Burnett v Eastern Health

[2015] FCA 1247

FEDERAL COURT OF AUSTRALIA

Burnett v Eastern Health [2015] FCA 1247

Citation:	Burnett v Eastern Health [2015] FCA 1247
Parties:	MELISSAH BURNETT v EASTERN HEALTH (ABN 68 223 819 017)
File number:	VID 698 of 2015
Judge:	BROMBERG J
Date of judgment:	17 November 2015
Catchwords:	INDUSTRIAL LAW – application for interim injunction – applicant alleged that the “Discipline” clause of an enterprise agreement had been breached (and thus so, too, had s 50 Fair Work Act 2009) by the conducting by the respondent of a flawed investigation of the applicant’s conduct – applicant further alleged that adverse action had been taken against her for a prohibited reason, viz, her exercise of a workplace right, constituting breach of s 340 FW Act – interim relief sought to prevent respondent acting upon termination decision in relation to the applicant’s employment, the taking of other disciplinary action against the applicant, or the continuing of any investigation against the applicant – whether serious question to be tried –consideration of balance of convenience – strongly-arguable serious question to be tried in relation to breach of enterprise agreement – balance of convenience slightly favoured the granting of interim relief – consideration of serious question and balance of convenience favoured maintenance of status quo – interim relief issued to prevent the effecting of the termination decision, and the taking of other disciplinary action, in each case where founded upon impugned investigation
Legislation:	Fair Work Act 2009 (Cth), ss 50, 340, 341, 545
Cases cited:	Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238 Gregory v Phillip Morris Ltd (1988) 24 IR 397
Date of hearing:	12 November 2015
Place:	Sydney
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	55
Counsel for the Applicant:	Ms R Nelson
Solicitor for the Applicant:	Maurice Blackburn Lawyers
Counsel for the Respondent:	Mr J R M Tracey
Solicitor for the Respondent:	TressCox Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION	VID 698 of 2015

BETWEEN:	MELISSAH BURNETT Applicant
AND:	EASTERN HEALTH (ABN 68 223 819 017) Respondent

JUDGE:	BROMBERG J
DATE OF ORDER:	17 NOVEMBER 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Until the hearing and determination of the applicant’s claim for final relief, or further order, the respondent is restrained from:

(a)taking any step to give effect to the decision to terminate the applicant’s employment recorded in correspondence dated 11 November 2015 from the respondent to the applicant; and

(b)taking any disciplinary action against the applicant predicated upon the investigation referred to and the findings recorded in correspondence dated 7 October 2015 from the respondent to the applicant.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION	VID 698 of 2015

BETWEEN:	MELISSAH BURNETT Applicant
AND:	EASTERN HEALTH (ABN 68 223 819 017) Respondent

JUDGE:	BROMBERG J
DATE:	17 NOVEMBER 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Melissah Burnett is a registered nurse employed by Eastern Health as the Nurse Unit Manager (NUM) of the Special Care Nursery (SCN) at Box Hill Hospital (the Hospital).  On 11 November 2015, Eastern Health notified Ms Burnett of its intention to terminate her employment for serious misconduct (the termination decision). 

2. Anticipating that Eastern Health may take that course, Ms Burnett instituted these proceedings on 28 October 2015.  By her application, Ms Burnett sought interlocutory relief including an injunction restraining Eastern Health from terminating her employment.  At a case management conference on 4 November 2015, Eastern Health undertook that it would not dismiss Ms Burnett from her employment or take any disciplinary action against her until the hearing and determination of her interlocutory application.  By reason of that undertaking, Eastern Health has not acted upon the termination decision.

3. The matter returned to Court on 12 November 2015, following an unsuccessful mediation.  Ms Burnett pressed her application for interlocutory relief. 

4. The current position is that Eastern Health continues to employ Ms Burnett.  She has not been required to perform her duties since 24 August 2015, but remains on full pay.  She seeks the maintenance of that status quo, pending the hearing and determination of her claim for final relief.  Conversely, Eastern Health seeks the dismissal of Ms Burnett’s application so that the termination decision can be effectuated. 

5. Whether an order should be made requiring Eastern Health to maintain Ms Burnett in her employment until trial, on the basis that she remain on paid leave, is to be answered by reference to the two main inquires that a court is bound to address in determining an application for an interlocutory injunction.  First, whether the applicant has made out a prima facie case in the sense that, if the evidence remains as it is, there is a probability that at the trial of the action the applicant will be held to be entitled to relief (is there a serious question to be tried?);  second, whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs, or is outweighed by, the injury which the respondent would suffer if an injunction were granted (does the balance of convenience favour the granting of the relief sought?):  Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65]–[72] (Gummow and Hayne JJ, Gleeson CJ and Crennan J agreeing at [19]). An important factor in the Court’s consideration of where the balance of convenience lies, which may or may not be determinative, is the adequacy of damages as a remedy: Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238 at [62]–[63] (Dowsett, Foster and Yates JJ).

6. Eastern Health conceded that there is a serious question to be tried on each of the two causes of action relied upon by Ms Burnett (although it characterised the claims as “weak”).  But as Dowsett, Foster and Yates JJ observed in Samsung at [67]:

   … The question of whether there is a serious question or a prima facie case should not be considered in isolation from the balance of convenience.  The apparent strength of the parties' substantive cases will often be an important consideration to be weighed in the balance:  Tidy Tea Ltd v Unilever Australia Ltd (1995) 32 IPR 405 at 416 per Burchett J; Aktiebolaget Hässle v Biochemie Australia Pty Ltd (2003) 57 IPR 1 at [31] per Sackville J; Hexal Australia Pty Ltd v Roche Therapeutics Inc (2005) 66 IPR 325 at [18] per Stone J; and Castlemaine Tooheys [Ltd v South Australia (1986) 161 CLR 148] at 154 per Mason ACJ.

7. It follows that, despite the concession made by Eastern Health, in order to determine the interlocutory application, it is necessary that I evaluate the strength of the prima facie case raised by Ms Burnett.  That exercise is necessarily an exercise which can only be conducted on the basis of the evidence currently before the Court.  That evidence has not been tested and is likely to be substantially supplemented at trial.  The findings here made are made solely for the limited purpose of determining Ms Barnett’s application for interlocutory relief.

8. Ms Burnett relies on two causes of action.  First, she claims that, in breach of the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2012‑2016 (the EA), and thus in contravention of s 50 of the Fair Work Act 2009 (Cth) (FW Act), Eastern Health failed to conduct the investigation into her conduct that led to the termination decision in accordance with the requirements of clause 11.11 of the EA (clause 11.11).  It is not in contest that Eastern Health is bound to observe the requirements of clause 11.11.  That clause needs to be set out in full.  It provides (errors and capitalisation as in original):

   11.11   Discipline

   (a)Where an employer has concerns about the conduct of an employee, or a performance issue that may constitute misconduct, the following procedure is to apply.

   (b)       Investigative procedure

   (i)The employer will advise the employee of the concerns in question and any allegation in writing and conduct a fair investigation having proper regard to procedural fairness and the factors set out below.

   (c)       Important procedural factors at this point in time include:

   (i)The employer must take all reasonable steps to give the employee a reasonable opportunity to answer any concerns or allegations.

   (ii)The reason for any interview is to be explained.

   (iii)The employee is to be provided with any material which forms the basis of the concerns and any allegation against him or her and given a reasonable time to respond.

   (iv)If the employee raises an issue in his or her response to the employers concerns or allegations, that warrants further investigation, the Employer shall take reasonable steps to investigate the matter.

   (v)A reasonable opportunity is to be provided for a support person or representative of the Employee’s choice to attend all interviews or meetings conducted by the employer with the employee..

   (d)       Disciplinary procedure

   (i)If following the investigation, the employer reasonably considers that the employee’s conduct may warrant disciplinary steps being taken, the employer will notify the employee in writing of the basis of its view and any allegation and meet with the employee.

   (e)In considering whether the employee should be disciplined the employer will consider:

   (i)whether there is a valid reason related to the conduct of the employee arising from the investigation justifying the disciplinary process;

   (ii)whether the employee knew or ought to have known that that the conduct was below acceptable standards; and

   (iii)any explanation by the employee relating to conduct

   (f)       Possible outcomes

   Where it is determined that after following the procedures in this clause that disciplinary action is warranted, the employer may take any of the following steps depending on the seriousness of the conduct:

   (i)counsel the employee, with the counselling recorded on the employee’s personnel file;

   (ii)give the employee a first warning, which will be verbal and a record of the warning recorded on the personnel file;

   (iii) give the Employee a second written warning in the event that the Employee has previously been given a first warning within the previous 12 months for that course of conduct ;

   (iv)give the Employee a final written warning in the event that the Employee has previously been given a second written warning within the preceding 18 month period for that course of conduct;

   (v) Terminate the Employee on notice in the case of an employee who repeats a course of conduct for which a final warning was given in the preceding 18 months; or

   (vi)Terminate the Employee without notice where the conduct is serious misconduct (as defined for the purposes of the Fair Work Act) that is wilful and deliberate.

   (vii)In case of misconduct warranting termination, either summarily or on notice, the Employer may issue the Employee with a final warning without following the steps in (i) to ((vi) above.

   (viii) The employer’s decision and a summary of its reasons will be notified to the employee in writing.

   (ix)If after any warning, a period of 12 or 18 months elapses (as relevant) without any further warning being required, all adverse reports relating to the warning must be removed from the Employee’s personnel file.

   (x)A dispute over the clause is to be dealt with in accordance with the Dispute Settling procedure of this Agreement.

9. Ms Burnett also claims that Eastern Health contravened s 340 of the FW Act. In that respect, she claims that by, inter alia, making the termination decision, Eastern Health took “adverse action” against her because she exercised the “workplace right” conferred upon her by s 341 of the FW Act to “make a complaint … in relation to … her employment”. The alleged complaints are the making of “VHIMS” complaints in 2014 and 2015, as outlined below.

10. As I understood the evidence, as a Victorian publicly-funded health service, Eastern Health was subject to the Victorian Health Incident Management Policy of the Department of Health and Human Services.  Under this policy, Eastern Health was required to report clinical incidents using the Victorian Health Incident Management System (VHIMS).  It was alleged, and I do not think it was controversial, that Ms Burnett was obliged, or at least entitled, to record incidents in the VHIMS (VHIMS incidents) where she considered that a clinical risk had been occasioned in the treatment of patients.

    OUTLINE OF FACTS

11. It is only necessary to briefly set out the relevant facts.  Some facts are in dispute, but it has not been necessary (or possible at this stage) for me to resolve disputed facts.

12. On 12 November 2012, Ms Burnett commenced employment with Eastern Health as the NUM.

13. In around May or June 2014, Eastern Health claimed to have received complaints from its staff in relation to Ms Burnett.  On 10 June 2014, Ms Lisa Lynch of Eastern Health wrote to Ms Burnett in relation thereto, setting out allegations (2014 allegations).

14. On or around 21 July 2014 a meeting took place between Ms Burnett, Ms Sandra Oakley of the Australian Nursing and Midwifery Federation (ANMF), Ms Lynch, and Ms Julie Lucid (Human Resources Adviser of Eastern Health).  Dr Dimi Simatos may also have attended.  A further meeting occurred on or around 22 July 2014.

15. The parties differ as to what was the outcome of the July 2014 meetings, but that is immaterial to discuss for present purposes.  On Ms Burnett’s case, it is relevant that, in May 2014, she had lodged VHIMS incidents in relation to Dr Maryanne Lobo and Dr Bill Capell, and that it was complaints from those doctors (perhaps amongst others) that formed at least part of the subject matter of the 2014 allegations.

16. In around August 2015, Ms Burnett lodged two VHIMS incidents.  One of them concerned the conduct of Dr Efrant Harnaen.

17. On 24 August 2015, Ms Burnett attended a meeting with her manager (an Associate Program Director) Ms Janet Horman.  Ms Marnie McKiernan, a Human Resources Adviser from Eastern Health’s human resources department also attended the meeting.  Ms Burnett was told, at this meeting, of complaints made against her that required investigation.  It was foreshadowed that she would receive a letter in relation thereto.  Ms Burnett’s case was that she was thereafter suspended.  Eastern Health said that, instead, Ms Burnett agreed to take paid leave.  It is not necessary to resolve that issue in this application, and it appears to be agreed that, in either case, she was stood down on full pay and has not thereafter attended work to perform her duties.

18. On 26 August 2015, Ms Burnett received a letter dated 25 August 2015 and signed by Ms Horman (Horman letter).  The letter set out in 11 bullet points matters that were identified as “serious issues” that had been “brought to [Ms Horman’s] attention which necessitate a formal investigation be conducted.”  Those bullet points were as follows (errors in original):

    ŸLack of collaboration with medical staff; exclusion of medical staff from the care and treatment decisions of babies; failure to follow medical orders given by medical staff; initiating therapeutic treatments without orders from medical staff

    ŸClinical changes are implemented within the SCN without any consultation with medical staff

    ŸYou have behaved in ways that does not convey respect for your colleagues, a number of the medical staff have reported feeling intimated, belittled and humiliated by your manner and communication style

    ŸOn a number of occasions you have publically criticised staff in front of others

    ŸStaff are extremely fearful of being admonished if they follow medical orders which they know you do not agree with

    ŸYour leadership style is being described as inflexible, inconsistent, autocratic, non-collaborative, unpredictable, bullying and is directly contributing to the development of a negative culture

    ŸPreventing your nursing staff from following doctor's orders to start formulae in the first 48 hours

    ŸConcerns from medical staff that babies are being over-treated with CPAP

    ŸMedical staff feel they cannot use their experience and judgement to make treatment decisions which they know you will disagree with

    ŸYou have created. an environment. where staff feel too scared to express their views in your presence and junior medical staff feel powerless and uncomfortable to work with you to strive for optimal patient care.

    ŸYou have failed to uphold Eastern Health's values

19. Later on 26 August 2015, Ms Burnett contacted Ms Oakley.  Ms Burnett asked Ms Oakley to contact Eastern Health’s human resources department to seek clarification of the matters raised in the Horman letter.

20. On 27 August 2015, Ms Oakley told Ms Burnett that she had contacted Ms McKiernan and asked for clarification, and that she had asked permission for Ms Burnett to enter the Hospital for the purposes of preparing a reply to the allegations.

21. In the morning of 1 September 2015, Ms Burnett attended the Hospital.  It seems to be agreed that Ms Burnett remained at the Hospital for around one hour, and that while there she had access to certain documents relevant to the allegations.  There is a dispute as to whether Ms Burnett left as a consequence of being directed to by Ms McKiernan, or instead left of her own accord.  Ms Burnett, who said that the former was the case, alleges further that she had insufficient time to review documents relevant to preparing a response, including patient medical records, medical and nursing rosters, emails, resuscitation data, and copies of VHIMS incident lodgements.

22. On 7 September 2015, Ms Burnett received a letter of the same date and signed by Ms Rhonda Aanensen, Director of Human Resources & Employee Relations (Aanensen letter).  The Aanensen letter referred to the meeting on 24 August 2015 and the Horman letter, and contained six emboldened headings, under each of which appeared bullet points.  The headings and bullet points set out certain allegations against Ms Burnett.  The six emboldened headings and accompanying bullet points are set out below, but for ease of reference I have numbered the emboldened headings and substituted character identifiers for bullet points (errors in original):

    1Lack of collaboration with medical staff; exclusion of medical staff from the care and treatment decision of babies; failure to follow medical orders given by medical staff; initiating therapeutic treatments without orders from medical staff

    (a)Instructing staff to not give medically ordered formulae to babies on IV Fluids.  Staff have been told not to give formula even when it is ordered; staff just know not to do it – report feeling intimidated and fearful of admonishment.

    (b)       CPAP

    (i)Babies placed on CPAP without Doctor consultation and initiating via a medical order

    (ii)Introduction of CPAP when not clinically required (outside of current guidelines)

    (iii)Refusal to wean babies from CPAP or low flow oxygen as per medical orders

    (iv)Cessation of oxygen therapy without Doctors orders

    (c)You regularly submit VHIMS reports when medical staff undertake treatment that you do not support, such as starting feeding too early or delaying commencing of CPAP

    (d)Medical staff report that you are overly critical of their treatment and care decisions particularly where there is no clinical practice guideline.  They feel unable to use their experience and judgement to make clinical decisions.

    2Clinical changes are implemented within the SCN without any consultation with medical staff

    (a)Both Medical & Nursing staff report frequently criticised for not doing things correctly but are not consulted with or advised of changes e.g. securing of IV's

    (b)Communication is poor and not effective – especially about any changes in practice

    (c)Direct communication though the Junior Doctors to avoid communicating with the Consultants; criticising of Consultants management to the Junior Doctors.

    3You have behaved in ways that do not convey respect for your colleagues; a number of the medical and nursing staff have reported feeling intimated, belittled and humiliated by your manner and communication style.  On a number of occasions you have publically criticised staff in front of others.

    (a)Some staff are “frightened”.  Criticised for not following new procedures before changes are announced

    (b)Incident with a jaundiced baby on 4/5/15 -. You confronted Dr Harnaen in front of a number of other medical staff and accused him of inappropriately discharging a baby.  He felt belittled, undervalued and disrespected.

    (c)You have created an environment where nursing and medical staff feel too scared to express their views in your presence and junior medical staff feel powerless and uncomfortable to work with you to strive for optimal patient care.

    4Nursing staff are extremely fearful of being admonished if they follow medical orders which they know you do not agree with

    (a)Staff conform to your views through intimidation

    (b)Critical feedback not done privately or constructively

    5Your leadership style is being described as inflexible, inconsistent, autocratic, non-collaborative, unpredictable, bullying and is directly contributing to the development of a negative culture

    (a)Your style of management is autocratic, divisive and dictatorial preventing your nursing staff from following doctor's orders.

    (b)Inconsistent and conflicting reactions. Staff report that you have “tunnel vision”.  Staff feel conflicted and caught in the middle on many occasions.

    6You have failed to uphold Eastern Health's values

    (a)You do not Collaborate with Medical & Nursing Staff in the care of the babies in the SCN

    (b)You do not show any Respect to Medical & Nursing if they disagree with you or your decisions

    (c)You do not work as a Team with Medical & Nursing staff SCN the culture is divisive and combative

    (d)You do not demonstrate Integrity when working with the medical staff.

    (e)You lack Accountability in providing a safe and supportive work environment.

1. Later on 7 September 2015, Ms Burnett contacted Ms Oakley and asked Ms Oakley to contact Eastern Health for clarification of the matters set out in the Aanensen letter.

2. Later still on 7 September 2015, Ms Oakley sent the Aanensen letter back to Eastern Health, with tracked comments (Oakley letter).  There were 40 such comments.  In broad terms, the comments requested further information by way of particulars, or the provision of documentation in relation to certain of the matters set out in the Aanensen letter.  For instance, comment SO10, which related to the allegation that Ms Burnett refused to wean babies from CPAP (allegation 1(b)(iii)), said, “When and with which babies?  Needs a copy of relevant VHIMS.  Needs relevant CPG, patient related documentation (care plan, progress notes, respiratory orders).”  In relation to the allegation that Ms Burnett’s communication was poor, comment SO20 said, “provide details of how communication is poor and not effective, and when and with whom.”  Comments SO29, SO30, and SO32, in relation to allegations 3(c), 4(a) and 5(a) respectively, all say, “Too vague to be able to respond to.”  Comments SO36–40, in relation to allegations 5(b) and 6(a)–(d), all say, “[l]acks the specifics to enable a considered response.”  Allegation 6(e) bears an identical comment.

3. On 11 September 2015, Eastern Health emailed a document to Ms Burnett tilted, “Response to the ANMF regarding concerns on performance and behaviours Melissah Burnett” (Response Document).  The document purported to address at least some of the matters raised in the Oakley letter.  None of the material requested in the Oakley letter was provided.

4. At 1:00 pm on 15 September 2015, Ms Burnett attended a meeting with Ms Oakley and (for Eastern Health) Ms Philippa Blencowe (Director of Nursing & Midwifery) and Ms Aanensen (Investigation meeting).  A discussion followed as to the nature of the investigation by Eastern Health.  Ms Burnett orally addressed some of the allegations against her.  There was discussion of the 2014 allegations.  The meeting concluded at around 3:10 pm.

5. On 7 October 2015, Eastern Health sent Ms Burnett a letter of that date and signed by Ms Aanensen (Findings letter).  The letter set out the results of the investigation into certain allegations against Ms Burnett and the findings (findings) in relation to those allegations.  The letter provided as follows (errors in original):

   1.Lack of collaboration with medical staff; exclusion of medical staff from the care and treatment decision of babies; failure to follow medical orders given by medical staff; initiating therapeutic treatments without orders from medical staff.  Instructing staff to not give medically ordered formulae to babies on IV Fluids.  Staff have been told not to give formula even when it is ordered.  “Staff just know not to do it” –  report feeling intimidated and fearful of admonishment.

   Eg. Thomas Twins.  Registrar was advised by nursing staff that the ‘NUM had specifically ordered that twins were not to be given formula feeds, even it if was ordered’.  Formula was ordered and not given, registrar advised staff she would escalate to Associate Program Director Women and Children Box Hill (APD) if Formula was not administered.  Formula administered more than 6 hours after order was given.

   Outcome: Substantiated.  Consultant ordered Formula Feeds for both twins at 13:15, Mother consented to formula feeds, nursing staff did not commence formula feeds until 20:00 and only after registrar advised she would escalate to APD.  Staff interviewed confirm this is a common occurrence.

   2.NCPAP

   Babies placed on NCPAP without Doctor consultation and initiating via a medical order
   Introduction of NCPAP when not clinically required (outside of current guidelines)
   Refusal to wean babies from NCPAP or low flow oxygen as per medical orders
   Cessation of oxygen therapy without Doctors orders

   Eg: 29/6 Baby Wadsworth, 16/7 Baby Chadhaury, 20/7 Baby Goller

   Outcome: Substantiated.· Medical records have been reviewed and all babies were put on NCPAP without medical orders.  All three babies did not meet the criteria as outline in Clinical Practice Guideline (CPG) or the Guideline for the Administration of nasal NCPAP in Victorian non-tertiary level 2 nurseries.

   The high numbers of neonates on NCPAP at Box Hill Hospital was also noted by the Department of Health and Human Services.  A detailed review is underway to ensure that NNCPAP at Eastern Health is being used in accordance with the guidelines.

   The data is still being analysed however our initial findings have identified that in the period January 2015 to April 2015 there were 21 neonates in the SCN at Box Hill Hospital that received NNCPAP.  Of these, only three (3) fulfilled all of the criteria.  These initial results ore very concerning and coupled with the findings above in relation to the three babies named in the complaints that were placed on NNCPAP without a medical order and the statements from staff interviewed by our investigators they are ‘instructed’ by the NUM to place babies on NCPAP even if they do not for fill criteria’.  Melissah you have authorised your staff to work outside their scope of practice.  Nurses initiating this treatment in a NICU may well be within scope of practise (having received appropriate training) but in L 2 nurseries NCPAP is.to be medically ordered.

   3.You regularly submit VHIMS reports when medical staff undertake treatment that you do not support such as starting feeding too early or delaying commencement of NCPAP

   Outcome: – Partially substantiated – Staff interviewed stated that you frequently indicate you will complete a VHIMS when you were not happy with clinical decision.  Managing differences of clinical opinion through an incident management tool rather than face to face discussions, staff meetings and forums has created a culture of blame, fear and conflict.

   4.Clinical changes are implemented within the SCN without any consultation with medical staff.

   Both Medical & Nursing staff report frequently criticised for not doing things correctly but not consulted with or advised of changes e.g.: securing of IV's
   Communication is poor and not effective - especially about any changes in practice

   Outcome: Partially substantiated.  Consultation and communication regarding change was communicated formally to the nursing staff only, communication with the medical staff was through incidental verbal communication only.

   5.You have behaved in ways that do not convey respect for your colleagues; a number of the medical and nursing staff have reported feeling intimated, belittled and humiliated by your manner and communication style.  On a number of occasions you have publically criticised staff in front of others.  You have created an environment where nursing and medical staff feel scared to express their views in your presence and junior medical staff feel powerless and uncomfortable to work with you to strive for optimal patient care.

   Eg: Incident with a jaundiced baby on 4/5/15 – You confronted Dr Harnaen in front of a number of other medical staff and accused him of inappropriately discharging a baby.  He felt belittled, undervalued and disrespected.

   Outcome: Substantiated.  Witnesses confirm the incident occurred as described.

   Eg: Incident with Dr. Kat Franklin on 20th July 2015 where you returned to SCN at 20:30 and you “challenged” her when you disagreed with the Thomas Twins being fed formula in the middle of the Nursery about the consultants order.

   Outcome: Substantiated.  You denied being in the unit at this time.  Access records have been checked and have confirmed you returned to the hospital and the unit at 19:58 and did not leave until 21:44.  Witnesses confirm the incident occurred as described.

   6.Nursing staff report that they are extremely fearful of being admonished if they follow medical orders which they know you do not agree with, Staff conform to your views through intimidation, Critical feedback not done privately or constructively.

   Eg: Formula feeds for the Thomas Twins, nursing staff were following your instructions not to follow medical orders.

   Outcome: Substantiated.  The Thomas twins were not given formula feeds until 6+ hours after it had been ordered by the Consultant due to your instructing them not to.  Two of the nursing staff interviewed report they had experienced. being publicly criticised and admonished, one nursing staff . interviewed reported that whilst she had not directly experienced being bullied she had witnessed you behave like this with other staff and treat staff in a manner that was very intimidating.

   7.Your leadership style is being described as inflexible, inconsistent, autocratic, non-collaborative, unpredictable, bullying and is directly contributing to the development of a negative culture.  Your style of management is autocratic, divisive and dictatorial preventing your nursing staff from following doctor's orders.  Inconsistent and conflicting reactions.  Staff report that you have “tunnel vision”.  Staff feel conflicted and caught in the middle on many occasions.

   Outcome: Substantiated.  Evidence provided by Dr. Kat Franklin, Dr. Efrant Harnaen, and the Nursing staff interviewed demonstrated they had either experienced this behaviour or witnessed the behaviour to others.

   8.You have failed to uphold Eastern Health's values

   You do not Collaborate with Medical & Nursing Staff in the care of the babies in the SCN
   You do not show any Respect to Medical & Nursing if they disagree with you or your decisions
   You do not work as a Team with Medical & nursing staff SCN the culture is divisive and combative

   Outcome: Substantiated.  Following complaints in 2014 you were formally counseled regarding appropriate workplace behaviour/communication, and style/relationship.  You acknowledged that you needed to “improve” your relationships with the broader team and be mindful of collaboration, teamwork and respectful communication.

   However we have received a number of further complaints from three (3} levels of medical staff and the two (2) levels of nursing staff that clearly demonstrate that you have continued to behave in a manner that is not in accordance with the Eastern Health Values and despite the previous counselling there has not been an improvement in your performance.  You have not been able to create an cohesive team rather the issues within the team appear to have worsened.

   The above actions are not consistent with our expectations of a senior nursing leader within Eastern Health.

   Your actions have breached the:

   ŸEastern Health Code of conduct – Values (in particular Respect, Collaboration, Team Work and Integrity) and Courtesy.

   ŸEastern Health Clinical Practice Guideline – Administration of Nasal NCPAP to Neonates with Respiratory Distress in Special Care Nursery.

   ŸEastern Health Workplace Bullying – Prevention and Management Practice Guideline.

6. On 23 October 2015, a “Form F8C—General Protections Application Not Involving Dismissal” was lodged on Ms Burnett’s behalf in the Fair Work Commission, and was served on Eastern Health.

7. On 26 October 2015, Eastern Health’s solicitors emailed Ms Burnett’s solicitors attaching a notice of acting in relation to the FWC proceedings and a “Form F8A—Response to general protections application”.

8. Also on 26 October 2015, Eastern Health’s solicitors emailed Ms Burnett’s solicitors asking that “any further response to the findings of [Eastern Health’s] investigation” be made by 27 October 2015, as had evidently been earlier discussed.

9. On 27 October 2015, Ms Burnett’s solicitors emailed to Eastern Health’s solicitors a letter dated 27 October 2015 alleging breach of clause 11.11 of the EA (27 October letter).  The letter contained, amongst others, these paragraphs:

   3.        Our client's response is provided under cover of objection.

   4.You client [sic] has not given our client a reasonable opportunity to respond to its allegations and findings because these have not been sufficiently particularised.

   5.Your client did not provide our client with materials relating to the allegations and findings - such as dates and times of alleged incidents, copies of complaints, copies of witness statements, medical records, shift rosters and email files.

10. Attached to the same email that attached the 27 October letter was a “statement of response” by Ms Burnett in relation to the Findings letter (Response to Findings).  In paragraphs 6–8 of her Response to Findings, Ms Burnett said that the allegations were not sufficiently particularised, that in consequence she had not had a reasonable opportunity to respond, and that her responses had not been adequately considered.  In paragraph 9 she complained that she had not been given materials that formed the basis of allegations against her, including copies of complaints, statements from other staff, medical records, and access records.  Similar complaints were made in paragraphs 11–12.

11. Ms Burnett went on to respond to the allegations and the findings set out in the Findings letter.  It is not necessary for the purposes of this application to go into the substance of every response.  It suffices to say that Ms Burnett substantially denied the allegations against her, often indicated that she was unable to respond properly because of a want of particularity in the allegations, and in some cases gave explanations that, as she saw it, provided good and sufficient justification for particular instances of conduct the subject of allegations.  In all, her Response to Findings statement comprised 57 paragraphs over 15 pages, plus annexures.

12. In a few cases, Ms Burnett made a blanket denial of a finding, made a complaint that she was unable to properly respond beyond blanket denial because of want of particularity, and then gave a version of events relating to the finding or allegation against her (at least in so far as it had been particularised, and evidently as best as she was able in light of her earlier objections).  That was the approach that she adopted in relation to findings 1 and 2.  In response to finding 3, Ms Burnett recounted her history of, and reasons for, submitting VHIMS incidents.  In relation to finding 4, Ms Burnett denied that clinical changes were implemented without consultation with medical staff, stated that she could not respond to the allegation that she had criticised staff without greater particularity, and provided a response in relation to the issue of securing IVs.  In relation to finding 5, Ms Burnett denied certain of the sub-findings (e.g., that she behaved in a way that conveyed a lack of respect for her colleagues), stated that she was unable to respond to others (e.g., that other staff felt intimidated, bullied, etc.), and responded to certain of the clinical matters raised including those involving Dr Harnaen and Dr Franklin.

13. In response to finding 6, Ms Burnett stated that she was unable to respond specifically to allegations concerning management style and communication, but said that they were inconsistent with a “Feedback Report” relating to her, dated April 2015.  That “Feedback Report” was annexed to her statement.  In relation to finding 7, Ms Burnett stated in relation to some of the sub-findings that she was unable to respond for want of particularity, denied other sub-findings (e.g., that she was an autocratic and divisive manager), and again cited the Feedback Report.  In response to finding 8, Ms Burnett denied all sub-findings, except that she did not respond to the allegation that “SCN the culture is divisive and combative,” as she did not understand what was alleged against her.  She provided fuller responses to the sub-allegations under cover of her broader denial.

14. On 6 November 2015, Ms Burnett’s solicitors wrote to Eastern Health’s solicitors providing a supplementary response to the Findings letter.

15. On 11 November 2015, Ms Aanensen arranged for a letter dated that day and signed by her to be sent to Ms Burnett.  In the letter, Eastern Health advised Ms Burnett that, having considered her responses, Eastern Health continued to be of the view that the findings recorded as substantiated in the Findings letter remained substantiated.  Eastern Health said that the substantiated findings amounted to serious misconduct.  The letter advised Ms Burnett of the termination decision.

    DISCUSSION—SERIOUS ISSUE

16. The evidence before me suggests that there is a strongly arguable case that Eastern Health did not comply with the requirements of clause 11.11.  That clause required that a “fair investigation” be conducted in relation to Eastern Health’s concern about Ms Burnett’s conduct.  The fair investigation required Eastern Health to have “proper regard to procedural fairness” and the factors set out in clause 11.11(c).  Those factors required that “all reasonable steps” be taken by Eastern Health to give Ms Burnett “a reasonable opportunity to answer any concerns or allegations” raised against her.  Eastern Health was also required to provide Ms Burnett with “any material which forms the basis of the concerns and any allegation against … her”.

17. To my mind, it is strongly arguable that, to comply with the requirements of clause 11.11, Eastern Health needed to provide Ms Burnett with sufficient particulars of each allegation raised against her to enable her to understand the allegation so that she could have “a reasonable opportunity to answer” it.  On the evidence before me, it is strongly arguable that that was not done.

18. It is appropriate that my consideration focus upon the Findings letter, which sets out the allegations ultimately relied upon by Eastern Health.  I note, however, that significant changes to the allegations were made as between those made on 25 August 2015 (in the Horman letter), on 7 September 2015 (in the Aanensen letter), and on 7 October 2015 (in the Findings letter).  That would likely have generated some confusion.  In the main, the allegations in the Findings letter were broadly stated (e.g., “Lack of collaboration with medical staff”; “You have behaved in ways that do not convey respect for your colleagues”; “Your leadership style is being described as inflexible, inconsistent, autocratic, non-collaborative, unpredictable, bullying …”).  To some extent the generalised nature of the allegations is alleviated by the context in which they are found, but, in the main, the allegations lack any or any sufficient particularisation.  It is sufficient to make that point by reference to finding 1, which contains very serious allegations and arguably the most serious of the allegations made against Ms Burnett.

19. It is not clear whether all the allegations made in finding 1 are dealing with the administration of formula feeds to babies.  For instance, it is somewhat ambiguous whether the allegations of “[l]ack of collaboration with medical staff,” “exclusion of medical staff from the care and treatment decision[s] of babies,” “failure to follow medical orders given by medical staff,” or “initiating therapeutic treatments without orders from medical staff” are intended to relate to that subject matter, as the remainder of finding 1 seems to.  Assuming that they do so relate, there are no particulars given of each instance of a lack of collaboration, exclusion, failure to follow orders, or unauthorised initiation of therapeutic treatment.

20. Finding 1 then contains the very serious, and somewhat more specific, allegation that Ms Burnett instructed staff not to “give medically ordered formulae to babies on IV [f]luids”. That allegation seems to be repeated in the comment that “Staff have been told not to give formula even when it is ordered”.  But when and to whom such instructions were given by Ms Burnett is not identified.  There is some detail given in relation to the “Thomas Twins”.  But the concern about that occasion is given as an example only.  Counsel for Eastern Health suggested that finding 1 was intended to be confined to Ms Burnett’s conduct in relation to the Thomas Twins.  However, that construction seems inconsistent with the language utilised in finding 1, including the specific observation that “Staff interviewed confirm this is a common occurrence”.  Further, in her affidavit, Ms Aanensen referred to finding 1 and said that it was based on various employees in the SCN confirming that “the administering of formula feeds by Doctors are regularly disobeyed at the direction of [Ms Burnett]”.

1. It is strongly arguable that, in relation to each occasion relied upon by Eastern Health in which it alleges that Ms Burnett instructed her staff to disobey the orders of doctors, it was necessary for Eastern Health to have identified to Ms Burnett when such instruction was given, to whom it was given, and the circumstances in which it was given.  Without detail of that kind, it is strongly arguable that Ms Burnett was denied a “reasonable opportunity to answer” the allegations made against her.

2. It is also clear from Ms Aanensen’s affidavit that the allegations made against Ms Burnett are based on information obtained from a large number of doctors and nursing staff.  Finding 1 is said to be based upon “numerous other Doctors and nursing staff”; finding 2 is based on “information obtained from numerous witnesses and medical records”; finding 5 on “information provided by Dr Harnaen and Dr Franklin and several other witnesses”. 

3. Whilst Eastern Health was prepared to identify two doctors, it has not been prepared to identify any other staff whose concerns about Ms Burnett’s conduct have been relied upon.  No reason was given by Ms Aanensen as to why Ms Burnett was not informed of the identity of her accusers and the specific accusations made by them.  Counsel for Eastern Health suggested that may have been done for fear that Ms Burnett would intimidate the staff involved, but there was no evidence to support the suggestion that that was the reason for failure to provide names.  Whilst I accept that it is arguable that clause 11.11 may permit Eastern Health to take into account the interests of other employees in meeting its obligations under the clause, the evidence does not sustain a justification for Eastern Health’s failure to provide that detail, which, it is strongly arguable, a fair investigation with proper regard to procedural fairness and the factors set out in clause 11.11(c) would require.

4. Ms Burnett also complained that clause 11.11(c)(iii) was infringed by Eastern Health’s failure to provide her with “any material which forms the basis of the concerns and any allegations against … her”.  There is a dispute between the parties as to the extent to which Ms Burnett was given the opportunity to access medical records relevant to the allegations made against her.  I need not resolve that dispute.  Even if it is accepted that Ms Burnett was given a full opportunity to access medical records, in the absence of being provided with proper particulars of the allegations made against her, it is strongly arguable that Ms Burnett had no real opportunity to inspect relevant records, or that the ability to inspect was of significantly diminished utility.  For that reason, and because no records were directly provided to her, I also take the view that there is a strong serious issue that MsBurnett was not provided with the materials which formed the basis of allegations made against her.

5. Finally, on this part of the case, I accept Ms Burnett’s contention that it is strongly arguable that the capacity of Eastern Health to terminate her employment is regulated by clause 11.11(f), and that the capacity to take the disciplinary steps there identified is itself dependent upon Eastern Health having followed the procedures required by clause 11.11(b)–(e). If that is so, a termination based upon a flawed investigative process would itself be a contravention of clause 11.11 and, in turn, a contravention of s50 of the FW Act (see, by way of illustration, Gregory v Philip Morris Ltd (1988) 24 IR 397 (Wilcox and Ryan JJ)). Pursuant to s 545 of the FW Act, the Court would be empowered to make appropriate orders including an order awarding compensation and an order for reinstatement.

6. Given my satisfaction as to the strength of the serious question raised by Ms Burnett’s claim under clause 11.11, it is not necessary that I assess the strength of the serious question raised by Ms Burnett’s s 340 claim.

   DISCUSSION—BALANCE OF CONVENIENCE

7. In relation to the balance of convenience, Eastern Health’s resistance to an order restraining the termination of Ms Burnett’s employment was largely based upon concerns flowing from the prospect that Ms Burnett would resume her duties.  Those concerns are not relevant given that no order is sought that would require Eastern Health to permit Ms Burnett to resume her duties. 

8. I accept Ms Aanensen’s observation that Eastern Health needs to be able to make a staffing decision in a timely way in relation to the NUM position.  However, the uncertainty that confronts Eastern Health on that issue will not be ameliorated by the refusal of the order sought by Ms Burnett.

9. I accept also that if Ms Burnett is to remain on paid leave, Eastern Health will need to meet her salary and also that of the employee that will act in the NUM position.  However, despite the opportunity given to Eastern Health to put evidence before me of any resultant financial prejudice, no such evidence was forthcoming. 

10. Ms Burnett has given an undertaking as to damages (undertaking).  Her capacity to borrow funds, as well as her commitment to do so, to meet any order made consequent upon the undertaking has been confirmed by affidavit.  In the circumstances, there is no basis for concluding that an interlocutory order maintaining the status quo would inflict any financial or other prejudice upon Eastern Health that could not be made good pursuant to the undertaking.

11. The financial prejudice to Ms Burnett, if an order were not made, would be slight.  I accept that, in the absence of Ms Burnett’s take-home pay (of approximately $2,963 per fortnight) there would be a very substantial prejudicial impact upon the capacity of Ms Burnett and her husband to meet their ordinary household expenses, even if non-essential spending was curtailed.  However, Ms Burnett does have the capacity to borrow funds, and I consider that that would ameliorate the prejudice.  In other words, damages would be a substantially-adequate, if not completely-adequate, remedy in so far as Ms Burnett’s prospective financial prejudice is concerned.

12. Ms Burnett also relied upon the reputational damage that would be caused if the termination decision was put into effect.  I accept that Ms Burnett occupies a senior position in a specialised and limited field of employment.  I infer that damage to her reputation by reason of being dismissed for serious misconduct would likely be a substantial impediment to her future employment and career prospects.  Reputational damage is unlikely to be fully addressed by an award of damages should Ms Burnett succeed.  But, if the termination decision is effectuated and Ms Burnett does succeed at trial, her reputation may be largely restored.  The extent to which the maintenance of the status quo would result in less prejudice to Ms Burnett’s reputation is not clear, and, to my mind, is not a powerful consideration.  I accept, however, that at least in so far as any ultimate victory for Ms Burnett may not fully restore the reputational damage caused by the termination decision being effectuated, the maintenance of the status quo will likely avoid some prejudice to Ms Burnett. 

    CONCLUSION

13. The balance of convenience slightly favours the making of interlocutory orders in Ms Burnett’s favour.  The maintenance of the status quo is strongly supported by the strength of Ms Burnett’s prima facie case that a flawed investigation of her conduct was in breach of clause 11.11 of the EA and has infected the termination decision made by Eastern Health.  I am satisfied that an interlocutory injunction should be made restraining Eastern Health from giving effect to the termination decision.  The grant of the wider relief sought by Ms Burnett, to the effect that no disciplinary action whatsoever be taken against her pending trial, is not justified.  What is justified is that, pending trial, no disciplinary action be taken against Ms Burnett that is based upon the investigation referred to and the findings recorded in the Findings letter.  I will make a further order to that effect.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.

Associate:

Dated:        17 November 2015