s reasons for judgment. He added a number of observations, one of which is pertinent in this case at [239]:

    “If in the present case evidence had been given by the directors responsible that the employee was dismissed because he was guilty of misconduct or because his work was unsatisfactory, and that in dismissing him they were not influenced by the fact that he was a shop steward or indeed that he was dismissed in spite of that fact, and that evidence had been accepted, the onus would have been discharged.”

12. In Sallehpour v Frontier Software Pty Ltd[2005] FCA 247 at [38], Marshall J said of proceedings of this nature:

    “38. The proceeding before the Court does not call upon the Court to determine whether Mr Sallehpour was unfairly dismissed. The question for the Court is whether the dismissal occurred for reasons which included a prohibited reason under s 170CK. It may be that an employer will attempt to disguise a prohibited reason by dressing up a termination as having been taken for some reason which was not a real reason or a justifiable reason for the termination. To the extent that it is necessary to consider, it is my view that Frontier was entitled to terminate Mr Sallehpour’s employment for his failure to co-operate with Ms Howard’s reasonable requests to discuss a mutually satisfactory basis for a return to work by him in some capacity. He was not entitled to dictate to her when he would or would not return to work.”

13. Generally and in the context of s.659(2)(a) the reasons for termination of employment are the reasons of the decision maker. In claims of this nature the evidence of the decision maker will often be pivotal. In this case the decision maker was easily identifiable as Mr Doig.

1. In final submissions the respondent noted that the evidence of Mr Doig was that he:

   “10. …made the decision to dismiss the Applicant. His evidence was as follows:

   “3.On 28 July 2006, I took the decision to terminate Mr Bognar’s employment. As I explain in more detail below, I decided to take this step because of his poor performance. That was the only reason I dismissed him. When Mr Bognar first transferred to my area,
   I was aware that his previous manager had already identified, and put to Mr Bognar, substantial concerns about unsatisfactory performance. I immediately put Mr Bognar on a formal performance management process. I set targets for him and gave him regular reviews so I could closely monitor his performance.
   In my view, Mr Bognar failed to address the performance issues. By the time I dismissed Mr Bognar, I had lost confidence in his ability and/or preparedness to perform at a satisfactory standard.
   I deny completely the allegation that any of Mr Bognar’s absences from work in any way motivated me to dismiss him.”

   11.Later in his affidavit Mr Doig states:

   ‘86.On 28 July 2006, I decided to terminate Mr Bognar’s employment, with payment in lieu of notice.

   87.I did so after considering:

   ·    the poor work performance which led to Mr Bognar being issued with written warnings on
   21 February 2006 and 5 May 2006;

   ·    the opportunities with which Mr Bognar had been provided to improve his work performance since
   21 February 2006; and

   ·    Mr Bognar’s poor attitude at work and his unwillingness to change to improve his performance as I required him to.

   88.At about 9am 28 July 2006, I telephoned Mr Bognar and told him that I had decided to dismiss him and that was sending him a termination letter and that he would be paid out his entitlements.

   89.On 28 July 2006 I sent him the termination letter by courier to his home.  

   Attached to this affidavit and marked “CD-30” is a copy of the termination letter.

   90.I understand that Mr Bognar alleges in these proceedings that I decided to terminate his employment based on his absence from work due to illness or injury. I deny that allegation. As I stated above at paragraph 3 of this affidavit, I decided to terminate Mr Bognar’s employment because of his unacceptable work performance and the fact that I had lost confidence in his ability and/or willingness to improve to the required standard. The fact that Mr Bognar was absent from work at the time of the dismissal and for a period beforehand had no influence on my decision to dismiss Mr Bognar.’

   12.The Respondent has explained the totality of reasoning for the decision to dismiss the Applicant and has denied that the alleged proscribed reason formed any part of the totality of that reasoning. On its face, that is an effective denial which addresses the reverse onus. If that evidence is accepted as true, the Applicant’s case fails.”

2. The respondent’s submissions then went on to outline why Mr Doig’s evidence should be accepted.[15] It was noted that:

   a)he detailed what led him to reach that view about the applicant’s performance and decide to dismiss the applicant;

   b)his evidence was entirely consistent with contemporaneous documentation recording concerns of management about the applicant’s performance;

   c)his evidence was consistent with the reasoning he provided to the applicant at the time in the termination letter;

   d)whilst the applicant has disputed Mr Doig’s adverse assessment of his performance:

   “…nowhere in the Applicant’s affidavit, his Contentions of Fact and Law, his sworn evidence or his final written submissions has he gone so far as to say that Mr Doig did not really believe that the Applicant’s performance was unacceptable”; and[16]

   e)the evidence does not support Mr Doig’s stated reason not being the real reason.

   [15] Respondent’s submissions para 13-18

   [16] Respondent’s submissions para 18

3. In Galvin v Renito Pty Ltd [1999] FCA 1005 at [33] to [36] Ryan JR said:

   “33. Performance as a reason for termination

   Both parties spent a great deal of time at trial in assessing documentation including activity reports, sale incentive programs, group sales figures and visitor's reports.

   
   

   Given my assessment of evidence and my findings on evidence the documents are of far less significance than attached to them by the parties. Nevertheless, the documents were of some importance in terms of assessing whether performance was a reason for termination.

   34. Performance as a reason for termination is in itself only important in that a termination allegedly based on performance, be that a legitimate or unjustified basis, has that reason as a reason for termination. If that is a valid or invalid reason for termination, it is at least a reason.

   
   

   In some circumstances, a termination which includes a reason of performance may assist an employer establish a defence that, whatever the reason or reasons for termination, the reasons did not include a proscribed reason. At the end of the day that is as far as such evidence can extend.

   35.If the employer has terminated the employment, and I have found that to be so, and if an application is made under s170CK and the allegation of termination for a proscribed reason is maintained, the employer must prove that a proscribed reason was not a reason of termination and no amount of evidence, weak or strong, of termination on grounds of performance, will of itself avoid the onus or the test of proving that termination was not for a proscribed reason. Strong evidence of a performance-based termination may assist the employer but the employer must meet the test. Weak evidence of a performance-based termination might assist the applicant in that it might make it less likely that the employer will discharge the onus. Either way and separate from evidence of performance, the respondent still must prove the termination did not include a proscribed reason.

   36. In this case there is substantial evidence that a reason for termination, firmly entertained and expressed by the respondent as the reason for termination of the employment, was inadequate performance following warning, counselling and assistance. It is not part of this Court's function to rule on whether the employment was validly terminated on the grounds of performance. It is not part of the Court's function to consider whether the termination was in any way harsh, unjust or unreasonable.”

4. Based upon my observations of the applicant and my findings as to what occurred during the week in question, I am satisfied that Mr Doig’s objective was to manage the applicant’s performance and compliance with the respondent’s policies.

5. In relation to Mr Doig’s stated reasons for the termination of the applicant’s employment I adopt the comments of Marshall J in Sallehpour v Frontier Software Pty Ltd [2005] FCA 247 at 40.

   “To paraphrase, and adopt for current purposes the observations of Mansfield J in Griffiths v Freedom Furniture Pty Ltd [2002] FCA 595 at [53] they are more is accord with an employer being genuinely concerned about the employee’s performance and genuinely trying to improve that performance.”

6. Indicative in my view of the applicant’s attitude and corroborative of the genuineness of the respondent’s complaints regarding this and his performance were the applicant’s answers in cross-examination that the respondent’s concerns about his failure to plan were “motherhood statements”[17] and there were “claims” he was not planning properly.[18]

   [17] p-96 at 28, 12 July 2007

   [18] Ibid at p-99 at 1, 12 July 2007

7. These sorts of answers are also consistent with the attitude manifested by comments Mr Doig gave evidence the applicant was alleged to have made that:

   “…in old AMRAD days management allowed him to be left alone to manage his territory as his title suggested and that management at MSD wanted to control TM’s more.”[19]

   [19] CD3

8. Nonetheless taking the evidence as a whole, it was clear the applicant accepted that the respondent’s concerns about his failure to plan properly had been repeatedly raised with him. It was also pellucidly clear (and the applicant maintained this position in his evidence) he did not consider those concerns were valid. In this case Mr Doig gave evidence, which I accept, was consistent with an employer “being genuinely concerned about the applicant’s performance and trying to assist the applicant to improve that performance.”[20]

   [20] Sallehpour v Frontier Software Pty Ltd [2005] FCA 247 at paragraph 40

9. As the chronology set out earlier makes clear the applicant’s performance had been a source of considerable concern for all parties involved. Mr Doig had gone to considerable effort to provide information and training to the applicant to ensure he was able to understand and meet the performance targets set for him and address the areas where concerns had been raised with him.[21]

   [21] See Annexure CD12,17,24 to Ex R3, Affidavit of Mr Doig

10. These concerns and attempts to address them culminated in a series of meetings and exchanges in the months of May, June and July 2006 involving the applicant (as well as at times representatives on his behalf) and Mr Doig (and as well at times with the assistance of the respondent’s legal advisors). Separate to the meetings and exchanges concerning the applicant’s performance there were also investigations into other incidents involving the applicant over the same period for which he was also issued with warnings.

11. The evidence makes clear that the respondent had concerns about the applicant’s performance and whether he had been candid in his dealings with them for some time.

12. Considerable attention was paid to the issue of conversations and emails between the applicant and Mr Doig in week of 24 July 2006. As set out earlier the applicant’s position was:

    “…the reasons provided in the letter of termination viz performance (Ex CD 30) was at the time of termination a ruse to hide the real reason, the absence.”

13. The applicant’s position was that this was the case, as the respondent would otherwise have awaited the applicant’s return to work to provide a response to the allegations. However, in my view this ignores several issues.

14. Firstly, the events of that week cannot be looked at in isolation. On the preceding Friday the applicant had been the subject of a performance management review. Mr Doig deposed that:

    “73. By 21 July 2006 I was considering dismissing Mr Bognar.

    
    

    I decided to use the rescheduled review meeting to put to Mr Bognar written allegations of ongoing unacceptable performance and to allow him an opportunity to respond.

    
    

    I would then decide whether I should dismiss Mr Bognar, subject to anything he might put forward at that time.”

15. Allegations put to the applicant at that meeting concerned inter alia:

    ·his failure to plan;

    ·refusal, reluctance, inability to use the PDA;

    ·failure to follow directions;

    ·comments allegedly made by him to other employees including:

    ·“its not my problem how people interpret my conversations”;

    ·“some managers are more anal than others about enforcing policies”;

    ·“maybe I wouldn’t fall asleep if you put on a presentation that I hadn’t seen before and didn’t cause me to fall asleep”.[22]

    [22] Exhibit A72

16. The evidence is that after the duration of approximately 2 hours, the applicant requested time to respond and was given until 2.00pm on

    
    24 July 2006

    .

17. Secondly, in the time that Mr Doig had been responsible for managing the applicant’s performance he had issued warnings in February 2006 and May 2006, the last of which made clear that the failure to meet minimum requirements ‘will result in your termination’.[23] The respondent’s concerns that led to the meeting were the applicant’s “refusal to follow simple directions…along with consistent performance well below minimum expectations”.

    [23] See para 47-51 and 58-61 of Ex R3 Affidavit of Mr Doig

18. The applicant advised the respondent on 24 July 2006 that he would not be attending the rescheduled meeting. The evidence also makes clear that whilst the applicant was absent from work, he was able to make a complaint (and send correspondence) to the respondent’s senior officers (and Mr Doig) about “ongoing allegations of poor performance” against him.

19. I am satisfied that Mr Doig was made aware the applicant would be absent on 24 July 2006 and spoke to him by telephone to ensure he received a medical certificate. Having regard to the above matters

    
     

    I accept Mr Doig’s evidence that the applicant was asked when he would provide a response to the allegations raised at the meeting on

    
    21 July 2006

    . I find that the applicant said he would not respond for a few days. (emphasis added)

20. I am satisfied that Mr Doig contacted the applicant in the morning of 25 July 2006 and consistent with his previous communications with the applicant, sought to confirm the conversation on 24 July 2006 and the requirement to submit a medical certificate. I accept that Mr Doig stated (in relation to the allegations) “I trust you will respond to the allegations in a timely manner.”

21. Having received a medical certificate from the applicant which referred to the applicant having a “medical condition” saying he was unable to “attend for work” I am satisfied that later that day Mr Doig sent an email, again confirming his previous communication that the medical certificate lacked the necessary detail he required. He requested that he be provided with a certificate that indicated how the medical condition referred to impacted on the applicant’s ability to work or respond to the allegations either in person “in person” or “in writing”.

22. I am also satisfied that having regard to what had transpired in the past, it is more likely than not that Mr Doig requested the applicant either respond (either “in person” or “in writing”) to the allegations raised on 21 July 2006 or provide a medical certificate which confirmed he could not do so by 27 July 2006. I am satisfied Mr Doig advised the applicant that should the applicant not do either by then, he would consider making a decision as to the appropriate course of action regarding the allegations of poor performance without the applicant’s further input.

23. I accept that the applicant sent an email to Mr Doig the next day and had also lodged an expense report on the respondent’s email system which needed Mr Doig’s approval and this required him to access his work email account.

24. In final submissions the respondent also noted in relation to the events of the week in question that:

    “39. The Applicant’s attempt to explain how it was that he came to lodge expense claims shortly before noon on 26 July 2006 was also entirely unsatisfactory and irreconcilable with the evidence from Mr Doig and Mr Broadley that one cannot lodge expense report claims unless one is logged onto Merck email. His evasion of the questioning about how he must have seen the Mr Doig’s email was unconvincing: (transcript P163-168).

    40.The Applicant’s handwritten note bears all the hallmarks of a self serving note written by the Applicant to construct a version of events favourable to his case, as opposed to any attempt to make an accurate contemporaneous record.

    
    

    It bears no date, does not represent anything like what Mr Stops’ own version of the conversation was, and it notes the person as Gary Maas, not Cameron Stops. The Applicant’s attempt to explain away this discrepancy was entirely unconvincing.”

25. In submissions the applicant asked the Court to accept there was an agreement that the response from the applicant requested by Mr Doig would be provided when the applicant returned to work on 31 July 2006. The applicant also took issue with the respondent’s communication and requirement that he respond to the requests made of him whilst he was on sick leave. However, during the same week the applicant was able to respond (as he had been in the past) to an email from Mr Doig about concerns on data the applicant had entered with an email that included by way of a response to Mr Doig:

    “For your minimum expectations to be met I must have my minimum expectations met.”[24]

    [24] CD28

26. In relation to the communication via email between the applicant and the respondent during the course of the week I find it is more likely than not that the applicant accessed, viewed and responded to emails when he deemed it most favourable to the particular issue he was pursuing. I am satisfied to the requisite degree on what is before me that Mr Doig would not have acted in the precipitous manner that the applicant seeks to impute.

27. I am reinforced in the finding that it is more likely than not the emails came to the attention of the applicant given the definitive nature of Mr Doig’s evidence and the prevarication of the applicant on the same issue. Mr Doig gave evidence as follows:

    “That’s the email you’re saying that you reiterated what was discussed the previous evening? ---That was the follow-up email the following morning from our Monday night ---

    What email address did you send that to? I note that it says Bognar, Stephen? ---I sent evening to his Merck email address and asked for his written requests. (sic)

    …

    Why did you send it in that way to his Merck email account? What made you think that he would receive it and see it before the deadline? ---Because if he was off he would often respond to email. Over that period of that week when he was off he did send a couple of emails, one an expense report, an email ---

    …

    Mr Bognar says that in fact you can do this without using the Merck email. What do you say about that? --- You can’t.

    
    

    You definitely can’t.

    Can you explain to His Honour why that’s not possible?--- If you fill out an expense report, that expense report, even if you complete your expense report that stays on your computer system, and it stays in your out box until you post in. When you post in, even if your on line to the Merck network it still would not send unless you actually click on your email and connect to your email. So you can consent to the Merck network and you can connect to email. You have to connect to email. For that message to have got to me, that had to have been connected to email.”[25]

    [25] Line 25, page 219 to Line 42, page 220 - 13 July 2007

28. In contrast the applicant’s evidence in cross examination was:

    “On the 25^th you were sent an email at 8.07 am from Mr Doig reinforcing the directives given to you in the telephone conversation that you had with him the previous evening; that is, that you’re required to submit a medical certificate within two days of taking your first day of sick leave and the medical certificate should contain general information from the GP regarding your ability or otherwise to respond to the allegations put to you in the document you received on Friday 21 July.

    
    

    Do you see that at CD27?---Yes, I see that.

    You received that on the 25^th?---Yes.

    Can I take you to the next page, which is-still part of CD27 which is the email dated 25 July 2006 at 5.18 pm from Mr Doig to you and copied in to various people at MSD. You received that on the 25^th?---That I cant tell you because I don’t actually remember reading that document, certainly not on the 25^th.

    …

    Mr Bognar, are you telling this court that you didn’t see this important email that set the deadline, extend the deadline, for a response or provision of a reissued medical certificate by 5 pm on Thursday 27 July 2006? Is that what you’re asking the court to accept?---My Merck email is not connected all the time. I don’t have it on. It’s not something you have connected. No, I don’t see those emails. I have to purposely log on, go through a large – go though all the processes and long on and wait, sometimes hours, to come down so---

    …

    Mr Bognar, you accessed your Merck email around noon – the forenoon on 26 July. You saw an email that Mr Doig had sent you to that email at 6.19 pm on Tuesday 25 July and you replied to it at 1 minute past 12? ---Which email server was my email sent from?

    Mr Bognar, I’m putting to you that you were able to see emails that had been sent to you to your Merck email on 26 July.

    
    

    You opened your Merck emails on 26 July. You saw 25 July emails that Mr Doig sent you?---But this reply ---

    Yes? ----is- does it say there that it’s from my Merck email?

    Yes, well, it got Bognar, Stephen? ---Yes. What’s the email address of that?

    …

    See where it says, “from Bognar, Stephen” and then its got those arrow brackets which is your Merck address? --- That’s my Merck address, stephen_bognar@merck.

    Yes?---That my Merck ---

    Which is titled, “Bognar, Stephen”? --- Well, that’s how the address book has put it.”[26]

    [26] Line 30, page 163 to line 26, page 171 - 13 July 2007

1. Whilst the post it note referred to above[27] (in paragraph 40 of the respondent’s submissions) was tendered by the applicant, it was of little evidential value for reasons including: that it was not referred to in the applicant’s affidavit; it was not dated; and that the events it purported to record were not corroborated by direct evidence.

   [27] Exhibit A87

2. The applicant had called evidence from Mr Stops who had accompanied him to the meeting on 21 July 2006 and been in contact with Mr Doig and the respondent’s legal advisers. Mr Stops’ evidence was that he did not know what the applicant’s return date would be and he did not corroborate the applicant’s position that there was an agreement that Mr Doig would wait for a response until the applicant returned to work.

3. Furthermore, leaving to one side that there was no evidence the applicant would have returned to work on 31 July 2006, there is no direct evidence Mr Doig agreed to a response from the applicant on or after 31 July 2006. Mr Doig rejected that suggestion when it was put to him in cross examination and went further. Mr Doig was asked in cross examination:

   “I put it to you, Mr Doig, that Mr Bognar did say that he would provide his response to the allegations when he would return to work? --- Well, he didn’t.

   Your affidavits says that he sought no extension of time?—

   
   

   He didn’t. All he said to me was, “I won’t be able to do it in a few days.

   …

   So because he was on sick leave, you thought it was appropriate to give him more time to respond to the allegations? --- I thought it was appropriate to given him a few days like he requested, yes.

   …

   You had a certificate, so you knew you had a certificate which said that he would be unavailable for a week? ---- For the Monday to the Sunday I think it was, yes.

   You knew at that point in time that he would not be returning to work until the following Monday? --- That’s what the certificate says, yes…

   Don’t you think that’s at odds with an agreement would be given within a few days or by Thursday? - - - In terms of what I was requesting, I mean, I think that highlighted why I was requesting what part of his job he could and couldn’t do. I mean, he demonstrated that he was on the email, voluntarily. I wasn’t asking him to do it. I had been asking in the past for a response. He wasn’t providing me what I considered suitable medical certificates. I think it was a reasonable assumption to make, that he would respond to the document put to him earlier about his performance.”[28]

   [28] Line 19, page 241 - 13 July 2007 to line 6, page 16 - 29 February 2008

4. I note the applicant had sent a copy of his complaint to Mr Doig and to senior officers of the respondent. That complaint requested a response as soon as possible. The applicant gave evidence he was corresponding with Mr Stops during this time and working on his response to the allegations put to him on 21 July 2006. The applicant did not deny he could have done what Mr Doig asked of him and there was no evidence to the contrary.

5. Whilst I note the applicant denied receiving the email from Mr Doig which included the deadline for a response to the extent it is necessary to do so I am satisfied it is probable he did. Having regard to all the evidence it is in my view improbable Mr Doig would have included such a timeline were the applicant not aware of it first. As outlined earlier I prefer the evidence of Mr Doig where it is in conflict with the applicant.

6. I am also satisfied Mr Doig did not understand the applicant was going to provide a response on or after 31 July 2006. As the respondent submitted:

   “28. Mr Doig’s evidence was that the Applicant said that he would not be able to respond to the 21 July document “for a few days” and made no mention of 31 July as a return date. Mr Doig maintained that he never agreed to extend the time within which the Applicant could provide a response to whenever the Applicant was ready and able to return to work, 31 July or otherwise: (Ex. R3 [84]-[85], [100]; T-218 lines 23 to 45). As far as Mr Doig was concerned, it was clear to both he and the Applicant that this meant the deadline for a response was further extended to Thursday night: (29 February 2008 T-15 lines 19 to 24).

   29. Importantly, Mr Doig’s evidence was entirely consistent with the emails sent to the Applicant the next day: (R3, CD-27). In the first email, sent at 8.07am, Mr Doig confirmed the request for a medical certificate and then said: “I trust you will respond to the allegations in a timely manner.” In the email sent later that day, at 5.58pm, (CD-27, 2^nd page, 3^rd para) Mr Doig set out his understanding of what had been discussed in the previous evening’s conversation.

   
   

   He confirmed that the Applicant had informed him that “you will be for the next few days unable to respond to the allegations….”  Mr Doig then set an extended deadline of 5pm Thursday 27 July. Mr Doig did not refer to any request for an extension to 31 July, much less any request for an open-ended “when I return to work” extension, especially one based on a “hope” of a return on 31 July.

   30. Further, it is unlikely in the circumstances that Mr Doig would have countenanced an extension of “when I return to work”, especially one without a fixed date. When Mr Doig met with the Applicant and the union representative on Friday 21 July and gave the Applicant the 21 July document he had only agreed to grant a brief extension, to Monday

   
   

   24 July. When the 24 July conversation occurred, that extended deadline had passed. Further, the Applicant was not co-operating with Mr Doig’s requests for more information than “medical illness” in medical certificates.

   31. Mr Doig’s second CD27 email presents two difficulties for the Applicant. Firstly, it is a contemporaneous statement that supports Mr Doig’s recollection as to what the Applicant had said to him on 24 July (cf: s.64(3) Evidence Act 1995). Secondly, regardless of whether Mr Doig’s email accurately recorded what the Applicant had actually said in the 24 July telephone conversation, the email indicates that at that point in time Mr Doig was operating under the genuine belief that the Applicant had only sought a few days and had not sought a longer extension.

   32.The Applicant at paragraph 24(c), (d) and (g) of his final submission criticises Mr Doig’s management of the sick leave issue. …Rightly or wrongly, Mr Doig directed the Applicant to provide medical certificates that provided more information because he wanted to manage the sick leave and believed he had a right to do this, acting on legal advice: (Doig in T-216 lines 10 to 26; 217 line 15 to 218 line 2; A70; R3 CD-27; 29 February 2008 T-10 lines 10 to 15). That evidence was not challenged. This rebuts any suggestion or assumption that Mr Doig did this wholly or partly because of the simple fact of the Applicant being temporarily absent from work due to illness.”

7. Sperandio v Lynch [2006] FCA 1648 is also a case which also concerned a claim of unlawful termination on the basis of temporary absence due to illness or injury. Jessup J’s reasons at [87-90] are, in my view, instructive in the context of this particular matter.

   “87. In item 5 of their letter dated 4 March 2005, the respondents left no doubt but that the applicant’s departure from the workplace on 7 February 2005 was a reason why they terminated her employment. If they had an actual, albeit mistaken, belief about the character of the applicant’s departure from the workplace, their reason for the termination would not have been the applicant’s absence on sick leave. The question is whether I should accept that they had an actual, but mistaken, belief in that respect.

   
   

   The question concerns the respondents’ state of knowledge on 4 March 2005. By then they were well aware that the applicant was absent on sick leave, and had been so absent since 7 February 2005 – there were medical certificates to prove it. They also knew, from what the applicant told

   
   

   Dr Sandra Lynch on 22 February 2005, that the applicant’s medical reason for being absent was based on stress.

   
   

   The applicant’s comment, upon which the respondents relied in item 5, that she "lost it" was, as stated by Dr Lynch in her evidence, related to the applicant having seen the note from Dr James Lynch.

   88. If all the respondents knew about the events of 7 February 2005 (when they were themselves on leave) was what the applicant told Dr Sandra Lynch on the telephone on

   
   22 February 2005

   , there might be some room for misunderstanding on the respondents’ part. Even that would require that I reject the evidence of the applicant that she told Dr Lynch, in that conversation, that the note made her "sick and distressed". If I did so, however, it would be possible to find that, at all times up to 4 March 2005, the respondents actually believed that the applicant had left the workplace on 7 February in an act of defiance, rather than because of her illness. I say "possible" because it would by no means follow that such a finding would be made: the medical certificates supplied by Dr Stewart would raise the strongest doubts, to say the least, about the existence of such a belief.

   89. But there is another factor of considerable importance.

   
   

   Ms Fisher was acting as Practice Manager while the applicant was on leave. In the absence of the respondents themselves, I can think of no reason why I should not infer that Ms Fisher was in effect in charge of the office pending the applicant’s return, and again after the applicant re-departed on 7 February. She was the respondents’ representative in their dealings with the applicant on that day. The evidence of the interaction between her and the applicant to which I have referred in para 44 above was not challenged by the respondents. Ms Fisher was not called. That Ms Fisher would not have accurately related the events of 7 February to the respondents on their return from leave (or before that time) is, I consider, a most unlikely possibility. The subject was not the subject of any evidence on behalf of the respondents.

   90. I am compelled to the conclusion, on the probabilities, that Ms Fisher informed the respondents of the applicant’s reaction to the note left for her by Dr James Lynch, and of the real reason why the applicant left work on 7 February 2005. I do not accept the evidence of Dr Sandra Lynch that, immediately before she spoke to the applicant by telephone on 22 February 2005, she had no more reason to believe that the applicant was on leave because of an illness of the mind than because she had, for example, fallen down the stairs and injured her leg (as she put it). If there were any room for doubt in that respect, it was removed by what the applicant said on that occasion. More significantly, I find that, as a result of what Ms Fisher most probably told them (together with the medical certificates and the information given by the applicant herself on 22 February), on 4 March 2005 the respondents did not actually believe that the applicant’s departure from work on 7 February was by way of an act of defiance. They then well knew that the applicant had left work in a state of distress, that Ms Fisher had advised her to take some time off on WorkCover, and that the circumstances of her departure led directly to the provision of medical certificates by Dr Stewart.”

8. In that case His Honour did not accept the respondent’s belief about the applicant’s absence was either actual or mistaken. His Honour accepted the contention of the applicant in that case that the respondents would have been told why the applicant had left the workplace. As set out earlier, His Honour found in that case the respondent had not met the burden. In this case for the reasons set out above, the situation is different and I accept the respondent’s stated reasons and reject the applicant’s contentions to the contrary.

9. Moreover, in the circumstances I am not satisfied that there was an agreement on the respondent’s part or Mr Doig to an extension of time for the applicant to respond to the allegations until 31 July 2006, much less any request for an open-ended “when I return to work” extension. I accept that as there had been no response to the allegations and no medical information suggesting the applicant was unable to provide such a response by 27 July 2006, Mr Doig then determined to proceed as had been foreshadowed on 25 July 2006. On 28 July 2006 the applicant was advised that his employment was terminated for the reasons set out in the termination letter.

10. The notice of termination[29] provided:

    “The reason for my decision of your poor work performance, the particulars of which are set out in the document I handed to you on 21 July 2006.

    As you are aware, you were warned in relation to your poor work performance on many occasions, including my letters to you dated 5 May 2006 and 21 February 2006. You were also provided with opportunities to respond to the allegations in relation to your poor work performance. You did not take these opportunities despite having several opportunities to do so in the last week (in person, on the telephone and in writing) and despite being given several days to provide medical evidence which certifies that you could not respond by any means. Further, your correspondence to Merck over the last few days suggests that a written response to the allegations in my document was or should have been possible.”

    [29] CD 30 “R3”

11. For all the reasons set out above I am satisfied that the respondent’s reasons for the termination of the applicant were as set out above and this was reinforced by the weight of evidence that the applicant was a difficult employee, who consistently failed to address the performance requirements set for or required of him. The evidence adduced by the respondent which I accept, in light of all the evidence is sufficient in my view to discharge the burden under s.664.

12. In Heidt v Chrysler Australia (1976) 26 FLR 257 which considered the predecessor to s.664 of the WR Act, it was made clear that the Court should consider:

    “…all the facts and circumstances leading up to the dismissal including any reason expressed at the time of dismissal, as well as any denial of the reason alleged in the charge.”[30]

    [30] Para 44 – Respondent’s submissions

13. Having regard to all the evidence I am not satisfied the facts in this case are consistent with the hypothesis that the applicant was dismissed because of temporary absence due to illness or injury. The preponderance of the evidence is to the contrary and is that the reason for termination was the applicant’s performance and his failure to address what the respondent required of him. On the balance of probabilities the respondent has shown that reason or reasons for termination did not include a prohibited reason.

14. Having reviewed the transcript in this matter and considered all the facts and circumstances leading up to the time of the termination, I am satisfied the respondent has discharged the onus it was required to meet. Accordingly, the applicant’s claim in this regard fails.

Notice of termination

1. The applicant also alleged that in breach of his contract of employment the respondent failed to provide him with reasonable notice or pay or in lieu of such notice. The respondent in submissions said the applicant’s claim on this issue “must fail” as:

   “The fundamental obstacle for the Applicant is that one does not imply a term of reasonable notice unless it is necessary to do so.”[31]

   [31] Para 44 Respondent’s submissions

2. The respondent contended that the terms of the Commercial Sales (Victoria) Award 1999 (“the Award”)[32] applied to the applicant’s employment. The applicant had argued that the Award was not in existence at the time he commenced employment and in any event he was not covered by it.

   [32] Exhibit R6

3. The starting point for the consideration of this issue is the contract of employment itself. However before doing so, it is timely to note that upon termination the applicant (who was 46 years of age) received

   
   

   5 weeks pay in lieu of notice.

4. The applicant’s contract of employment provided inter alia that he was:

   “…required to give the Company four (4) weeks notice in writing if you intend to resign from your employment. Likewise, the Company is required to give you four (4) weeks notice in writing if your employment is terminated except in the case of serious misconduct on your part which is your employment may be terminated without notice.” [33]

   [33] Exhibit A2

5. The respondent’s policy on termination (Ex A6) included notice of termination provisions as follows:

   “The following table indicates the minimum amount of notice given:
   
   

Years of Service	Notice Required by Law
Less than 1 year	One (1) week
1-3 years	Two (2) weeks
3-5 years	Three (3) weeks
More than 5 years	Four (4) weeks

Payment in lieu of notice is at MSDA’s discretion and must equal or exceed the total amount that would have been paid to that Employee if he/she had worked through their notice period.

If the Employee is aged forty five (45) years or over and has been employed with MSDA for at least two (2) years continuous service, MSDA will add one week to the above notice period.”

1. The applicant argued that given he was 46 years of age at the time of termination, the express terms of the contract did not deal with notice. Accordingly (so the argument as I understood it went) the need to imply a term of reasonable notice arose. The applicant’s position on this issue was summarised in the submissions filed on his behalf as follows:

   “64. It follows that, in the absence of an express term in the contract, and regardless of the later provision as to notice in the Award, there was implied into the Applicant's contract of employment from its inception, as a matter of law, a term requiring reasonable notice of termination. 

   65. That term of reasonable notice arises as:

   (a)the express term as to notice fails to deal with the situation of a person who has had at least 5 years service is over 45 years of age; and alternatively

   (b) as “minimum notice periods” have been expressly incorporated into the applicant’s contract of employment”: Riverwood International v McCormick (2000)177 ALR 193”

2. On the last point the applicant’s position was the contract and the respondent’s policy which provided a minimum scale of notice periods enabled a term at law of reasonable notice to be implied. The applicant relied on inter alia the decision of Driver FM in Windross v Transact Communications Pty Ltd [2002] FMCA 145 (“Windross”).

3. In Windross His Honour referred to the decision in Western v Union des Assurance de Paris (1999) 88 IR 259 as authority for the proposition that the specification of a minimum period of notice leaves room for the implication of reasonable notice of a longer period in an employment contract. His Honour referring to the decision in New South Wales Cancer Council v Sarfaty [1992] 28 NSWLR 68 noted it was a question of construction whether the parties intended the express provisions relating to termination to be comprehensive.

4. In coming to the conclusion that the implied term of reasonable notice was not excluded by the express terms of the contract His Honour found it unnecessary to decide whether it was implied by fact or by law. The decision did not appear to involve a consideration of the impact of the statutory minimum in the WR Act or the application of an award provision providing for an ‘actual’ rather than ‘minimum’ period of notice. For the reasons that will shortly become apparent, that is not the situation here.

5. The respondent in submissions noted that:

   ·    “had [the applicant] been dismissed at any time in 2000 to 2005, before turning 45 years of age, the express 4 weeks notice term would have been enforceable, unaffected by any statutory minimum. Accordingly, neither at the time the employment contract was made, nor until at least 2005, was there any cause to imply a term as to reasonable notice;

   ·    [W]hen he was dismissed, the Applicant had accrued a statutory right to a minimum of 5 weeks notice or payment in lieu, by operation of s.661 of the WR Act. It was a right enforceable against the Respondent under the WR Act;

   ·    none of this alters the plain fact that the employment contract still had an express term as to notice. The only change that occurred was that the minimum amount to which the Applicant became entitled was affected by a statutory provision. Accordingly, there is simply no basis to argue that there is room for an implied term here; and

   ·    [the Award] applied to the Applicant’s employment and it has a clause making provision for notice of termination. In those circumstances it is not necessary to imply a term of reasonable notice.”[34]

   [34] Para 46-48 of Respondent’s submissions

1. Here, there was no question the applicant was aware of the concerns the respondent had with his performance. As the applicant candidly acknowledged in his evidence he just did not accept those concerns.

   
   

   He gave no evidence capable of establishing how the decisions taken here were contrary to the bonus scheme.

2. In submissions made on his behalf the applicant acknowledged the respondent’s policies were discretionary. He could hardly do otherwise in the face of the clear words of those policies. Moreover the applicant’s letter of appointment provided inter alia that:

   “COMPANY POLICY

   You agree to be bound by the policies of the Company as may exist from time to time. You acknowledge and accept that is the prerogative of the Company to vary, change or terminate existing Company policies as well as devise and introduce new policies for the Company. The Company shall take all reasonable steps to ensure that employees are aware of Company policies. You shall make all reasonable efforts to ensure you are aware of Company policies.”

3. As set out earlier in relation to sick leave there is nothing in the present case which would cause me to find that the contract of employment prevents or precludes the respondent from varying its own policies and procedures from time to time and this includes the bonus scheme.

   
   

   This is different to the situation in Riverwood as it is not possible to find the policies were contractual.

4. Furthermore, even if they had been found that the terms of the plan formed part of the contractual provisions of his employment (and there is no evidence such as was held in Riverwood as sufficient to do so), there is nothing to indicate the respondent could not determine that the applicant was not entitled to annual bonuses and salary increases.

   
   

   In this case, like that in Rankin, the bonus scheme was clearly discretionary and dependant upon a decision being made by the respondent. Similarly the salary increases were subject to the applicant’s performance and a decision by the respondent on this.

5. In his opening Counsel for the applicant said there were inconsistencies in the respondent’s conduct and this raised the question of whether the respondent was right to find that the applicant did not meet the criteria for entitlements under those policies by virtue of his under performance.

6. Both the 2005 and 2006 Incentive Plans provided they were subject to a number of performance parameters and were “a discretionary payment not an entitlement.” Those plans also provided the relevant director had the right to vary any parameters “without notice” and reserved to the relevant director the right to “exclude any participant on the grounds of unacceptable performance.”

7. Mr Doig deposed that the applicant did not receive bonuses, and why he was not eligible for a bonus in 2005 and 2006 because:

   “109.…Mr Bognar’s performance in 2005 had been assessed in unsatisfactory he was made ineligible for bonus payments for the 3^rd and 4^th quarters of 2005.

   …

   113.In respect of the 1^st quarter of 2006, he was not eligible to participate in the Incentive Plan unless he was granted re-entry by me or another senior manager. I was of the view that he should not be re-entered because he had yet to shown a sustained improvement in performance…

   
   

   I asked Mr Broadley what he thought. He didn’t think there was a case to re-enter Mr Bognar at that stage.

   
   

   We were agreed on that, so Mr Bognar was not re-instated to the Plan.”

8. In his evidence in chief Mr Broadley was asked:

   “MR DALTON: Yes. In your statement, you say that you decided that Mr Bognar should not be eligible to participate in the 2005 sales incentive plan, effective after the quarter three had got the 2005 bonus for the period. Just to be clear on that, by that do you mean that he was not eligible to participate in the quarter four 2005 bonus period and any bonus period after that, unless and until he was reinstated to the plan?---That’s correct..”[52]

   [52] Line 28, page 28 - 29 February 2008

9. The applicant’s evidence at its highest was he did not believe the appropriate steps had been taken in relation to recording his performance. However he could not point to any other evidence to corroborate this. Moreover he was unable to point to any provision of the eligibility criteria for the bonus scheme or otherwise to ground such an argument.[53] 

   [53] The principles for the 2006 plan at CB4 to Exhibit R3 provides that the terms of the plan do not form part of the employees contract of employment

10. In submissions the respondent noted:

    “83.The Applicant relies on United Kingdom authority which offers support for the proposition that, in appropriate cases, a term should be implied requiring the employer not to exercise the discretion in a capricious manner. That is to say, the United Kingdom cases have been prepared to intervene where satisfied that no reasonable person could have exercised the discretion in the way the employer did. Even if such a term were to be implied here, there is nothing in the Applicant’s case that suggests that the Respondent exercised its discretion under the bonus scheme in a way that no other reasonable person would have done.

    
    

    The Applicant may dispute the decision of the Respondent to deem his performance unsatisfactory but it is a different thing altogether to prove a breach of the alleged implied term. The Applicant must prove that the exercise of the discretion was so perverse as to be such that no other reasonable person could have exercised it in that manner. The material before the Court suggests that the Applicant has no chance of making that claim out.

    84.Indeed, in respect of the 4th quarter of 2005, the objective evidence shows that, to be eligible to participate in the scheme the Applicant had to be deemed to be performing at a satisfactory level in “all areas of performance” and also had to have achieved the quarterly validation targets and delivering on the PPG objectives (R7 CB1). The Applicant was deemed not to have met the eligibility criteria for participation in the plan: (R7 paragraphs 6 to 9). A clear example of where the Applicant fell short of his PPG objectives was in respect of Nurse Assessment Days for the Heartbete program. His annual target in his PPG was

    
    

    20 NADs: (R3 CD6 pages 4, 6 and 7). The plain facts are that by the end of year assessment the Applicant only achieved 14 NADs: (R7 paragraph 9 and CB2, CB3).

    
    

    The Applicant has protested his innocence as to how he came to claim an additional 7 NADs in respect of Dr Boon’s patients at the Hastings Clinic, but he has not challenged the fact that none of those NADs occurred. He pointed to no other NADs.

    85.Further, in respect of the 2006 period, performance issues are not relevant:

    a)For quarter 1 2006, the Applicant was completely subject to the discretion of the Respondent: (R7 CB4 page 3). That is, having been deemed ineligible the previous quarter, the only way the Applicant could be reinstated as an eligible participant in the incentive scheme was if Mr Broadley or Mr Doig exercised discretion to reinstate. That discretion was not subject to any guided criteria. The Applicant was not reinstated: (R7 paragraphs 26 and 27).

    b)More fundamentally, under clause 1.3 of the 2006 Plan (R7 CB4), upon the termination of his employment the Applicant was rendered “not eligible for any components outlined in this document or the accompanying Sales Incentive document.” It is clear from clause 1.3(a) (when regard is had to 1.3(b) and (c)) that this means the Applicant became ineligible for any bonus for any period in 2006 whether he had been employed throughout that period or not.”

11. The evidence on this issue is conclusive. It is to the effect that the respondent did determine that the applicant was not entitled to annual bonuses and salary increases, by virtue of the performance problems and concerns that had been repeatedly raised with him during the course of the period in question. The applicant’s submissions did not identify any evidence capable of establishing he met the “criteria” for the annual bonus or wage increase. The evidence of Mr Doig and

    
    

    Mr Broadley, which was not contradicted, is in my view determinative of the point. Mr Doig made the recommendation in accordance with the terms of the plan due to the applicant’s performance he was not eligible and in conjunction with Mr Broadley would not be considered eligible in 2006 for the same reasons. There is nothing to persuade me to the requisite standard that they acted other than in accordance with the applicable policy in relation to either issue.

12. As the respondent submitted:

    “…there is nothing in the Applicant’s case that suggests that the Respondent exercised its discretion under the bonus scheme in a way that no other reasonable person would have done.”

13. Accordingly, for the reasons set out above the applicant’s claims in relation to annual bonuses and salary increases also fail.

Conclusion

1. I have concluded that the applicant’s claim alleging a breach of s.659 must fail as the respondent has discharged the onus imposed by s.664 and has established that the reason for the applicant’s termination was for a reason or reasons that did not include a reason set out in s.659.

2. I am also satisfied that the other claims made by the applicant in his application are not made out. As a result, the amended application filed 29 January 2007 should be dismissed.

3. These are proceedings to which s.666 of the WR Act applies. Whilst in the event the application was dismissed the respondent had sought costs it had not made any submissions on the issue.

4. In the circumstances, the respondent will have 7 days to file and serve submissions in relation to any application for costs and the applicant have a further 7 days to file and serve any submissions in reply. Unless otherwise requested in written submissions the issue of costs will be determined on the papers.

5. For the reasons set out above, I make the orders set out at the beginning of these reasons for judgment.

I certify that the preceding two hundred and eleven (211) paragraphs are a true copy of the reasons for judgment of O’Sullivan FM

Associate:  Rachelle Lombardo

Date:  16 May 2008

ANNEXURE A

Bognar v Merck Sharp & Dohme (Australia) Pty Ltd
Chronology of key events

212.      Date	213.      Event	214.      Reference
215.      12 July 1993	216.      Bognar commenced employment with Amrad	217.      Bognar Affidavit
218.      Late 2000	219.      Merck took over Amrad	220.      Doig para 9
221.      20 November 2000	222.      Bognar signed employment contract as Senior Territory Manager	223.      Doig para 10 224.      CD-1
225.      Mid 2001	226.      Doig started in current role as Senior Professional Services Manager	227.      Doig para 4
228.      7 March 2003	229.      Bognar given formal letter of warning of need for immediate performance improvement by his then manager, Mr Rucli	230.      Doig para 43 231.      CD-2
232.      24 March 2003	233.      Rucli met with Bognar and raised concerns – particularly re failure to plan	234.      Doig para 43 235.      CD-3
236.      Late 2004	237.      Merck decided to implement more “customer-centric” sales model	238.      Doig para 19
239.      December 2004	240.      Bognar end of year review – rated unsatisfactory on 2 of 4 key objectives	241.      Doig para 43 242.      CD-4 and CD-5
243.      17 February 2005	244.      Smith prepared field report – notes that planning is required	245.      Doig para 44 246.      CD-8
247.      19 July 2005	248.      Smith prepared field report – notes that planning is required	249.      Doig para 44 250.      CD-9
251.      24 August 2005	252.      Smith prepared field report – states “must plan your day”	253.      Doig para 44 254.      CD-10
255.      12 October 2005	256.      Smith stated in a field report that Bognar needed 20 Nurse Assessment Days as part of the Heartbete program	257.      Broadley para 8
258.      3 November 2005	259.      Recorded as “HB Nurse Date 2005” in Bognar’s electronic diary under “Bernard Boon” 260.      “HB” is a reference to the Heartbete program	261.      Exhibit R8 262.      Bognar oral evidence – transcript pages 155 and 157-158
263.      8 November 2005	264.      Bognar sent a fax to MSDA requesting 150 invitations for Heartbete Nurse Assessment Days at Hastings Central Medical Centre 265.      Recorded as “HB Nurse Date 2005” in Bognar’s electronic diary under “Bernard Boon”	266.      Exhibit R1 267.      Bognar oral evidence – transcript pages 142-154
268.      10 November 2005	269.      Recorded as “HB Nurse Date 2005” in Bognar’s electronic diary under “Bernard Boon”	270.      Exhibit R8
271.      15 November 2005	272.      Smith prepared field report – states that Bognar is achieving below expectations and not likely to achieve targets for the year 273.      Recorded as “HB Nurse Date 2005” in Bognar’s electronic diary under “Bernard Boon”	274.      Doig para 44 275.      CD-11 276.      Exhibit R8
277.      24 November  2005	278.      Dr Boon wrote letter to MSDA stating that Bognar had encouraged them to participate in the Heartbete program and that they had sent out over 200 invitations and reviewed 112 patients over 7 days in the preceding 4 weeks	279.      CB-2 280.
281.      25 November 2005	282.      Bognar attended Boon’s surgery (Hastings Central Medical Centre) to collect letter from Dr Boon 283.      Bognar subsequently had performance review meeting with Smith. Bognar produced Boon letter dated 24 November 284.      Smith subsequently investigated and was advised by Boon’s nurse that no Nurse Assessment Days had been conducted	285.      Broadley para 10 286.      CB-2 287.      Bognar oral evidence – transcript pages 151-152 288.      Exhibit R8
289.      1 December 2005	290.      Smith and Broadley met with Bognar about alleged falsification of records	291.      Broadley para 14
292.      2 December 2005	293.      Boon wrote further letter admitting that no Nurse Assessment Days had been conducted	294.      Broadley para 11 295.      CB-3 296.      Bognar oral evidence – transcript pages 153-154 and 156-158
297.      5 December 2005	298.      Meeting with Smith, Broadley, Micallef and Bognar to discuss “fraud”	299.      Broadley para 15
300.      5 to 15 December 2005	301.      Bognar suspended on full pay	302.      Broadley para 15
303.      20 to 21 December	304.      Bognar asked to attend meeting with Smith, but declined to because he was sick and not contactable	305.      Broadley para 16
306.      22 December 2005	307.      Bognar commenced annual leave, extending to 16 February 2006	308.      Doig para 111 309.      Broadley para 17
310.      December 2005	311.      Bognar end of year review – rated unsatisfactory overall 312.      Broadley made decision to exclude him from incentive plan 313.      (communicated to Bognar in February 2006)	314.      Doig para 43 315.      Broadley para 6 316.      CD-5 and CD-6
317.      January 2006	318.      Doig was advised by Broadley that Bognar would be moving into his team 319.      Doig spoke to Broadley about Bognar’s previous performance ratings and underperformance issues 320.      Doig reviewed Bognar’s file	321.      Doing para 41-43
322.      Early 2006	323.      PDA Meridian rolled out	324.      Doig para 27
325.      21 February 2006	326.      Doig drafted FIRST AND FINAL WRITTEN WARNING letter 327.      Letter confirmed that Bognar had not qualified for incentive program “commencing from quarter 3 2005”	328.      Doig para 47 and 110 329.      CD-12
330.      27 February 2006	331.      Doig met with Bognar. Provided letter and told him he would be subject to a formal, active review of his performance	332.      Doig para 49
333.      Late February 2006	334.      Bognar joined Doig’s sales team 335.      Weekly performance catch ups from this time onwards	336.      Doig para 1
337.      10 March  2006	338.      Doig met Bognar to discuss performance plan and provide progress feedback	339.      Doig para 57 340.
341.      16 March 2006	342.      Doig emailed Bognar setting out the minimum expectations discussed above	343.      CD-14
344.      24 March 2006	345.      Doig met Bognar to discuss performance. Noted he was still not accepting performance shortfall	346.      Doig para 57 347.      CD-15
348.      27 March 2006	349.      Bognar fell asleep in sales rep team meeting at Sofitel in Melbourne	350.      Doig para 64
351.      Late March 2006	352.      Bognar not eligible to participate in performance incentive plan unless granted re-entry. Doig formed the view (in consultation with Broadley) that he should not be granted re-entry	353.      Doig para 113
354.      April 2006	355.      “Engage and Understand” element of new model rolled out	356.      Doig para 25
357.      April 2006	358.      Bognar given 3 days training on Meridian 359.      (note – Bognar says completed training modules on 3/3, 7/3, 13/3 and 20/3 – Exhibit A34)	360.      Doig para 67
361.      11 April 2006	362.      Bognar took paid sick leave	363.      Doig para 104
364.      13 April 2006	365.      Doig met Bognar and highlighted issues relating to planning and use of tools (ie Meridian) 366.      Doig raised issue of falling asleep 367.      Comments noted in email	368.      Doig para 57 369.      CD-16
370.      24 and 26 April	371.      Bognar took paid sick leave	372.      Doig para 104
373.      1 May 2006	374.      Meeting with Bognar, Doig and Maas	375.      Bognar docs – tab 44 (NUW letter)
376.      4 May 2006	377.      Doig provided one on one training to Bognar on Meridian	378.      Doig para 67
379.      5 May 2006	380.      Doig provided field report relating to 4 May field day – lack of planning highlighted	381.      Doig para 54 382.      CD-13
383.      5 May 2006	384.      Formal performance review 385.      Doig issued Bognar with a further written warning, stating that failure to meet minimum requirements would result in termination. Set out 8 point plan and specific performance issues 386.      Senior Professional Representative status suspended for 12 months 387.      Review set for 30 June 2006	388.      Doig para 60 389.      CD-17 390.
391.      8 May 2006	392.      Denise Jennings provided one on one training to Bognar on Meridian	393.      Doig para 67
394.      15 May 2006	395.      Bognar fell asleep in sales rep team meeting	396.      Doig para 64
397.      15 May 2006	398.      NUW wrote to Doig re allegations made in meetings of 1 May and 5 May, denying those allegations	399.      Bognar docs – tab 44 (NUW letter)
400.      16 May 2006	401.      Doig emailed Bognar to express disappointment at lack of regard for PIP and to remind him of expectations	402.      Doig para 62 403.      CD-19
404.      19 May 2006	405.      Bognar sent Doig email saying PDA Meridian was “plainly senseless and a waste of time”	406.      Doig para 66 407.      CD-23
408.      22 May to 14 June 2006	409.      Bognar stood down on full pay while allegations of sexual harassment investigated	410.      Doig para 71
411.      13 June 2006	412.      Bognar issued with a final warning in respect of the harassment incident 413.      Performance management review meeting deferred until 21 July 2006	414.      Doig para 72
415.      14 to 19 June 2006	416.      Bognar took paid sick leave	417.      Doig para 104 418.      CD-36 and CD-37
419.      19 June 2006	420.      Further letter from NUW to Doig re allegations raised	421.      Bognar documents – tab 66
422.      26 June 2006	423.      Doig told Bognar that PIP would be deferred to take account of a period of sick leave absence 424.      Doig sent detailed email setting out discussion re performance as against PIP 425.      Response provided to NUW	426.      Doig para 62 427.      CD-20 428.        429.      Bognar documents – tab 69
430.      26 June 2006	431.      Doig provided Bognar one on one training re Meridian	432.      Doig para 67
433.      29 June 2006	434.      Bognar failed assessment on use of Meridian	435.      Doig para 67
436.      Late June 2006	437.      Bognar wore a t-shirt with “deny everything” written on front to work conference	438.      Doig para 69
439.      3 to 4 July , 5 to 7 July, 10 to 15 July 2006	440.      Bognar claims sick leave	441.      Doig para 91 442.      Bognar Affidavit para 18
443.      10 July 2006	444.      Doig emailed Bognar asking for further information about fitness for duty 445.      Bognar sent response, refusing to provide any further information	446.      Doig para 92-94 447.      CD-31and CD-32
448.      12 July 2006	449.      Doig sent Bognar more detailed email as to why further information required	450.      Doig para 95 451.      CD-33
452.      13 July 2006	453.      Doig sent letter to Dr Yeap, seeking further information	454.      Doig para 97 455.      CD-34
456.      17 July 2006	457.      Doig met with Bognar to discuss performance	458.      Doig para 62
459.      18 July 2006	460.      Doig sent Bognar detailed email setting out performance problems discussed	461.      Doig para 62 462.      CD-22
463.      21 July 2006	464.      Doig met with Bognar and provided him “Summary of Allegations in Relation to Poor Performance” 465.      Bognar was given until 2.00 pm 24 July to respond	466.      Doig para 73-75 467.      CD-24
468.      24 July 2006	469.      9.24 am: Bognar faxed a detailed letter to MSDA, addressed to Corless and Bradshaw and copied to Doig, making a complaint against Doig and Broadley regarding “ongoing allegations of poor performance”. 470.      Stated that he would not attend the meeting scheduled with Doig at 2.00 pm that day because he was “on leave due to illness.” 471.      There is a dispute over how Doig was notified of Bognar’s absence (cf.: Doig oral evidence – transcript p 217 and Bognar oral evidence – transcript p 79 and 243-244)	472.      Doig para 77 473.      CD-26 474.      Doig oral evidence – transcript p 217 475.      Bognar oral evidence – transcript pages 79 and 243-244
	5.28 pm: Calum Cook (Freehills) called Cameron Stops (NUW). Stops told Cook that Bognar intended to respond to the 21 July document, but Stops did not ask for any extension of time within which to provide a response.	476.      Stops oral evidence – transcript pages 199 to 200
	477.      5.55 pm: Doig called Bognar to ask for a medical certificate. Doig reminded Bognar that he should provide a detailed medical certificate. Bognar refused and stated words to the effect that “if you want that information you should get your solicitor to write a letter to request that information”. 478.      Doig asked Bognar whether he intended to reply to the allegations. Bognar replied that he did. 479.      Doig asked Bognar when he intended to provide his response. There is a dispute about what was said in response. Doig says that Bognar told him he “wouldn’t respond for a few days”; cf.: Bognar oral evidence – transcript pp 79 and 170; and exhibit A87.	480.      Doig oral evidence – transcript pages 217 to 218 and 222 481.      Bognar oral evidence – transcript pages 79 and 170 482.      Exhibit A87
483.      25 July 2006	484.      8.07 am: Doig sent Bognar an email to his MSDA email address setting out their conversation of the day before and reminding him of the requirement to submit a medical certificate within 2 days of the first day of sick leave. Stated “I trust you will respond to the allegations in a timely manner”.	485.      Doig para 78 486.      CD-27 487.      Bognar oral evidence – transcript pages 85 and 163 488.      Doig oral evidence – transcript pages 242-243
	489.      12.12 pm: A medical certificate for the period 24 to 29 July 2006 was faxed to MSDA from the Frankston medical clinic	490.      CD-25
	491.      Stops telephoned Doig to ask whether Bognar would be paid in respect of a particular period of sick leave. During that conversation, Stops did not raise with Doig anything about Bognar needing more time to respond to the performance allegations	492.      Doig oral evidence – transcript pages 221 to 222 493.      Stops oral evidence – transcript pages 202-203
	494.      5.18 pm: Doig sent email to Bognar at his MSDA email address: ·   requesting further medical certificate with detail; ·   acknowledging that Bognar had said that he would be unable to respond to the allegations relating to poor work performance for the “next few days”; ·   stating that he was to either respond in writing to the allegations or otherwise provide a medical certificate by 5pm on Thursday 27 July; ·   encouraging Bognar to take the opportunity to respond to the allegations; and ·   stating that if Bognar did not respond by that time, Doig would “consider making a decision as to the appropriate course of action in light of the allegations in relation to poor performance […] (which could be termination of […] employment)”	495.      Doig para 78 and 84 496.      CD-27 497.      Doig oral evidence – transcript p 222 498.      Bognar oral evidence – transcript pages 163-164, 167-168 and 176
	499.      6.19 pm: Doig sent an email to Bognar at his MSDA email address asking for an explanation regarding his failure to record data on Meridian	500.      Doig para 80 501.      CD-28
502.      26 July 2006	503.      11.51 am: Bognar lodged an expense report via the MSDA email system	504.      Doig para 81 505.      CD-29 506.      Doig oral evidence – transcript page 220 507.      Bognar oral evidence – transcript pages 163-168
	508.      12.01 pm: Bognar emailed Doig responding to the Meridian email (sent by Doig at 6.19 pm the previous day)	509.      CD-28 510.      Bognar oral evidence – transcript p 168
	511.      2.20 pm: Bognar sent an email from his fastmail account to Cameron Stops (NUW), attaching his “rebuttal” document	512.      Exhibit A82 513.      Bognar oral evidence – transcript p 168 514.      Stops oral evidence – transcript p 202
	515.      3.31 pm: Stops responded to Bognar saying “spoke to Craig but didn’t get anywhere, will address these issues when we meet with him next week…” 516.      The reference to ‘not getting anywhere’ was a reference to the payment for sick leave	517.      Exhibit A82 518.      Bognar oral evidence – transcript pages 168 to 170 519.      Stops oral evidence – transcript pages 202 to 203
520.      28 July 2006	521.      Doig made decision to terminate (had not received a response from Bognar)	522.      Doig para 86-89 523.      Doig oral evidence – transcript p 226
	524.      9am: Doig called Bognar and advised him of the decision to terminate. Bognar did not say anything to Doig to the effect that the decision to terminate was contrary to any agreed or previously communicated position about an extension of time within which to respond to the allegations 525.      Doig asked for preferred method of sending termination letter to Bognar. Bognar said by fax and gave him his fax number	526.      Doig para 88 527.      Bognar oral evidence – transcript pages 80 and 177 528.      Doig oral evidence – transcript pages 223-224
	529.      Morning: Doig sent termination letter by fax and by courier to Bognar’s home	530.      Doig para 89 531.      CD-30 532.      Doig oral evidence – transcript pages 223-224