Carolyn Mcdonald v Nursing and Midwifery Health Program, Victoria Ltd

[2024] FWC 3253

[2024] FWC 3253

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Carolyn Mcdonald
v

Nursing And Midwifery Health Program, Victoria Ltd

(U2024/5829)

DEPUTY PRESIDENT MASSON MELBOURNE, 25 NOVEMBER 2024

Application for an unfair dismissal remedy - termination not harsh, unjust or unreasonable – application dismissed.   

1. On 23 May 2024, Ms Carolyn Mcdonald (the Applicant) made an application to the Fair Work Commission (the Commission) under s 394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging she had been unfairly dismissed from her employment with the Nursing and Midwifery Health Program, Victoria Ltd (NMHPV) (the Respondent) on 2 May 2024.

1. Conciliation of the matter before the Commission was unsuccessful and the matter was then listed for hearing before me on 23 September 2024 to determine the merits of the application. Materials were filed by the Applicant and Respondent in advance of the proceeding in accordance with directions issued by the Commission. After hearing from the parties, I determined to conduct the proceeding as a hearing pursuant to s 399 of the Act.

1. At the hearing, the Applicant gave evidence and was represented by Mr A McKenzie of Counsel pursuant to s 596(2) of the Act. Mr McKenzie called Ms Nicole Gordon to give evidence for the Applicant. The Respondent was represented by Ms S Kelly of Counsel pursuant to s 596(2) of the Act. Ms Kelly called Mr Glen Taylor, who is the Chief Executive Officer of the Respondent, to give evidence.

Background and evidence

Nursing and Midwifery Health Program Victoria

1. Mr Taylor, who was recruited to the role of CEO of the Respondent in November 2008, states that the Respondent was launched in August 2006 in collaboration with the Victorian Nurses Board (since replaced by the Nursing and Midwifery Board of Australia), the Australian Nursing Federation (now the ANMF) and some dedicated nurses. The overarching purpose of the Respondent is to support Victorian nurses and midwifes in managing the challenges that their work and lives present, and the effect this has on their individual health and wellbeing.[1]

1. The Respondent has, according to Mr Taylor, grown significantly since its establishment and now employs a total of eighteen staff to ‘lead the way in the provision of health services to nurses and midwifes in Victoria.’[2] The services provided by the Respondent include the following.

“(a)‘One to one counselling’ for any nurse, midwife and student in Victoria who requests assistance;

(b)‘Recovery Support Group’ for participants with substance issues; 

(c)‘NMHP Champion Training’ forums for nurses, midwives and students to learn about and promote NMHPV within their respective health settings;

(d)‘Health and Wellbeing Promotion’ forums, available to any Victorian health service and their workforce (by request);

(e)‘Tailored Support and Advice’ to employers, including anyone in a health service who has line supervision of a nurse or a midwife; and

(f)‘Tailored Support and Advice’ to educators, including anyone in an education facility who has responsibility for teaching nurse and midwife students.”[3]

1. Mr Taylor provided statistics on the Respondent’s activities over the past 1-2 years. He states that five hundred new participants were provided with one-on-one counselling in the 2023/2024 financial year and that most participants have attended multiple sessions throughout the course of their episode of care. In the 2024/2025 financial year to date, the Respondent has already provided counselling to 110 new participants. Mr Taylor further states that demand for the Respondent’s services steadily increased between 2008 and 2020 but saw a dramatic increase from March 2020 because of the COVID pandemic. Funding of the Respondent which is provided by the Victorian State Government also increased dramatically in that period.[4]

1. The Respondent is governed by a Board of five directors, including the Chair, all of whom are nurses or midwives working in the profession. The CEO reports to the Board. There is a General Operations Manager (GOM) who reports to the CEO and all the Clinicians report to the GOM. There are currently 13 Clinicians, including 9 Nurse/Midwife Counsellors, 4 Child Protection Health Program staff, two administrative staff (including an Intake Worker) and a Quality Coordinator.[5]

Applicant’s role

1. The Applicant, who is a registered nurse, commenced employment with the Respondent on 20 April 2009 as a Senior Clinician in which position she has remained throughout her employment, and was in fact the second Senior Clinician employed by the Respondent. She states that her role requires her to support and counsel nurses and midwives experiencing stress and distress which she states may be in the context of domestic violence issues, ill health or mental health issues. The Applicant further states that at the time of her dismissal, she was managing a case load of 60-70 participants, that she found the work challenging and that she was often dealing with participants expressing suicidal thoughts and/or were experiencing deeply distressing circumstances. The Applicant also states that in addition to her participant case load she was also engaged in administrative support, facilitating forums and stakeholder management.[6]

1. The December 2021 Position Description[7] (the PD) for the Senior Clinician role sets out the Position overview as follows;

“Position overview

NMHPV is an independent support service for nurses, midwives and students of nursing &midwifery experiencing health concerns relating to their substance use, mental health and family violence concerns. It is a service discretely delivered by experienced registered nurses and registered midwives.

The position operates within a case management model and involves individual assessment, care planning and the provision of tailored individual support. It includes referral, ongoing review and aftercare planning for nurses, midwives and students of nursing & midwifery who have the above health concerns.

In addition to providing a range of case management functions, the position requires participation in promotional activities and management of data collection and preparation of relevant reports used to inform the field.

The position requires workplace flexibility. This includes a requirement to work primarily from the organisation’s Cremorne office and to visit regional locations, as negotiated with the CEO. The Senior Clinician will have access to a vehicle during work hours if required. There is scope to work from home, for some of the week, as negotiated with the CEO, and occasional after-hours work may be required, as negotiated with the CEO.”

1. The PD then goes on to particularise the specific duties of the role as follows;

“ …

•      Care provision and coordination of support to NMHPV participants.

•      Primary monitoring of NMHPV participants when appropriate. This involves interviews with program participants at regular intervals to negotiate treatment plans, assess health status and monitor progress, clinical report writing, and case conferencing as required.

•      Facilitation of support and education groups for participants.

•     Regular clinical review of participant progress with the team.

•      Ensuring clear, accurate and updated documentation is maintained in participant files.

•      In conjunction with other NMHPV staff, provide ongoing promotion and presentation activities in public settings, about the program and health related information, to relevant stakeholder groups.

•      Developing, preparing and delivering ‘NMHP Champion Training.’

•      Developing and maintaining effective working relationships and collaborative networks with relevant service providers and groups such as health care organisations, industry leaders, associations, groups and peak bodies, and AHPRA.

•      Ongoing review with CEO of this position description as the position evolves.”

1. Relevantly the PD also sets out the Key Performance Areas as follows;

“…

•      The development, delivery and coordination of an effective case management service for this group of professionals.

•      Establishment of collaborative pathways with key stakeholders, including formulation of work practice agreements for NMHPV policy

•      Formulation of required reports.

•      Participation in the development and review of operational policies and procedures for the NMHPV.

•      Attendance and participation in appropriate program and organisational development initiatives.

•      Development and facilitation of support groups, including ‘NMHP Champion Training,’ for NMHPV participants and stakeholders as required.”

1. When questioned on her role, the Applicant confirmed that the purpose of the program was to support nurses and assist their well-being. She agreed that confidentiality was essential, that it was necessary to build trust with clients and keep client information confidential and secure. She also agreed that clients often presented to counselling with complex and challenging health and personal circumstances including domestic violence and substance abuse issues. She also agreed that continuity of care was important and that while a client would normally be referred to and remain under the care of a particular Clinician for the duration of their episode of care, there were circumstances in which the client might pass to another Clinician such as when a Clinician was on leave or left the organisation. Mr Taylor confirmed that in the Applicant’s 15 years of service, there had been no prior performance issues.

Case management and record keeping systems

1. Mr Taylor states that each Clinician is required to use an electronic calendar (in Outlook) using the Microsoft Office software system for the purpose of scheduling clinical appointments.[8] The Outlook calendar, which can be accessed and amended by the Clinician, can also be amended by the Intake Worker who has access to and ‘writing rights’ to enable insertion and amendment of appointments. When a participant makes their first contact with the Respondent and requires an appointment with a Clinician, the Intake Worker makes that first appointment in the relevant Clinician’s calendar. Subsequent appointments of participants are almost always made by the treating Clinician and are generally made by the Clinician at the end of each session with a participant. Appointments with participants can be conducted by Microsoft Teams, by telephone, or in person depending on the location and preference of the participant.[9]

1. Mr Taylor also states that for each appointment with a new participant, the Clinician is assigned one hour for the appointment and an additional one hour to complete their clinical notes. For subsequent appointments, the Clinician is assigned a one-hour appointment with the participant and a further thirty minutes to prepare the clinical notes. He states that these periods of time are separately recorded in the Clinician’s Outlook calendar.[10] Clinical note taking guidance for Clinicians is provided by the ‘NMHPV Clinical Note Taking Guide (the Note Taking Guide).’[11] Relevantly, the Note Taking Guide identifies what should be recorded for each episode of care as follows.

“…

•      Names:

•      Date:

•      Location (or platform):

•      The progress of the participant since the last session: It’s essential to gain an impression of the participant’s current state before beginning the session.

•      Observations about the participant: list anything they notice about the participant (MSE), for example, that they look tired or dishevelled or, in contrast, rested, well-groomed and confident.

•     Review their risk status: Assess whether the participant, or anyone associated with the participant, is at any risk. If risk exists this must be recorded, including any actions which resulted.

•      Review of any action items: If the participant was expected to practice any skills or perform any actions, this is discussed.

•      A brief description of the session: This serves as a general outline of what is discussed.

•      The main issue of the session: describe the main matter the participant is experiencing.

•      Substance abuse: This can be a simple “yes” or “no” answer.

•      Danger: If the participant is experiencing suicidal or homicidal ideation, list it here.

•      Homework: If action items are assigned for the participant to complete, note them here.

•      Need for additional insights: If the clinician needs to follow up with their supervisor, make a note of it.

•      Next appointment: The date the participant will come in for the next session is agreed upon.”

1. Mr Taylor further states that the Respondent’s policies require that participant notes be written immediately after the participant appointment and recorded in the electronic Case Management System (CMS), and that all Clinicians are required to follow the workflow outlined in the policies, which includes making contemporaneous notes of every appointment.[12] The Clinician Workflow Guide (the Workflow Guide) relevantly states ‘Clinicians should allocate themselves 30 minutes on average for note taking and follow up actions, with established participants, and record that in their calendar.’[13] Mr Taylor explained the importance of making contemporaneous notes on participant sessions in CMS is that it ensures a record of the participant’s condition and treatment is easily accessible in the event another employee is required to assist the participant. Mr Taylor goes on to state that he considers the maintenance of contemporaneous participant notes in CMS as one of the most critical tasks of Clinicians.[14]

1. When cross-examined on her process for recording case notes in CMS, the Applicant confirmed that immediately following a client session she would use the iPhone app called ‘Notes’ to voice record her notes which were then stored on her phone using talk to text dictation. She would then copy/paste the notes into an email which she would send to herself using her work email address. She would then copy/paste the text of the notes in the email into the CMS system then delete the email.

1. When cross-examined on the policies to which he referred, Mr Taylor was unable to identify where it was stated in the policies that clinical note recording in CMS must be done immediately following an appointment. Nor was he sure whether any policy specifically precluded the note taking process used by the Applicant and as described immediately above.

1. According to Mr Taylor, full-time Clinicians are required to work 38 hours per week, and as earlier stated are required to use their Outlook calendars to account for their time. Consistent with the Workflow Guide,[15] Clinicians are encouraged by Mr Taylor to record their lunch breaks in their calendar and schedule thirty minutes of administrative time each morning and identify it as ‘admin.’ Allocation of these times allows Clinicians to see a maximum of four clients per day, as set out in the Workflow Guide[16] which equates to six hours of time. With the thirty minutes of ‘admin’ time in the morning, this equates to 6.5 hours per day of Clinician’s time each day. Where clients cancel appointments, Clinicians are required to notify the Intake Worker that they are available to take calls or otherwise assist.[17]

1. As referred to above, the Respondent operates CMS. This was introduced in 2021 when the Respondent decided to move away from a paper-based system. CMS was developed in consultation with InfoXchange, its introduction included extensive staff consultation, trials, testing and troubleshooting during its roll out in the second half of 2021. Clinicians and the Intake Workers use it, with Clinicians required to use CMS for the purpose of storing client notes. A manual to support use of CMS by Clinicians titled ‘NMHPV Customer Management System Operational Manual – Clinician’ (the CMS Manual) was developed for use by Clinicians[18].

1. The Applicant states that the CMS was introduced in about October 2022 to overcome the paper-based management of patient files. She says there were teething problems implementing the system, one of which problems was that while uploading notes to CMS, the system would time out, which she says meant that case notes were lost. She states this is the reason she maintained a more secure process detailed in [16]. The Applicant further states that she raised the issue of CMS ‘timing out’ in a meeting on 23 November 2023, which the CEO attended.[19] Ms Gordon who was employed by the Respondent as an Administration Co-ordinator gave evidence that the ‘workaround’ used by the Applicant was ‘openly shared’ by staff at formal NMHPV meetings and ‘received management support’.[20]

1. The Applicant was cross-examined on her method of recording case notes in CMS and variously agreed that; the counselling session notes taken by the Clinician were private and confidential and included sensitive health information, that the notes recorded important client care matters including follow-up action to be taken and referrals, that security of personal information of clients was critical and that the timely recording of counselling session notes in CMS was important both from an accuracy and continuity of care perspective. She  conceded that  a failure to maintain accurate up-to-date notes in CMS could lead to a loss of client confidence in the service provided by the Respondent.

1. The Applicant was questioned on when she advised or sought permission from Mr Taylor to use the voice recording app for recording client case file notes. She responded that it was prior to November 2023 although her show cause letter response to question on 30 April 2024 was to the effect that it was in November 2023.[21] When pressed during cross-examination on the apparent inconsistency in her evidence, the Applicant agreed that her best evidence on the date on which the use of the voice recording app was first raised was November 2023. She rejected the proposition put to her that she had in fact not raised it with Mr Taylor, conceded that she had not put it (use of the voice recording app for recording client case notes) in writing to Mr Taylor but nonetheless claimed Mr Taylor was very aware of her practice. Mr Taylor rejected during cross-examination that the Applicant had at any point sought approval or advised him that she used the voice recording app in her phone to record her client case notes before transferring those notes to her laptop and then into CMS.

1. Mr Taylor states that in 2022 and 2023, following the roll out of CMS, feedback and opinions were sought from Clinicians on the CMS product including from the Applicant. He further states that no Clinician raised any serious concerns or complaints regarding CMS and all Clinicians were said to have expressed satisfaction with it. Further, Mr Taylor recalls having received specific feedback from three Clinicians to the effect that CMS was the best electronic recording system they had used and that it was simple and easy to use. Mr Taylor also states that the Applicant was one of the Clinicians from whom feedback was sought and she did not raise any concerns as part of the oral feedback process.[22]

1. The Applicant confirmed during cross-examination that a weekly meeting of Clinicians was held on Thursdays to which Mr Taylor attended and that she raised matters as she believed appropriate at these meetings. When questioned on the specific meeting the CMS timeout issue was raised, the Applicant could not recall. The Applicant also agreed that she participated in the process in which feedback was invited in 2022 and 2023 from Clinicians on the roll-out of CMS and agreed that she had attended meetings as part of that process and that she had previously seen the NMHPV Customer Management System Operational Manual – Clinician document referred to by Mr Taylor. She initially responded to questioning that she may have raised the timeout issue during the consultation process but when pressed agreed that she had no direct recollection of raising the issue or providing any feedback on CMS during the review process. The Applicant conceded that the CMS Participant Document Review Report[23] that summarised feedback received during Clinician consultations made no mention of the timing out issue. She also confirmed that she had not raised the issue with IT support because of what she claimed was the time taken by IT to respond to calls for support.

1. Regarding the matter raised by the Applicant, that of CMS ‘timing out,’ Mr Taylor states that he has never been informed of that issue or that it was a barrier to the use of CMS. When pressed during cross-examination, he maintained that the ‘timing out’ issue was never raised by the Applicant. He notes that as an essential security feature, the system will log out a user if user activity is not recorded for a period of time. In these circumstances it is simply a matter of the user logging back in. He further states that he does not recall this issue being raised in the regular weekly meeting he held with Clinicians on Thursday 23 November 2023 as claimed by the Applicant. Nor he says was there any record of the Applicant having sought tech support from the Respondent’s external contractor (InfoXchange) at any time during business hours to assist with any CMS related matters.[24] Mr Taylor also drew attention to Appendix 1 of the CMS Manual which captured feedback from Clinicians on the use of CMS provided in August 2023 and highlighted that concerns of CMS ‘timing out’ had not been raised.[25]

1. Mr Taylor was further cross-examined on CMS and IT and gave the following evidence;

• Prior to the introduction of CMS, the Respondent used a paper-based system of client records;

• Migration from a paper-based system was completed but he could not recall exactly when this occurred;

• During the migration, SharePoint was used to hold scanned files before loading into CMS;

• He accepted that during the transition to CMS, there would have been many client records that were not in the system during migration across to CMS; and

• Clinicians used their work phones for communicating and their company laptops were password protected.

Applicant’s complaints

1. Mr Taylor states that every 3-4 years, the Respondent’s strategic plan is reviewed and that in doing so the Board normally engages an external consultant to assist and facilitate this. This process was initiated in 2023 for the 2024-2026 Strategic Plan and Cath Smith from a firm called ‘ChangeSmith’ was engaged by the Board. The first part of the process involved Ms Smith undertaking formal interviews with approximately fifteen stakeholder groups, which included the Respondent’s funding body (the Victorian Department of Health), referrers (employers/managers/Health and Community Service Union (HACSU)), the ANMF, former service users and the Respondent’s staff. Mr Taylor sent an email to all staff on 10 October 2023 about the strategic review and the role of Ms Smith.[26]

1. The Applicant states that Clinicians subsequently met as a group with Ms Smith but were reluctant to engage with her for fear of reprisal from Mr Taylor, so given the expressed confidentiality the Applicant provided Ms Smith with a letter detailing her concerns (the Letter of Concerns) pertinent to her employment with the Respondent. For reasons of stated transparency, the Applicant also copied in the Chair of the Board, Ms Kath Riddell.[27] Following the provision of the Letter of Concerns to Ms Riddell the Applicant received an email from Ms Riddell on 18 November 2024[28] (the 18 November Email) which the Applicant described as accusing her of breaching confidentiality of the Respondent and Mr Taylor. The 18 November Email from Ms Riddell to the Applicant relevantly stated as follows;

“…

I have read your letter carefully and I am very concerned about the content.

You have raised a number of issues directed to the CEO, some of which I know to be outside of his control.

I am also very shocked and concerned that you have chosen to send this information to an external consultant, breaching both the confidentiality of NMHPV and Glenn.

The content of the letter is a list of personal grievances, not relevant to a strategic planning agenda.

Can you please advise me what you are now seeking in order to resolve the issues and rebuild your relationship with Glenn.

It is not clear from your letter.

Thank you,”

1. Mr Taylor states that on his return from a period of leave on 20 November 2023, he met Ms Riddell during which Ms Riddell informed him about the Applicant’s Letter of Concerns. Ms Riddell advised Mr Taylor that the Board had reviewed the correspondence, formed the view that it contained serious allegations, had determined that it (the Board) needed to treat the Applicant’s correspondence as a complaint and that an external independent investigator would be engaged to investigate the complaint. Mr Brett Pomroy of Salt Legal was later engaged by the Board of the Respondent. Mr Taylor, who was interviewed by Mr Pomroy in December 2023, states that he was not involved in the decision to treat the Applicant’s Letter of Concerns as a complaint and was not involved in the investigation other than by participating in an interview.[29] 

1. The Applicant states that on 30 November 2023, she received an email[30] from Ms Riddell in which she was advised that the Board had determined it was appropriate to conduct an investigation into the matters raised in the Applicant’s Letter of Concerns. She states she found this development very distressing as Mr Pomroy advised her that she needed to formalise the complaints in writing in a structure that could be adequately investigated by him. A letter from Salt Legal was provided to the Applicant on 8 December 2024[31]  which included draft allegations and invited changes or questions from the Applicant. The draft allegations set out by Mr Pomroy on which he sought further information from the Applicant may be summarised as follows;

1.The Applicant’s safety was compromised by failures in communication resulting in trust and transparency concerns.;

2.The Nursing and Midwifery Health Program Victoria policies and procedures were not followed, developed appropriately or completed;

3.Nursing and Midwifery Health Program Victoria staff have no Safe pathway to express concerns with leadership decisions and directions;

4.The Nursing and Midwifery Health Program Victoria lacks opportunities and/or has barriers put in place preventing development and progression of staff; and

5.Nursing and Midwifery Health Program Victoria values were not being practiced by the Leadership Team.[32]

1. The Applicant further states that after coaching by and receiving various correspondence from Mr Pomroy,[33] she sent a final draft of the allegations to Salt Legal on 9 January 2024. She received correspondence later that day from Salt Legal requesting her permission to commence the investigation on 10 January 2024 but states that she did not respond to that correspondence.[34] The Applicant says that the process described above and other matters wore her down, including that she had a busy case load at the time, it was approaching the Christmas break, she was receiving her own counselling and the extra burden of turning her Letter of Concerns into allegations. She estimates the latter activity required her to spend up to 30 hours per week, often outside work time to facilitate Mr Pomroy’s request.[35] 

1. When cross-examined on her Letter of Concerns the Applicant rejected that the document was largely comprised of her personal grievances against Mr Taylor but agreed that it included some concerns about Mr Taylor’s behaviours, that some of the issues raised related to her personally and that some of the issues raised did not bear upon the corporate strategy of the Respondent which was the focus of the external review. When pressed, she agreed that she had at that time lost trust and faith in the leadership of the Respondent, that there was an absence of respectful honest communication from senior management and that management was manipulative and deceptive. She confirmed that she continues to hold those views about management of the Respondent

Allegations of misconduct against Applicant

1. Mr Talor states that on or about 4 January 2024 he was contacted by Ms Riddell who asked him whether the Applicant could be allocated time during business hours to spend time on the investigation being conducted by Mr Pomroy. Around the same time, he was also informed by the Intake Worker that she wanted to schedule an in-person appointment for a new participant in the Applicant’s calendar on 9 January 2024 but was unable to do so. While the Applicant’s calendar indicated she was free on that day, the Applicant subsequently declined the appointment and blocked out her calendar in the morning and afternoon on that day as a ‘private appointment.’ This led Mr Taylor to access the Applicant’s calendar to see if some of her appointments could be rescheduled.[36]

1. In reviewing the Applicant’s calendar, Mr Taylor identified what he described as concerning matters including an example of multiple appointments booked with one client over four business days for which no CMS notes were recorded. He also identified there was a pattern of past appointments for which no CMS notes were recorded and some calendar entries that made no sense to him, such as entries for focus time or admin time outside the thirty minutes admin time referred to at [18]. Later that day he spoke with Ms Riddell about his concerns and agreed that he would undertake an audit of the Applicant’s calendar and CMS going back three months between 2 October 2023 and 4 January 2024.[37] Mr Taylor further states that his audit revealed the following;

·  Thirteen clients scheduled for sixty-minute appointments for which there were no CMS notes recorded;

·  The above-referred thirteen clients were also booked for thirty-one separate thirty-minute counselling sessions for which there were no CMS notes;

·  There were thirty-eight occasions where the Applicant had made appointments in her diary (including the thirty-one appointments referred to above) either with the client or for the purpose of making ‘notes, which were not supported by CMS notes;

·  On another thirty occasions, the Applicant had made appointments in her calendar for either ‘focus time, admin, cardiac review’ and private appointment;’ and

·  The audit revealed 108.5 hours of the Applicant’s time being unaccounted for.[38]

1. Mr Taylor, when cross-examined, was not sure whether the Respondent had a policy requiring Clinicians to use their Outlook calendar for timekeeping and conceded that there was no policy that prevented Clinicians putting appointments into the diary including admin time or focus time as used by the Applicant.

1. Mr Taylor states he conveyed the above-referred audit information to Ms Riddell on either 5 or 6 January 2024 and was concerned that either some of the calendar appointments were false, the Applicant had not made contemporaneous notes or had not transferred her client notes to CMS in a timely manner. This led Ms Riddell to send a letter via email to the Applicant on 9 January 2024[39] although the letter was dated 8 January 2024 (the 8 January Allegations Letter). The letter set out the background and audit and contained the following allegations;

“…

Allegation 1- 38:

From 2 October 2023 to 4 January 2024, it is alleged that you breached the standards of your employment, including but not limited to, NMHPV values and Code of Conduct (Policy 4.4) and NMBA Code of Conduct (principle 1.2 Lawful behaviour), by scheduling false client appointments, including time allocated to client note taking on the same group of clients, a total of 38 separate occasions. See Attachment 1 for specific details relating to each allegation.

…

Allegation 39-68:

From 5 October 2023 to 4 January 2024, it is alleged that you breached the standards of your employment, including but not limited to, NMHPV values and Code of Conduct (Policy 4.4) and NMBA Code of Conduct (principle 1.2 Lawful behaviour), by scheduling unauthorised appointments on thirty separate occasions. See Attachment 2 for specific details relating to each allegation.

…”

1. The 8 January Allegations Letter requested a response from the Applicant by 29 January 2024 and also offered her the opportunity to provide a response via a meeting, written response or both. The Applicant subsequently advised Mr Taylor on 10 January 2024 by email that she would not be working that day and provided a medical certificate covering her absence from 10 January to 1 February 2024.[40] Mr Taylor also states that following the 8 January Allegations Letter being sent to the Applicant, he noticed when reviewing CMS that the Applicant had retrospectively entered notes into CMS[41] for three clients while on sick leave. This prompted him to suspend the Applicant’s access to CMS from 15 January 2024.[42]

1. The Applicant agreed during cross-examination that after advising the Respondent that she would be taking sick leave on 10 January 2024, she subsequently accessed CMS that day for the purpose of putting outstanding case notes into the system. This included putting in the dates of the relevant appointments but not the dates that the notes were entered into the system. The Applicant also agreed that she entered these notes on 10 January 2024 knowing that an investigation had been initiated into her alleged failures to update CMS in a timely manner with case notes as required. She denied during cross-examination that she had entered the notes in CMS on 10 January 2024 to fix the alleged problem of incomplete case notes prior to completion of the investigation. She agreed however that her updating of notes had the capacity to interfere with the investigation by making it harder to determine the matters subject to investigation. She further agreed that her updating of case notes in CMS after the investigation had commenced had been done without providing advice too or seeking permission from Mr Taylor.

1. Mr Taylor further states that on or about 15 February 2024, he was alerted by an employee of the Respondent, Ms Jodie Campbell, that she and the ‘admin’ team had received an email from the Applicant on 6 February 2024[43] (the 6 February Email) to which was attached a word document of notes on client counselling sessions that the Applicant was seeking be entered into CMS while she was on sick leave. The 6 February 2024 email read as follows:

“Dear Jodie/Admin

I just had a thought due to my extended sick leave that I would forward to you, all notes from CMS for my current active clients.

The notes were on my work computer but I had not had time to copy to CMS due to other
administrative demands over last few months.

You may wish to forward notes to clinicians as you refer clients on in my absence.”

1. The Applicant was cross-examined in relation to the 8 January Allegations Letter and gave the following evidence;

·      In respect of the client identified in Allegation ‘1’;[44] the Applicant agreed that she had not as of 9 January 2024 updated CMS in relation to a 3 October 2023 appointment, and that her failure meant other Clinicians would not have been aware of client progress which could have impacted continuity of care;

·      In respect of the client identified in Allegation ‘2’; the Applicant agreed that she had 19 appointments with this client between 3 October 2023 and 6 January 2024, that the client had high needs, that continuity of care was critical, that the CMS notes recording failure meant other clinicians had no visibility of the particular client’s case history and that this could have had negative implications for the client;

·     In respect of the client identified in Allegation ‘2’ referred to above; the Applicant agreed that client was the subject of the redacted note provided to Ms Campbell on 6 February 2024.[45] She further agreed that the note made by her for the 3 October 2023 counselling appointment would have only taken her 10 minutes and that the time allocated for the appointment was 60 minutes plus 30 minutes for admin;

·     In respect of the client identified in Allegation ‘2’; the Applicant was also taken to Allegations ’18-20’[46] which were in respect of the same client and referred to three separate sessions conducted on 13-15 November 2024. The corresponding notes provided to Ms Campbell on 6 February 2024[47] which dealt with this client and those sessions was scant in detail, which the Applicant agreed were the only notes taken and recorded by her and provided to Ms Campbell to update CMS. The Applicant further stated that she was unsure if more detailed notes of the three sessions were recorded anywhere. She agreed that a failure to maintain appropriate case notes in CMS had imperilled the client and placed the Respondent’s reputation at risk; and

·     In respect of the client identified in Allegation ‘25’;[48] the Applicant agreed that the 27/11/23 note[49] was in respect of that client. She also agreed that the notes disclosed escalating intimate partner violence and that the failure to update CMS in a timely manner would have meant other Clinicians would have been unaware of the escalating violence and presented a risk to client continuity of care and the Respondent’s reputation.

1. The Applicant also conceded that she sent the 6 February Email to Ms Campbell and in doing so had asked her to update the client CMS notes. She accepted that the client notes provided to Ms Campbell contained confidential information, that Ms Campbell was not a Clinician, had no role in treatment of the clients and had no reason to access confidential information on those clients. The Applicant explained that her reason for sending the case notes to Ms Campbell on the day was because Ms Campbell had a role in reallocating the Applicant’s cases to other Clinicians and it would allow the updated case notes to be provided to the relevant Clinician. In sending the notes to Ms Campbell, the Applicant agreed that Ms Campbell would not normally have needed access to confidential information, and she (the Applicant) had not contacted Mr Taylor on the General Manager prior to sending the notes to Ms Campbell. She rejected that her forwarding the notes to Ms Campbell breached client confidentiality.

1. When questioned on her failure to update client case notes in CMS, the Applicant agreed that other Clinicians who may have been allocated her clients in her absence would not have had the benefit of updated and contemporaneous client information. She further agreed that her CMS case note recording failures imperilled client care and confidentiality and the Respondent’s reputation. She also accepted that she had not put some client case notes into CMS from at least as far back as 3 October 2023.

1. On reviewing the case notes attached to the Applicant’s 6 February Email, Mr Taylor says he observed that the Applicant was holding confidential clinical notes outside of CMS, some of which dated back to October 2023, which suggested that the notes in CMS in respect of some clients were significantly out of date. This caused Mr Taylor to be concerned that the Applicant had breached participant privacy, confidentiality and trust and had also jeopardised client care because of out-of-date CMS client notes. Added to the above concerns held by Mr Taylor was that the Applicant appeared to have committed a further breach of client privacy by providing the notes to Ms Campbell who had no reason to have knowledge of the matters discussed in the counselling session.[50] Finally, there was a possibility the Applicant had attempted to disguise the fact that these notes had not been entered into CMS at an earlier time. Mr Taylor also expressed the opinion that the client notes attached to the 6 February Email were not the to normal standard Respondent would see in a clinical sense.[51]

1. Following the Applicant’s return to work in late February 2024, Mr Taylor says he met with the Applicant to receive her response to the allegations on 4 March 2024 during which she provided a written response in a document titled ‘Carolyn McDonald - Response to allegations – 4 March 2024’[52] (Response to Allegations Letter). Her response provided during the meeting was as follows according to Mr Taylor ;

1. On whether the calendar appointments were genuine, the Applicant maintained she had attended each appointment;

(ii)On the absence of CMS notes, the Applicant admitted that she had not recorded the notes correctly or appropriately;

1. As to the blocks of time allocated to matters such as focus time the Applicant responded that these blocks were automatically generated in her Outlook calendar; and

(iv)In respect of the ‘admin’ blocks of time in her calendar, the Applicant advised that she blocked out such times to catch up on administrative tasks.[53]

1. The Applicant, during cross-examination, confirmed the calendar time allocations outlined by Mr Taylor for post counselling session note taking, admin time and lunch breaks. She also agreed that she was aware of the Workflow Guide and the note taking requirements contained within it. She further agreed that contemporaneous note taking was important in her role, and that counselling session notes not immediately recorded may be less accurate. She also gave the following evidence when questioned on specific matters relating to her outlook calendar entries;

• She confirmed that the cardiac appointment referred to at paragraph 24 of her witness statement said to have been attended during her lunch break resulted in her being absent from work for 90 minutes (as opposed to the allocated 30-minute lunch break) for which she did not apply for personal leave;

• When questioned on the focus time blocks that appeared in her calendar, she believed they appeared automatically in her calendar approximately two weeks in advance. She agreed that she could reduce or increase the focus time blocks in her calendar but could not explain why they were of varying lengths. She also agreed that she took no steps to engage with IT support or Mr Taylor to remove the automatic populating of her calendar with the focus time blocks. She rejected however that she allowed the focus time blocks to remain in her calendar to prevent appointments being made;

• When further pressed on the focus time blocks and explaining what she had been doing in these periods of time, the Applicant agreed that the Allegations Letter dated 8 January 2024[54] identified there had been 46 hours of scheduled unauthorised appointments and that these absences remained largely unexplained in her Response to the Allegations[55] correspondence; and

• She also agreed that at a certain point she became aware that Admin were not scheduling appointments during periods that were blocked out for focus time, conceded she could have removed those blocks but chose to leave them in her calendar.

1. Mr Taylor states that in relation to the genuineness of the calendar recorded counselling sessions that were unsupported by CMS notes, he considered contacting the clients to confirm whether they had attended the sessions in question with the Applicant. He decided against this because he felt that such contact might further damage the emotional distress these clients may have been suffering. He also thought that such contact might damage the reputation of the organisation. As to the Applicant’s response on the automatic populating of her calendar with focus time he states he did some research and could find no information on this Outlook feature.[56] When cross-examined on the unaccounted time in the Applicant’s calendar, Mr Taylor accepted that he did not know what the Applicant was doing during those periods and was not in a position to draw conclusions on whether she was working or not.

1. On 12 March 2024, Mr Pomroy sent a further email[57] to the Applicant’s ANMF representative Ms Nicole Allan setting out further questions (the Supplementary Questions) the Respondent was seeking responses from the Applicant on as follows.

1.   We will be asking your client if they have ever scheduled appointments or meetings into their Calander that were never scheduled or existed and if so, why?;

2.   We will be seeking from your client why they failed to update the system with clinical notes in a reasonable time, and why this should not be considered serious misconduct?; and

3.   We will be asking your client if they have breached the confidentiality of this workplace enquiry by sharing relative information with other NMHPV employees. We will be seeking who the employees are that they have shared these details and why.

1. What then followed was various communication between the Applicant, her representative Martin Davis from HACSU, Mr Taylor and Mr Pomroy regarding the Applicant’s unavailability for a further meeting due to medical reasons,[58] her declined request for a period of long service leave[59] and her incapacity to participate and respond to any further questions from the Respondent.[60] On 26 April 2024, Mr Taylor sent the Applicant a letter[61] that advised her that the Respondent had concluded she had engaged in serious misconduct (the Show Cause Letter), and the Respondent proposed to terminate her employment. The Applicant was invited to respond prior to the Respondent making a final decision. She did so via her representative Mr Martin Davis on 30 April 2024[62] (the Show Cause Response). Relevantly, the Applicant provided the following responses (which are italicised) to the Supplementary Questions;

1.Examples of SMS clinical notes, your client explained that these SMS contained supporting evidence of your client's position that she has a process in place for audio recording clinical appointments and SMS them to themselves, your client provided examples of this. We can confirm, the information your client provided does not contain any examples of this occurring. We will be seeking this information from your client. We will be seeking your client to explain the SMS she provided.

Ms McDonald states she has not recorded client/participant sessions. Ms McDonald after seeing the client then dictates her client notes on voice to text on her work phone using notes.

Ms McDonald then copies and pastes from there and email from her work phone to her work email and can access them on her laptop. Ms McDonald then edits and transfers to CMS when able to do so when time permits.

2.We will be seeking from your client the definition of focus time and how it works. Your client informed my client that Jodie was aware of this process and new what focus time was, we can confirm this is not the case. We will be seeking from your client an explanation as to what focus time is, why this is in her calendar on multiple occasions and what she is doing during this time.

Focus time is an automated Outlook occurrence. Ms McDonald does not know how to remove focus time on Outlook. Ms McDonald communicated to admin staff verbally and/or in writing that this could be used for appointments as necessary. As Ms McDonald explained in the meeting of 4/3/24, Ms McDonald often used this time to reschedule and book in participants as clinicians are always in direct contact with the participants.

3.We will be seeking your client to provide a reason why they shared confidential file notes to Jodie Campbell. We will be seeking a response to why your client waited until she was notified that my client was reviewing file notes and why your client felt that sharing this information was appropriate.

Jodie Campbell is an employee of NMHP and her role is admin/triage/intake of clients/participants. The client notes were sent to Jodie so if another clinician was assigned Ms McDonald's clients they would be aware of recent case notes.

4.We will be seeking a response from your client as to the work practice your client has identified of audio recording clinical sessions, making notes from these recordings, SMS them or emailing these notes or uploading these notes at a later date into the system. We will be seeking your client to explain why they believe there to be a process that would allow this, why this would not be considered a breach of privacy and confidential information and why the system in place was not being used.

Ms McDonald states she has not recorded client/participant sessions. Ms McDonald after seeing the client then dictates her client notes on voice to text on her work phone using notes. Ms McDonald then dictates her notes at end of sessions voice to text on her work phone because she often has appointments and meetings back-to-back.

5.We will be asking your client if they have ever scheduled a meeting or appointment in their calendar that never actually occurred? We will be seeking specific responses to this as to what appointments and the reasons why.

As best Ms McDonald can recall not to her knowledge.

6.We will be asking your client if they have ever scheduled appointments or meetings into their Calander that were never scheduled or existed and if so, why?

As best Ms McDonald can recall not to her knowledge.

7.We will be seeking from your client why they failed to update the system with clinical notes in a reasonable time, and why this should not be considered serious misconduct?

Ms McDonald made the CEO Glenn aware of the practice in November 2023 as it was raised verbally in meeting(s) and even quality and safety meetings where after seeing the client then dictates her client notes on voice to text on her work phone using notes.

Ms McDonald then copies and pastes from there and email from her work phone to her work email and can access them on her laptop. Ms McDonald then edit and transfer to the CMS when able to do so and when time permits and was aware of the concerns around workload. Ms McDonald states Glenn was aware of and encouraged all clinicians to organise their diaries blocking out time when they needed.

8.We will be asking your client if they have breached the confidentiality of this workplace enquiry by sharing relative information with other NMHPV employees. We will be seeking who the employees are that they have shared these details and why.

As best Ms McDonald can recall she did not share information about this matter with others.

1. Mr Taylor states he considered the Applicant’s responses noting she had admitted failing to update CMS notes in a timely manner and admitted to keeping participant notes on her computer and work phone. He also states he was not satisfied that the Applicant had actually attended the appointments as per her Outlook calendar, in part due to the notes provided to Jodie Campbell not being to the same quality the Applicant normally produced. Having regard to these matters, Mr Taylor concluded the Applicant engaged in serious misconduct and that termination of employment was appropriate. A letter[63] (Termination Letter) confirming this was sent to the Applicant via her representative on 2 May 2024 and relevantly stated the following;

“…

We confirm that we are writing to you through your representative, the Health and Community Services Union.

We are writing to you regarding your employment with Nursing and Midwifery Health Program Victoria (NMHPV). As you will recall we wrote to you on 26 April 2024, seeking your reasons why your employment should not be terminated. We confirm that you provided a response through your representative on 30 April 2024. We have reviewed your response and considered it prior to making a final decision regarding your employment.

We have formed the opinion that your conduct as set out in our letter to you on 26 April 2024, referring to our previous correspondence to you of 9 January 2024 and 4 March 2024, is that of serious misconduct. We have formed this opinion after considering your representative's response of 30 April 2024 and we have decided to terminate your employment effective immediately.

…”

Has the Applicant been dismissed?

1. A threshold issue to determine is whether the Applicant has been dismissed from her employment. Section 386(1) of the Act provides that the Applicant has been dismissed if:

(a)  the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or

(b)  the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.

1. Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. There was no dispute, and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.

Initial matters

1. Under section 396 of the Act, the Commission is obliged to decide the following matters before considering the merits of the application:

(a)  whether the application was made within the period required in subsection 394(2);

(b)  whether the person was protected from unfair dismissal;

(c)  whether the dismissal was consistent with the Small Business Fair Dismissal Code; and

(d) whether the dismissal was a case of genuine redundancy.

1. Relevant to the determination of the preliminary matters I am satisfied that; 

·     the Applicant was dismissed on 2 May 2024 and filed her unfair dismissal application on 23 May 2024, that latter date being within 21 days of the date of her dismissal; 

·     at the time of the Applicant’s dismissal the Respondent employed approximately 18 employees and is therefore not a small business employer within the meaning of s 23 of the Act;

·     the Applicant commenced employment with the Respondent in May 2009 and at the time of her dismissal had been employed for a period of almost fifteen years, that period being more than the minimum employment period of six months; 

·     the Applicant was employed under the Nurses Award 2020 and was in receipt of an annual salary of $90,914.02 at the time of his dismissal; and 

·     the Applicant was not dismissed due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise. 

1. Having considered each of the initial matters, I am satisfied that the application was made within the required period in subsection 394(2), the Applicant was a person protected from unfair dismissal, the small business fair dismissal code does not apply, and the dismissal was not a genuine redundancy. I am now required to consider the merits of the application.

Was the dismissal harsh, unjust, or unreasonable?

1. Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust, or unreasonable, the Commission must take into account:

(a)  whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b)  whether the person was notified of that reason; and

(c)  whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e)  if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f)  the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g)  the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h)  any other matters that the FWC considers relevant.

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct – s.387(a)?

1. In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[64] and should not be “capricious, fanciful, spiteful or prejudiced.”[65] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it were in the position of the employer.[66]

1. The Respondent contends that there was a valid reason for the Applicant’s dismissal based on three discreet grounds, any one of which it contends would establish a valid reason for dismissal. Those grounds are that firstly, the Applicant engaged in serious misconduct by failing to update CMS with client session records. Secondly, by implementing her ‘workaround’ in recording her case notes, the Applicant did  so without authorisation and placed the security and integrity of client information and continuity of care at risk. Thirdly, the Applicant engaged in serious misconduct by allowing her diary to be blocked out for substantial periods of time which were unauthorised and for which the Applicant cannot account.

1. The Applicant rejects that there was a valid reason for her dismissal. Her response to the contended grounds for her dismissal may be summarised as follows;

• In relation to her failure to immediately update CMS following a client session, she states that the workaround process used and raised by her on a number of occasions was known of and condoned by Mr Taylor;

• The use of additional focus time and admin time in her outlook calendar reflected the heavy administrative burden she was dealing with, was not prohibited by any policy and was time that she did in fact utilise for work. She also argues that the Respondent has failed to rebut her evidence that the time was spent on performing required tasks;

• As regards her conduct being in breach of Respondent policies, no policies were identified that prohibited use of her client note ‘workaround’ process or use of focus time or admin time in her calendar;

• The fact that she had been slow to update CMS notes was never put to her; and

• As regards the contended confidentiality risks of holding client details on her phone and laptop, the allegation goes no further than she held this information on company devices which is not prohibited under any identified policies.

1. Turning to the first ground that the Respondent relies on in claiming there was a valid reason for the Applicant’s dismissal. It is uncontroversial that the Applicant failed to update client records of some clients for at least three months. The Applicant points to the volume and burden of administrative work although beyond the reference to the number of clients she had at the time of her dismissal (between 60-70), she has advanced limited specific evidence to explain her failure to update a significant number of client records. Given the passage of time between some of those unrecorded client sessions and Mr Taylor’s discovery of the Applicant’s CMS records failure, it could not be confidently assumed those records would have been updated within a further reasonable period had the Applicant’s omissions not come to light.

1. The Applicant properly concedes her failure to update CMS records in a timely manner and the potential implications of those failures, which is a matter to which I will return. While acknowledging her delay in updating CMS records, the Applicant appears to argue that her conduct was in any case not in breach of Respondent policies. That argument is misconceived for the reasons that follow.

1. CMS is required to be used by Clinicians, with which requirement the Applicant readily agreed she was aware of. The Applicant’s Position Description reinforces this requirement where one of the specific duties of the clinician role is that of ‘Ensuring clear, accurate and updated documentation is maintained in participant files.’  Turning to the relevant policies and guidelines, the Case Management Policy[67] states that ‘Practitioners are required to follow the workflow as outlined in the NMHPV CMS Manual – Clinician’ with the first obligation being to ‘Document engagement episodes via Case Notes in CMS[68]. The NMHPV Customer Management System Operational Manual – Clinician,[69] with which the Applicant agreed she was also familiar, includes the process to be followed by Clinicians in using CMS for recording case notes following client sessions[70]. Guidance for client session note content is then found in the Note Taking Guide and includes the details set out above at [14].

1. What is apparent from the foregoing is that Clinicians are required to ensure that accurate, timely and substantive notes on client sessions are required to be maintained in CMS. The documentation to which I have referred does not state that the notes must be recorded ‘immediately’ following the client sessions. However, it is clear enough that this should occur given the allocation of 60 minutes of admin time immediately following the initial client session and 30 minutes admin time immediately following each subsequent client session. It is also clear from use of the language ‘Ensuring clear, accurate and updated documentation is maintained in participant files’ that there is an emphasis on the need for the timely updating of client notes in CMS. While some latitude in timely case note updating might be understandable in some circumstances, the argument that a failure to update case notes for at least three months is not inconsistent with policy requirements must be rejected. The Applicant understood her obligations to maintain up to date client files and failed to advance any compelling explanation for her failures to do so beyond the statement that she was too busy. I am satisfied that the Applicant failed to update CMS client notes as she was required to.

1. Turning to the next ground the Respondent relies on in seeking to establish there was a valid reason for the Applicant’s dismissal. This ground relates to the Applicant’s ‘workaround’ in which following a client session the Applicant recorded case notes via her iPhone voice recording app, transferred the recorded note by cutting/pasting it into an email which she then sent to her work email before transferring the notes in the received email into the CMS system at a later point. The Respondent contends that the Applicant did so without authorisation and in doing so placed the security and integrity of client information and continuity of client care at risk. While the Respondent did not seek to challenge the Applicant’s explanation of the process she used, I note that there was no evidence led by way of recorded notes from the Applicant’s iPhone or emails recovered from the Respondent’s system that would confirm that the process described by the Applicant was routinely used by her. Putting that evidentiary deficiency to one side, I am prepared to accept the unchallenged evidence that she used the workaround as described.

1. One key issue in contest is whether the ‘workaround’ was raised by the Applicant, known of, and condoned by Mr Taylor. The Applicant stated in her evidence that she used the ‘workaround’ because of issues with the CMS system timing out which prompted her to maintain using what she felt was a more secure process. The Applicant’s explanation on the reasons for using the ‘workaround’ are undermined however by the following matters. The Applicant conceded that she could not recall raising the timing out issue during consultations over CMS during 2022/2023 which she agreed she participated in. She also accepted that the CMS Participant Document Review Report prepared in 2023 made no mention of the timing out issue. Finally, the Applicant accepted that she had not reported the issue to IT support for assistance. These matters lead me to approach with caution the evidence of the Applicant regarding the timing out issue and her claim that she had raised the ‘workaround’ practice with Mr Taylor.

1. As to the Applicant’s claim she had made Mr Taylor aware of her ‘workaround’ note taking practice, the Applicant stated that she had made him aware of the practice prior to and during November 2023. When pressed during cross-examination, the Applicant agreed that she had never put the issue of her ‘workaround’ in writing to Mr Taylor but maintained that she had raised it on a number of occasions with him. She accepted however that her best evidence was that of her response provided in her Show Cause Response Letter, that being she made Mr Taylor aware of the practice in November 2023. The Applicant also relied on the evidence of Ms Gordon who states that the practice was ‘openly shared’ at formal meetings and received management approval. Curiously, the Respondent did not cross-examine Ms Gordon. However, her evidence does not state when these matters were raised, who was present at the ‘formal meetings’ and who among management approved the practice. Ms Gordon’s evidence does not rise to the level of establishing that Mr Taylor was aware of and/or approved the Applicant’s ‘workaround’ practice. For his part, Mr Taylor flatly rejected that he was either aware of or approved the practice.

1. Having regard to the unchallenged evidence of Ms Gordon, I am prepared to accept that the Applicant may have shared her ‘workaround’ practice with colleagues. However, having regard to the caution with which I approach the Applicant’s evidence on this point, I am not persuaded that she raised the issue of her ‘workaround’ practice with Mr Taylor or that he had condoned or approved the practice. That said, I was not taken to any policy that prohibits the practice. As earlier stated, there was a requirement to update client notes in CMS in a timely manner. Use of the note taking ‘workaround’ by the Applicant does not on its face appear incompatible with that requirement so long as the transfer and recording of the client session notes was undertaken promptly. That was clearly not the case however in the present case.

1. I am satisfied that the Applicant used the ‘workaround’ note taking practice without authorisation. While there may not have been a policy that prevented the use of such a practice, it is necessary for me to consider the consequences that flowed from the practice, those being that it was said by the Respondent to have placed the security and integrity of client information and client continuity of care at risk. 

1. The Respondent claims that the ‘workaround’ process used by the Applicant created confidentiality risks through the creation of several additional client records, those being the voice recorded notes on the Applicant’s phone, the email record sent from her mobile phone and the email record received on her work computer prior to transfer of the client case notes to CMS. It was not suggested that the records were made or kept on devices other than the Applicant’s company mobile phone and work computer, both of which I understand were secured by password. I accept that the additional records created by the Applicant were ill-advised having regard to the required CMS note taking process, that of clinicians recording case notes of each client sessions in CMS such that information held on client files was ‘up-to-date.’ What was not made clear in the evidence was the true nature of the risk of the additional records created on the company phone and computer. I make this comment in circumstances where company devices are routinely used to transfer confidential information in most organisations. It is for that reason that organisations establish appropriate personal electronic device security arrangements to protect the security and confidentiality of information held on those devices. It is noted for completeness on this point that the Respondent’s IT policy (if one exists) was not in evidence.

1. On the material before me I am not satisfied that the Respondent has sufficiently established the confidentiality and security risks of the ‘workaround’ process on which it relies as a valid reason for dismissal. That said, there was no justification for the Applicant to forward confidential client notes to Ms Campbell in the 6 February Email. During cross-examination, the Applicant agreed that Ms Campbell was not a Clinician, had no role in treatment of the clients and had no reason to access confidential information on those clients. The circulation of the client notes by the Applicant to Ms Campbell in the 6 February 2024 was inappropriate, should not have occurred without management approval, and breached the confidentiality of the clients who were referred to in the notes attached to that email.

1. A further potential consequence of the Applicant’s ‘workaround’ note taking process was said by the Respondent to be that of the impact on client continuity of care. In truth, this is not so much a consequence of the ‘workaround’ process itself but of the inordinate delays in the Applicant updating the CMS notes via that practice. The Applicant did not cavil with the Respondent’s contention that the failure to update client notes in a timely manner held the potential to adversely affect both the continuity of client care and the Respondent’s reputation. The potential impact of that failure on the part of the Applicant was brought into relief when she took an extended period of personal leave in early 2024, that being the very circumstance where a colleague may have had to take over a client of the Applicant without the benefit of up-to-date client records.

1. It should be noted at this point that on the Applicant’s own evidence, Clinicians were routinely required to deal with clients confronting challenging and distressing personal circumstances including self-harm, financial difficulties, intimate partner domestic violence, work related trauma and alcohol/substance abuse. The importance of accurate and up to date records in these circumstances need not be overstated. To her credit, the Applicant readily conceded the potential implications of her record keeping failures both in terms of its impact on continuity of client care and on the reputation of the Respondent. It follows that I am satisfied that the Applicant’s failure to update client case file notes in CMS in a timely manner presented an unacceptable risk to client continuity of care and to the reputation of the Respondent.

1. The third ground the Respondent relies on in establishing a valid reason for dismissal is that of the Applicant blocking out her diary for substantial periods of time for which she cannot account. As earlier set out in the evidence, Clinicians are expected to allocate one hour for their sessions with each client  and depending on whether the client session is the first session with a new client or a follow-up session with an existing client, clinicians are allocated 60 mins admin time (for new clients) and 30 mins admin time (for existing clients) immediately following each client session. In addition to the admin time allocated for each client session and 30-minute lunch break periods, a further 30 mins admin time is authorised each morning for Clinicians which allows them to deal with general administrative and other tasks. In addition to these periods of allocated admin time, the Applicant had further periods of time blocked out in her calendar and marked as either admin time or focus time which totalled 46 hours of scheduled unauthorised periods in the 3-month period from October – December 2023 that she was not available to take clients. 

1. The Applicant sought to explain the additional admin time and focus time periods blocked out in her calendar in her 4 March 2024 Response to Allegations correspondence. Beyond the general response of using the time to catch up on administrative tasks, her responses left largely unexplained what each of those periods of time were used for. Some of the periods in December 2023 were claimed by the Applicant in her Response to Allegations letter as having been used to work with Salt Legal on particularising the allegations she had made against Mr Taylor and the Respondent in her Letter of Concerns sent to Ms Riddell in November 2023. This explains some of the blocked-out periods after 8 December 2024 when Mr Pomroy wrote to her advising that the Respondent had decided to initiate an investigation into her complaints. However, it provides no explanation of multiple periods blocked out in October and November 2024. It is also telling that at no stage did the Applicant raise with Management that she had failed to upload her client case file notes into CMS as required and/or seek assistance.

1. I found the Applicant’s general explanation for the additional periods of blocked out admin time and focus time as rather unsatisfactory in circumstances where multiple instances of CMS case file note maintenance failures have been identified. Compounding the unsatisfactory nature of the Applicant’s response to questioning on the use of this additional time, is that of the quality of case notes she ultimately sought to have uploaded to CMS when she provided aged case notes to Ms Campbell on 6 February 2024. While the brevity and poor quality of those notes may be attributable to the administrative burden referred to by the Applicant, there was no other evidence advanced  by the Applicant in support of her claim of a heavy administrative workload beyond referring to the number of clients she had. While there remains a significant question mark hanging over how the Applicant actually made use of the additional blocked out periods of admin time and focus time, the Respondent has not been able to put forward any evidence to demonstrate the Applicant was not working during those periods, beyond pointing to a cardiac appointment for which personal leave was not sought and which extended beyond her lunch break. In all of these circumstances and despite the generalised explanations of the Applicant, I am not satisfied that the Applicant was not undertaking work in the additional periods of time that were blocked out in her calendar for admin time and ‘focus time.’

1. I have found above that the Applicant’s use of a ‘workaround’ to record and then transfer case notes to CMS did not in itself breach Respondent policies. Nor am I satisfied that the temporary storage of case file notes on company electronic devices outside of CMS breached Respondent policies. I have however found that the Applicant failed to update CMS with client case notes so as to ensure that client records were up-to-date, that being a core requirement imposed on Clinicians through the combined effect of the Clinician position description and various policies described above. The Applicant’s failure held the potential to adversely affect client continuity of care and the reputation of the Respondent.

1. The Applicant’s sustained failure to update the CMS client case file notes over a period of at least three months was done so knowingly and in my view deliberately. She could have sought assistance from Management or applied a different approach to the recording of case file notes rather than persist with her ‘workaround’ practice which clearly did not contribute to compliance with CMS case note recording requirements. That is, she could have recorded her case file notes into CMS immediately following client sessions within the allocated 60 minute or 30-minute admin time. That she took neither of these steps reinforces the deliberate nature of the conduct.

1. I am also satisfied that the conduct of failing to update CMS client case notes posed a serious and imminent risk to the safety of clients of the Respondent, many of whom were said to confront a range of distressing personal circumstances. Exposure of the Respondent’s failure to ensure the maintenance of up-to-date client case notes also presented a serious and imminent risk to the reputation of the Respondent. That is in circumstances where the quality of client care continuity and confidentiality of counselling support to clients were acknowledged by both the Respondent and the Applicant as critical to service delivery and client confidence in the services provided by the Respondent.

1. One final point to be made about the Applicant’s conduct is that following the 8 January Allegations Letter, she took personal leave on 10 January 2024, and then took steps while on personal leave to update the CMS client case notes. She accepted that she did so without advising Mr Taylor or seeking approval for her actions which had the potential to interfere with the investigation. This particular action of the Applicant reinforces my conclusion that the Applicant knew her conduct in failing to update some CMS notes for at least three months was contrary to the Respondent’s requirements and presented both client care continuity risk and reputational risk to the Respondent risk.

1. It follows from the forgoing that I am satisfied that the Applicant’s conduct constitutes serious misconduct and establishes a valid reason for her dismissal. This weighs in favour of a finding that the dismissal was not unfair.

Notification of the valid reason – s 387(b)

1. Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,^[71] and in explicit,[72] plain and clear terms.[73]

1. The Applicant was initially notified of allegations against her in the 8 January Allegations Letter. The allegations were essentially that she had; (1) scheduled false appointments in her calendar and; (2) scheduled unauthorised appointments in her calendar. Neither of those allegations have been found to have been sustained such as to establish a valid reason for the Applicant’s dismissal.

1. On 12 March 2024, Mr Pomroy wrote to the Applicant on behalf of the Respondent and put a number of further matters to the Applicant on which it sought responses. That correspondence put the Applicant on notice regarding a number of matters, relevantly including  her failure to update CMS with clinical notes within a reasonable time. As stated above, I am satisfied that failure established a valid reason for the Applicant’s dismissal .

1. On 26 April 2024, the Respondent sent the Show Cause Letter to the Applicant via her representative. The letter referred to earlier correspondence including the 8 January Allegations Letter and Mr Pomroy’s 12 March 2024 correspondence, raised that the Applicant had failed to respond to the latter correspondence and advised that the Respondent had formed the view based on the material before it that all allegations had been sustained. An opportunity was then provided to the Applicant to respond to the Show Cause Letter which she did in the Show Cause Response Letter dated 30 April 2024. Significantly, in that response the Applicant addressed the outstanding questions put to her in Mr Pomroy’s 12 March 2024 correspondence including her alleged failure to update CMS with clinical notes within a reasonable period of time. By responding to that question having been made aware of the Respondent’s preliminary view that all allegations were sustained, it is clear that the Applicant was on notice regarding a valid reason relied on for her dismissal.

1. I accept that the correspondence referred to above was such that the full suite of allegations and findings was not distilled into a single document put to the Applicant for response prior to the Respondent’s consideration of her dismissal. That said, I am satisfied that the Applicant was notified of a valid reason for her dismissal prior to the decision to dismiss her being made. This weighs in favour of a finding that the dismissal was not unfair.

Opportunity to respond to any dismissal reason related to capacity or conduct – s 387(c) 

1. An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[74] The opportunity to respond does not require formality and the factor is to be applied in a common-sense way to ensure the employee is treated fairly.[75] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to the concern, this is enough to satisfy the requirements.[76]

1. The Applicant was sent the 8 January Allegations Letter to which the Applicant was requested to respond by 29 January 2024, which could be done via a meeting, a written response or both. For reasons of the Applicant’s absence on personal leave during January and February 2024 a response was not provided until the 4 March 2024 meeting at which the Applicant also provided a written response in her Response to Allegations Letter dated 4 March 2024. Further correspondence was subsequently sent by Mr Pomroy on behalf of the Respondent to the Applicant on 12 March 2024 which set out further matters on which the Respondent required a response. Following various communication between the Respondent and the Applicant’s representative during March and April 2024, the Show Cause Letter was sent by the Respondent to the Applicant via her representative on 26 April 2024. The Applicant’s representative provided the Applicant’s Show Cause Response Letter on 30 April 2024.

1. It is apparent that the Respondent set out the various allegations to the Applicant and afforded her an opportunity to respond both to the initial allegations and the further matters of concern to the Respondent. It is also apparent from the timeline that the process afforded the Applicant an opportunity to respond, was not rushed and had regard to the Applicant’s capacity to participate in the process. I am satisfied that the Applicant was afforded an opportunity to respond to the to the dismissal reasons related to her conduct. This weighs in favour of a finding that the dismissal was not unfair.

Support person – s 387(d)

1. Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

1. The Applicant along with her support person met with Mr Taylor on 4 March 2024 during which the Applicant provided her initial responses to the allegations. In subsequent communication with the Respondent, the Applicant was represented by Mr Davis of HACSU. On 15 March 2024, Mr Davis advised the Respondent that the Applicant was unfit to participate and respond to any further questions from the Respondent. The Show Cause Letter was sent to Applicant and her representative on 26 April 2024 to which the Show Cause Response was provided by Mr Davis on the Applicant’s behalf on 30 April 2024. The Respondent proceeded to dismiss the Applicant following receipt and consideration of the Show Cause Response. It is apparent that the Applicant was not denied the presence of a support person in any discussions related to her dismissal. This weighs in favour of a finding that the dismissal was not unfair.

Warnings regarding unsatisfactory performance – s 387(e)

1. The dismissal did not relate to unsatisfactory performance. This factor is therefore not relevant in the circumstances.

Impact of the size of the Respondent on procedures followed and impact of absence of dedicated human resources management specialist/expertise on procedures followed – s 387(f)

1. The Respondent’s Form F3 - Employer Response indicates that at the time of the Applicant’s dismissal it employed 18 employees. There is no evidence before me, and nor did either party contend, that the Respondent organisation’s size impacted on the procedures followed by it in dismissing the Applicant. This factor weighs neutrally in my consideration.

Impact of absence of dedicated human resources management specialist/expertise on procedures followed – s 387(g)

1. The evidence in this matter indicates that the Respondent had access to the services of an external workplace relations specialist. This factor weighs neutrally in my consideration.

Other relevant matters – s 387(h)

1. The only matter relied on by the Applicant under this criteria was that of the damage to the Applicant’s health. She also contends that she was forced to take extended sick leave, placed in a difficult financial position and denied long service leave by the Respondent during the period of investigation into the allegations against the Applicant. The difficulty with the Applicant’s submission is that the only medical evidence before me is that of a certificate of capacity dated 20 April 2024 which covers the period between 26 March 2024 and 20 April 2024 stating she was unfit to perform any work in that period. The certificate says nothing about the Applicant’s ongoing medical condition, diagnosis or prognosis. In the absence of contemporaneous medical evidence, I am not persuaded that the Applicant’s medical condition weighs in favour of a finding of unfairness.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust, or unreasonable?

1. I have made findings in relation to each matter specified in s 387 of the Act as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust, or unreasonable.[77]  

1. As set out above, I am satisfied that a valid reason for the Applicant’s dismissal related to her serious misconduct for failing to update CMS client notes is established, and that the dismissal process followed by the Respondent was procedurally fair. The dismissal was not related to the Applicant’s performance and the size and capacity of the Respondent did not impact on the procedures that it followed and as such these matters weigh neutrally in my consideration of whether the dismissal was unfair. I have not identified any other matters that weigh in favour of a finding that the dismissal was unfair. 

1. It follows from the above that having considered each of the matters specified in s 387 of the Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust, or unreasonable because there was a valid reason for the dismissal and the other factors weighing in favour of a finding that the dismissal was not unfair.

Conclusion    

1. Not being satisfied that the dismissal was harsh, unjust, or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of s 385 of the Act.   

1. The application is dismissed. An Order will be separately issued giving effect to my decision.

DEPUTY PRESIDENT

Appearances:

A Mackenzie of Counsel for the Applicant.

S Kelly of Counsel for the Respondent.

Hearing details:

2024.
Melbourne:
September 23.

[1] Exhibit R1, Witness Statement of Glen Taylor, at [4]-[6]

[2] Exhibit R1, at [7]

[3] Exhibit R1, at [8]

[4] Exhibit R1, at [9]-[10]

[5] Exhibit R1, at [11]-[15]

[6] Exhibit A1, Witness Statement of Carolyn McDonald, dated 26 August 2024, at [2]-[6]

[7] Exhibit R1, Annexure GT-2, Position Description Senior Clinician, dated December 2021

[8] Exhibit R1, Annexure GT-3, NMHPV Clinical Workflow Guide, ‘Coordination of Clinical Calendars, at Court Book p.264

[9] Exhibit R1, at [19]-[22]

[10] Exhibit R1, at [23]

[11] Exhibit R1, Annexure GT-3, at Court Book p.261

[12] Exhibit R1, at [24]

[13] Exhibit R1, Annexure GT-3 at Court Book p.266

[14] Exhibit R1, at [24]-[25]

[15] Exhibit R1, Annexure GT-3, at Court Book p.266

[16] Exhibit R1, Annexure GT-3, at Court Book p.265

[17] Exhibit R1, at [25]-[29]

[18] Exhibit R1, Annexure GT-5, ‘NMHPV Customer Management System Operational Manual – Clinician’, Court Book at p.277

[19] Exhibit A1, at [18]-[19]

[20] Exhibit A14, Witness Statement of Nicole Gordon, dated 26 August 2024, at [10]

[21] Exhibit A12, ‘Response to Show Cause Outcome’, dated 30 April 2024, at Court Book p.194

[22] Exhibit R1, at [34]-[35]

[23] Exhibit R1, Annexure GT-5, at Court Book p.311

[24] Exhibit R1, at [35]-[40]

[25] Exhibit R1, Annexure GT-5, CMS Manual Appendix 1, at Court Book p.311

[26] Exhibit R1, at [41]-[44], Annexure GT-6, Strategic Review notification titled ‘Changesmith NMHPV strategic plan for 2024-2026: Stakeholder interview/conversation starter’, Court Book p. 314

[27] Exhibit A1, at [8]-[9], Exhibit A3, Applicant letter re concerns

[28] Exhibit A4, Email dated 18 November 2023 from Kath Riddell to Applicant, titled ‘Confidential’ at Court Book p.125 l

[29] Exhibit R1, at [46]-[49]

[30] Exhibit A4, Email dated 30 November 2024 from Kath Riddell to Applicant, at Court Book p.122

[31] Exhibit A5, Letter from Salt Legal to Applicant, titled ‘Workplace Investigations – Allegations, dated 8 December 2023, at Court Book p.128

[32] Exhibit A6, at Court Book p.134

[33] Exhibit A6, Email chain between Applicant and Brett Pomroy, between 8-19 December 2023, at Court Book p.130

[34] Exhibit A1, at [11]-[14]

[35] Exhibit A1, at [15]

[36] Exhibit R1, at [50]-[52]

[37] Exhibit R1, at [53]-[56]

[38] Exhibit R1, at [57]-[60]

[39] Exhibit R1, Annexure GT-8, Letter to Applicant, dated 8 January 2024, titled ‘Re: Notification of workplace enquiry’, Court Book p.330

[40] Exhibit R1, at [63]

[41] Exhibit R1, Annexure GT-10, CMS Notes, at Court Book pp. 339-344

[42] Exhibit R1, at [64]

[43] Exhibit R1, Annexure GT-11, Email to Jodie Campbell, dated 6 February 2024, titled ‘Participant Notes’, at Court Book p346

[44] Exhibit R1, Annexure GT-8, at Court Book p.333

[45] Exhibit R1, Annexure GT-11 at Court Book p.348

[46] Exhibit R1, Annexure GT-8, at Court Book p.333

[47] Exhibit R1, Annexure GT-11 at Court Book p.350

[48] Exhibit R1, Annexure GT-8, at Court Book p.333

[49] Exhibit R1, Annexure GT-11, at Court Book p354

[50] Exhibit R1, at

[51] Exhibit R1, at [66]-[70]

[52] Exhibit A8 – ‘Response to Allegation Letter’, dated 4 March 2024

[53] Exhibit R1, at [81]-[84]

[54] Exhibit A7, ‘Notification of workplace enquiry’, dated 8 January 2024, at Court Book at p. 135

[55] Exhibit A8, ‘Response to Allegations – 4 March 2024’, at Court Book p.140

[56] Ibid

[57] Exhibit A9, Email from Brett Pomroy to Applicant, dated 12 March 2024, at Court Book p.164

[58] Exhibit R1, Annexure GT-14, Medical certificate, dated 15 March 2024, Court Book p.375

[59] Exhibit R1, Annexure GT-15, Letter dated 23 April 2024, Court Book p.377

[60] Exhibit A10, Email from Martin Davis to Brett Pomroy and Glen Taylor, dated 24 April 2024, Court Book p.168

[61] Exhibit A11, Show Cause Letter, dated  26 April 2024, titled Re: Carolyn McDonald Show Cause action’, Court Book p.189

[62] Exhibit A12, Show Cause Response of Applicant, dated 30 April 2024, Court Book p.192

[63] Exhibit A13, Termination Letter, date 2 May 2024, Court Book p.197

[64] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

[65] Ibid.

[66] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.

[67] Exhibit R1, Annexure GT-4, at Court Book p.272

[68] Ibid

[69] Exhibit R1, Annexure GT-5, at Court Book p.278

[70] Ibid at Court Book p. 298

[71] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

[72] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

[73] Ibid.

[74] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

[75] RMIT v Asher (2010) 194 IR 1, 14-15.

[76] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

[77] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]– [7].

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