Celia O'Keefe v Ramsay Health Care Australia Pty Limited
[2021] FWC 4796
•6 AUGUST 2021
| [2021] FWC 4796 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Celia O’Keefe
v
Ramsay Health Care Australia Pty Limited
(U2021/1346)
DEPUTY PRESIDENT ASBURY | BRISBANE, 6 AUGUST 2021 |
Application for an unfair dismissal remedy – Application for an unfair dismissal remedy – Applicant resigned from her employment – Whether Applicant forced to resign – Applicant not dismissed – Application dismissed.
Overview
[1] Ms Celia O’Keefe (the Applicant) applies under s. 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy. The Applicant was employed by Ramsay Health Care Australia Pty Limited T/A John Flynn Private Hospital (the Respondent) as a Registered Nurse – Perioperative Educator from 1 July 2009 until she resigned from her employment on 28 January 2021. It is not in dispute that the Applicant resigned from her employment. The Applicant contends that she was dismissed within the meaning in s. 386(1)(b) of the FW Act by being forced to resign because of conduct or a course of conduct engaged in by her employer and was thereby unfairly dismissed.
[2] In summary, the Applicant contends that she was bullied by her manager Ms Renae Balcke and that the Respondent’s Chief Executive Officer Mr Adam Stevenson, failed to deal with a complaint the Applicant made about Ms Balcke’s conduct, giving the Applicant no option but to resign. Initially the Applicant sought the remedy of reinstatement and later, compensation. The Respondent objects to the application asserting that the Applicant was not dismissed nor forced to resign from her employment, but rather that the Applicant resigned voluntarily.
[3] Much of the Applicant’s evidence is subjective and is based on perceptions about her treatment. I do not doubt that the Applicant has a strong belief in the righteousness of her position, and I accept that the Applicant is entitled to ventilate that position. I am also conscious that there is some likelihood that the discussion in this Decision of the Applicant’s allegations and evidence, will cause distress to the persons against whom the allegations are made and that persons who gave evidence on behalf of the Applicant may also be distressed by the discussion of their evidence. However, the Applicant advanced her case in a manner which makes it necessary to examine her allegations in some detail.
[4] Other than the course of conduct the Applicant relies on in asserting that she was forced to resign her employment and was dismissed within the meaning in s. 386(1)(b), the Applicant does not contend that her employment was terminated on the employer’s initiative as provided in s. 386(1)(a). For reasons which will become apparent, it is only necessary for me to consider whether the Applicant was dismissed within the meaning in s. s. 386(1)(b) of the FW Act. To determine this point, it is necessary that I consider whether, on an objective analysis of all the circumstances, the conduct or course of conduct alleged by the Applicant to have forced her to resign, was the principal constituting factor leading to the resignation and was intended by the Respondent’s managers to bring the Applicant’s employment to an end or had that probable result, such that the Applicant had no effective or real choice but to resign.
[5] I have not made a finding as to whether the conduct described by the Applicant and attributed to Ms Balcke, is bullying within the meaning in s. 789FD of the FW Act, or bullying simpliciter. It has not been necessary to make such a finding. I am also of the view that even if all the conduct complained of by the Applicant did occur, that conduct, considered objectively, was not conduct of the kind encompassed by s. 386(1)(b) of the FW Act, and the Applicant was not forced to resign. Accordingly, the Applicant was not dismissed and cannot make an application for an unfair dismissal remedy. My reasons for this conclusion are set out below.
Preliminary matters
[6] The application was originally made against Affinity Health Limited T/A Ramsay Healthcare. The Form F3 Response to the application stated that the Applicant’s employer was Ramsay Health Care Australia Pty Ltd T/A John Flynn Private Hospital. When this matter was identified, with the agreement of the parties, permission was granted for the application to be amended so that it was made against the entity which employed the Applicant. Section 396 of the Act requires that four specified matters must be decided before the merits of the application may be considered. There was no contest between the parties regarding these matters, and I find that:
(a) the application was made within the period required by s.394(2);
(b) the Applicant was a person protected from unfair dismissal;
(c) the Respondent was not a “small business employer” as defined in s.23 of the FW Act; and
(d) the dismissal was not a case of genuine redundancy.
[7] Consistent with s. 397 of the Act, I decided to conduct a hearing to determine the matter on the basis that there were disputed issues of fact and I considered this to be the most appropriate means to resolve them. The hearing was held in Brisbane on 10 and 11 May 2021. At the hearing, the Applicant was represented by Ms J Urquhart. Ms Urquhart is a lawyer employed in a corporate capacity but was acting in a private capacity for the Applicant. The Respondent was represented by a paid agent, Mr C Muir of Employer Services Pty Ltd. Permission was granted pursuant to s. 596 of the Act for the parties to be represented by a lawyer and paid agent respectively, on the basis that the matter is complex, I was satisfied that it would be more efficiently dealt with if the parties were represented and no issues of fairness arose.
[8] The Applicant gave evidence on her own behalf at the hearing and provided two witness statements. 1 Statements of evidence were also tendered by the Applicant from the following persons without objection and those persons were not required for cross-examination:
• Ms Louella Cooper, RN and Scrub Scout, at the John Flynn Hospital; 2
• Ms Paula Archer, Nursing Unit Manager of Scrub Scout at the John Flynn Hospital until 5 February 2021; 3
• Mr Richard O’Keefe, the Applicant’s father; 4
• Ms Marilyn Westnidge, Registered Nurse and Workplace Representative within the Respondent’s Perioperative Department; 5 and
• Ms Moira Briggs, Assistant Director of Clinical Services – Perioperative for the Respondent from October 2013 to January 2017. 6
[9] Evidence for the Respondent was given by:
• Ms Renae Balcke, Assistant Director of Clinical Services – Perioperative for the Respondent; 7
• Mr Adam Stevenson, Chief Executive Officer of the Respondent; 8 and
• Ms Denise Hartley, Director of Clinical Services for the Respondent. 9
[10] Prior to the substantive hearing, the Applicant sought orders requiring the production of documents. Orders were made in relation to some of the documents sought. The Applicant also sought orders requiring the attendance of the Human Resources Managers for Ramsay Health Care and the John Flynn Hospital. The orders were issued on the basis that both parties had been granted permission to be represented and the orders contained a note to the effect that the persons required to attend could object and that any objection would be considered. The fact that the orders were issued does not establish a presumption that they cannot be objected to on the usual grounds including relevance or that compliance would be unduly onerous.
[11] The Respondent objected to the attendance of those persons being required. After conducting a hearing to deal with the Respondent’s objection, I upheld that objection. My reasons for doing so were that it was apparent that the purpose of the Applicant seeking the attendance of those persons was to explore why they were not called as witnesses by the Respondent and to determine what, if any, advice they provided to the Respondent’s managers in relation to the events relied on by the Applicant as a basis for her assertion that she was forced to resign.
[12] In my view this is not an appropriate basis upon which persons should be required to attend a hearing. It is for the Applicant to establish the course of conduct on the part of the Respondent’s managers upon which she bases her claim of forced resignation and whether a witness is called to respond to those assertions is a matter for the Respondent and its representative. A failure by the Respondent to call evidence in response to the evidence of the Applicant, may result in the Applicant’s evidence being accepted on the basis that it is not contested. Further, if there is an unexplained failure by the Respondent to call a witness, an inference may be drawn (in appropriate circumstances) that the evidence of the witness would not have assisted the Respondent.
[13] I turn now to consider the statutory framework and the approach to determining whether a person has been dismissed within the meaning in s. 386(1)(b) of the FW Act.
Legislative provisions
[14] Section 386 of the FW Act provides as follows:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
[15] It is also relevant that the term “conduct” is defined in s. 12 of the Act to include an omission.
The approach to considering whether a person has been dismissed
[16] The general approach to considering whether a person has been dismissed is set out in the Decision of a full Bench of the former Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd 10 where it was stated that:
“[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:
‘[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.’ ”
[17] The Full Bench in O’Meara also cited an earlier Decision of a Full Bench in ABB Engineering Construction Pty Ltd v Doumit 11 where it was observed that:
“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”
[18] The Full Bench in O’Meara went on to observe that:
“In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether ‘the act of the employer [resulted] directly or consequentially in the termination of the employment.’ Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” (footnotes omitted)
[19] In Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli 12 a Full Bench of the Commission noted that:
“[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a “forced” resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the “termination at the initiative of the employer” formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows:
‘1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of 'termination at the initiative of the employer' (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:
• where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
• where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.’
[34] It is apparent, as was observed in the decision of the Federal Circuit Court by Whelan J in Wilkie v National Storage Operations Pty Ltd, that “The wording of s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No. 1) and summarised by the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd” (footnotes omitted). The body of pre-FW Act decisions concerning “forced” resignations, including the decisions to which we have earlier referred, has been applied to s.386(1)(b): Bruce v Fingal Glen Pty Ltd (in liq); Ryan v ISS Integrated Facility Services Pty Ltd; Parsons v Pope Nitschke Pty Ltd ATF Pope Nitschke Unit Trust.” (footnotes omitted)
[20] After citing these cases, Commission Hampton in Sathananthan v BT Financial Group Pty Limited 13 distilled the general legal principles into the following succinct and useful formulation:
• The question as to whether the resignation was forced within the meaning of the FW Act is a jurisdictional fact that must be established by the applicant;
• A termination at the initiative of the employer involves the conduct (or course of conduct) engaged in by the employer as the principal constituting factor leading to the termination;
• The employer must have engaged in some conduct that intended to bring the employment relationship to an end or had that probable result;
• Conduct includes an omission;
• Considerable caution should be exercised in treating a resignation as other than voluntary where the conduct of the employer is ambiguous and it is necessary to determine whether the employer’s conduct was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign; and
• In determining the question of whether the termination was at the initiative of the employer, an objective analysis of the employer’s conduct is required.
[21] I have applied these principles to my consideration of the evidence in the present case.
Evidence
[22] The Applicant’s case in relation to forced resignation can be summarised as follows. The Applicant has been a Registered Nurse since 1999, a Perioperative Nurse for 21 years and a Perioperative Educator for 17 years. The Applicant states that her qualifications include: a Bachelor of Nursing with distinctions from the University of Sydney; three post-graduate certificates in Perioperative Nursing, Paediatric Nursing, in Midwifery for RNs. The Applicant has also been awarded a scholarship to attend the American Operating Room Nurses Conference in Chicago and a scholarship to attend the American Academy of Orthopaedic Surgeons Conference in Washington DC. Over her career, the Applicant has attended significant numbers of conference and workshops to ensure that she can provide the most up to date information to nurses and ensure the safety of patients.
[23] As previously noted, the Applicant was employed by the Respondent as a Level 3 Registered Nurse - Perioperative Educator from 1 July 2009 until she resigned from the role effective 28 January 2021. The Applicant said that in accordance with her contract of employment, she officially reported to the Staff Development Manager and to the Assistant Director Clinical Services (ADCS) Perioperative, which were both Level 4 roles. At the time the Applicant commenced employment those roles were respectively filled by Ms Anna Davey and Ms Gayle Wilson.
[24] The Applicant tendered a position description for her role 14 and her contract of employment15. The position description indicates that her position is Level 3 reporting to the Staff Development Manager. There is no apparent reference in the position description to the ADCS Perioperative position. There is a reference to a position titled “Perioperative Nurse Manager”. The contract of employment also refers to the Applicant’s position reporting to Staff Development Manager Anna Davey. There is no reference in the contract of employment or the position description, to positions that the Perioperative Educator reports to, being designated at a particular Level, notwithstanding that these positions may have been designated at Level 4 at the relevant time.
[25] The persons said by the Applicant to have been involved in the circumstances related to her resignation include:
• Ms Renee Balcke – Assistant Director of Nursing (ADCS) Perioperative Services who was the Applicant’s direct manager;
• Mr Adam Stevenson – Chief Executive Officer (CEO) of the Respondent;
• Ms Michelle Mulcahy – Human Resources Business Partner for the Respondent;
• Ms Angela Murray – a Level 2 employee who was Novice Nursing Co-ordinator, reporting to Ms Archer;
• Ms Denise Hartley – Director of Nursing;
• Ms Paula Archer – Intraoperative Nursing Unit Manager;
• Ms Gretchen Thorpe – Acting Anaesthetic Nursing Unit Manager;
• Ms Louella Cooper – Registered Nurse Perioperative; and
• Ms Marilyn Westnidge – Registered Nurse and Workplace Representative.
[26] It is necessary to deal with issues that the Applicant had with Ms Balcke and her management. In support of her allegations about Ms Balcke’s conduct the Applicant tendered documents which she referred to as “file notes”. It emerged during her evidence that some of the file notes were records of the Applicant’s recollection of meetings or interactions with Ms Balcke and other documents were emails which the Applicant sent to Ms Balcke and which she asserts Ms Balcke did not respond to. The Applicant recorded her views about this non-responsiveness by hand-writing notations on the emails. The file notes tendered by the Applicant comprised three records of meetings or interactions with Ms Balcke and ten emails annotated by the Applicant. These documents were not provided to the Respondent prior to the Applicant preparing her statement of evidence for the present case.
[27] In relation to the events leading to her resignation, the Applicant said that in early 2020 she began noticing a change in Ms Balcke’s behaviour towards her which took the form of ignoring, belittling and making decisions that made it difficult for the Applicant to carry out her role. The Applicant said that her concerns were heightened following a meeting with Ms Balcke on 24 July 2020, where the Applicant was informed of a change to her role so that she now reported to the Level 3 Intraoperative Nursing Unit Manager. The Applicant described this as a unilateral change to her reporting line. According to the Applicant, during this discussion Ms Balcke had a copy of the Applicant’s employment contract on the table in front of her “in a threatening manner”. Also discussed was the Applicant’s involvement in program referred to as the “Novice Program”. The Novice Program provides for nurses who have limited or no experience working in operating theatres, to receive specialised training including from “preceptors” (teachers or instructors) who are intended to be assigned to and rostered with a particular novice. The Novice Program is conducted by Ms Murray, the Novice Nursing Co-ordinator.
[28] The Applicant tendered a file note of the meeting of 24 July 2020, which contains numerous observations on the part of the Applicant about Ms Murray’s lack of qualifications and experience necessary to perform her role and issues about the Applicant’s involvement (or non-involvement) with the Novice Program. The Applicant said that it was after this meeting, on the advice of her father, that she commenced keeping detailed file notes recording her interactions with Ms Balcke and her concerns about being bullied.
[29] Ms Briggs said in her evidence that the during the period of her employment as ADCS – Perioperative, the Applicant was employed as a Perioperative Educator, reporting directly to Ms Briggs and was a key member of the team with whom Ms Briggs had an excellent working relationship. Ms Briggs also said that as it was important for the ADCS to be available for and to support the Perioperative Educator, and she had regular meetings with the Applicant to discuss aspects of her role. Further Ms Briggs said that a core component of the Applicant’s role was to sit on the Policy Document Control Committee which oversees all documents across the Hospital and requires Perioperative Education input. Ms Briggs was happy for the Applicant to attend as her representative given that the Applicant was responsible for writing and reviewing all perioperative policies. Ms Briggs said that she transitioned to a different role prior to her retirement and during this period had a discussion with the Applicant in which the Applicant informed her that she was distressed about her present circumstances, that she and other staff were unhappy in the workplace.
[30] The Applicant also detailed incidents described by her as ostracising and bypassing, diminution of her role, and unreasonable direction or instruction given to her by Ms Balcke. In relation to the diminution of her role, the Applicant referred to her removal from the Policy Document Control Committee (PDCC) which oversees documents, forms or policies across the whole hospital. The Applicant said that the PDCC requires perioperative education input, on the basis that perioperative accounts for approximately half the hospital with general medical wards accounting for the other half. The Applicant tendered minutes of a meeting of the PDCC conducted on 4 November 2020 recording that it was decided that the Staff Development Manager represents educational requirements and that to reduce duplication, other educators are not required to attend. 16
[31] The Applicant said that she was informed by Ms Balcke that she no longer needed to attend the PDCC meeting on the basis that both Ms Balcke and the Staff Development Co-ordinator (who is the head educator) also sat on the Committee. The Applicant said that the Staff Development Co-ordinator had no knowledge of the specialised perioperative environment and Ms Balcke had no experience in writing policy to the best of the Applicant’s knowledge. Based on her qualifications and experience, the Applicant continued to write and review all perioperative policies but now required Ms Balcke’s guidance as the Applicant no longer attended PDCC meetings. The Applicant said that often she did not receive responses to emails she sent to Ms Balcke seeking such guidance. The Applicant also detailed her exclusion by Ms Balcke from involvement with the Novice Program and said that although this responsibility is not contained within her position description, she was tasked with it before Ms Murray was employed.
[32] Another issue in relation to Ms Balcke is what the Applicant and witnesses on her behalf, characterise as “conflict of interest” between some of the persons identified above. In this regard, the Applicant states that Ms Balcke, Ms Murray and Ms Mulcahy have a close friendship extending beyond the workplace. Ms Murray and Ms Mulcahy are sisters and Ms Murray is engaged to the former CEO of the Respondent, who is now employed by the Respondent’s parent company at Pindarra Private Hospital. The Applicant contends that this conflict of interest created significant issues within the perioperative area. Ms Westnidge and Ms Archer supported the evidence of the Applicant in relation to the conflict of interest associated with the relationships between Ms Balcke, Ms Murray and Ms Mulcahy. Ms Westnidge maintained that this should have been acknowledged and managed by the Respondent but was not. Ms Archer said that the conflict of interest created issues within the perioperative unit and undermined her supervision of Ms Murray.
[33] The Applicant tendered a file note in relation to the alleged conflict of interest that was said to have been written by her on 25 July 2020. In that document the Applicant opines about the amount of time that is spent by Ms Balcke with Ms Murray while other staff, including the Applicant, have no access to Ms Balcke either in person or by telephone as Ms Balcke’s phone is said to be mostly diverted to the Receptionist. The Applicant goes on in the document to point out the relationships between Ms Balcke, Ms Murray and Ms Mulcahy, and while stating that she does not suggest that Ms Murray was not appointed on merit, states that Ms Balcke: “… has shown exceptionally poor professional judgement in not being open and transparent with her interactions with [Ms Murray] and clearly communicating the reasoning behind her decisions when delegating tasks to [Ms Murray] and constant closed door meetings, to avoid the assumption that is widely held amongst the staff of favourtism”. 17 The Applicant also sets out aspects of Ms Balcke’s position description in the file note and asserts that she has reviewed these and believes that Ms Balcke is “breaching” many of those criteria.
[34] Another issue that the Applicant had with Ms Balcke was the management of the Novice Program. Examples of these issues given by the Applicant were said to be an email and a file note of a meeting that the Applicant had with Ms Balcke on 23 October 2020 in relation to responsibility for allocating preceptors to novice staff and whether this should be done by Ms Murray or the Applicant. The file note records that during the meeting on 23 October, Ms Balcke gave advice to the Applicant about the order that she should have assigned to recipients of the email, which the Applicant describes in the file note as “Incredulous and pathetic to say the least” and goes on to record that she informed Ms Balcke that this advice was “extremely petty” and that the Applicant “did not have time in my day to think up ways that I could offend Angela [Murray].” 18 The file note concludes with an additional observation that it is virtually impossible for the Applicant to make contact with Ms Balcke because her door is always closed and her phone diverted to reception but that the moment it seems that the Applicant is stepping on Ms Murray’s toes, she has a meeting with Ms Balcke the next day.
[35] The Applicant also said that the fact that Ms Murray was asked “on more than one occasion” by Ms Balcke to act in Ms Balcke’s role, which the Applicant notes is a Level 4 role while Ms Murray’s role is a Level 2 role, is further evidence that Ms Balcke inappropriately favours Ms Murray over other staff. The Applicant tendered an email dated 3 November 2020 from Ms Balcke to staff, including the Applicant, confirming that Ms Balcke would be on leave from 17 – 23 November 2020 and that Ms Murray would be acting in Ms Balcke’s role. The Applicant said that this email was the first notification that she had of Ms Balcke’s leave and that in her experience and many years with the Respondent, the Applicant cannot recall a time when a Level 2 employee was utilised to act in the Level 4 ACDS position and that normally the position was backfilled with a Level 3 employee for reasons including clinical safety.
[36] Further matters referred to by the Applicant as evidence of the alleged conflict of interest, were Ms Balcke allowing Ms Murray to undertake tasks and be involved in activities such as interviewing and recruitment and writing documentation for Level 2 RNs, which were variously described by the Applicant as being outside Ms Murray’s scope of practice as a Level 2 Novice Co-ordinator and in the Applicant’s experience not “done nor considered educationally appropriate”. Ms Archer supported the Applicant’s evidence about the inappropriateness of Ms Murray (a Level 2) acting in Ms Balcke’s position (a Level 4 position) during Ms Balcke’s absences from work and the involvement of Ms Murray in writing the Level 2RN Perioperative Portfolio.
[37] Ms Cooper, Ms Archer and Ms Westnidge gave evidence in relation to their views about Ms Balcke and her management. Ms Cooper said that Ms Balcke had held her position for 4 – 5 years. According to Ms Cooper, in the last two years, after suffering a bereavement which Ms Cooper described as “tragic” Ms Balcke has not managed the Department as efficiently as in previous years and has become abrupt, unreliable and maintained a closed door policy. Ms Cooper said that this has had a deleterious effect on staff morale and the running of the Department. Ms Archer also described concerns that she shared with the Applicant about Ms Balcke’s behaviour including lack of interaction, belittling and inappropriate treatment and favouritism to Ms Murray. Ms Westnidge who gave evidence in her capacity as a Registered Nurse and the Workplace Representative in the Perioperative Department, reiterated the evidence of other witnesses about Ms Balcke’s behaviour including her closed door policy and non-responsiveness to emails. Ms Westnidge also confirmed that Ms Balcke spent time interacting with Ms Murray and that Ms Balcke’s conduct towards other staff was “rude and aggressive.”
[38] Matters came to a head on 22 January 2021, when Ms Balcke wrote to the Applicant in relation to competency concerns. The Applicant said that this was the first time in her nursing career where issues were raised with respect to her employment and that otherwise she received good performance reviews and feedback including during her period of employment with the Respondent. That letter [salutations omitted] was in the following terms:
“Re: Request to attend a meeting
It has been alleged that in your position of Perioperative Educator, you have not been undertaking the required competency checks with Theatre employees but instead have been ticking them off as competent without confirming that this is the case.
If this is true, this allows employees to undertake tasks that they may not be competent to do. The obvious risks to patients, doctors and staff are significant.
I need to meet with you urgently to discuss your approach to undertaking the competency checks,
I also need to check your understanding about the “Medical Student Orientation Handbook” and the “Medical Student Orientation Handbook - Operating Theatres” and your preparation and request for approval (see attached). You had documented that Kristina Backwell – Staff Development Manager, had seen and approved these policies. When these were tabled at the Policy and Document Control Committee (PDCC) meeting on Wednesday the 4th November 2020, Kristina Backwell advised she had not seen these policies.
You are requested to attend a meeting on Thursday 28th January 2020 (sic) at 11:30am in the Executive Office. I will have Michelle Mulcahy our HR Business Partner at this meeting with me. You are invited to bring a support person with you to this meeting if you would like to.”
[39] Appended to the letter were ten documents evidencing competency assessments undertaken by the Applicant in relation to an employee in a range of areas. In each case, the employee who was assessed has signed the form on 7 July 2020 and the Applicant has signed on 3 July 2020, as the assessor. 19
[40] In relation to this letter, the Applicant said that it was provided to her by Ms Balcke after a lengthy period of inappropriate treatment by Ms Balcke and well after the Applicant documented that treatment. At the time of receiving the letter, the Applicant said that she was distressed by this escalation and was concerned because Ms Balcke was treated as a member of the executive team which Ms Mulcahy supported. The Applicant said that she was also concerned because Ms Hartley (Director of Nursing) had asked who she was when the Applicant went to discuss a matter with Ms Hartley, despite Ms Hartley having been employed for two years and attending PDCC meetings with the Applicant. Further, Ms Balcke was acting in Ms Hartley’s role at the time she gave the Applicant the letter.
[41] The Applicant said she felt targeted as she was only one of four nurses who had completed competencies in that way and the other nurses had not been called to account in a letter. The Applicant also said that she was aware of the friendship between Ms Balcke and Ms Mulcahy and felt unsafe attending a meeting with them and that they had made a pre-determined decision about disciplining her. The Applicant was concerned about being disciplined because she had begun “pushing back” and raising concerns about patient or staff safety and particularly about the Novice Program and its poor delivery. The Applicant also said that Ms Balcke would not respond to her emails and would berate her by raising her voice and changing her tone. The Applicant referred to the meeting of 24 July documented in her file note and said that during that meeting Ms Balcke stated that she would “try to keep her temper under control” but raised her voice in any event.
[42] As a result of her concerns, the Applicant sent an email to the Hospital CEO Mr Stevenson, at 10.43 pm on Sunday, 24 January 2021. The subject line of the email was: “Requiring your URGENT review in regards to unsubstantiated claims made by the ADON – periop.” The email was lengthy, spanning some five A4 pages when printed. The email attached the correspondence received by the Applicant from Ms Balcke in relation to the meeting the Applicant had been requested to attend on 28 January 2021. In summary, the Applicant’s email stated:
• As Ms Hartley is currently on leave and this letter is in regards to the conduct of Ms Balcke, who is acting in her position, the Applicant feels she has no other option than to direct her serious and substantiated concerns to Mr Stevenson regarding the inappropriateness of Ms Balcke’s letter and the meeting as well as other serious concerns the Applicant has regarding the management of the Perioperative Department;
• The Applicant “vehemently” denies that in her role as the perioperative educator that she has passed staff members as competent without a formal or general assessment of their clinical skills and sets out estimations of the numbers and kinds of competency assessments she has provided during the previous months including the COVID-19 pandemic with references to anaesthetists who will support her assertions in this regard;
• The Applicant set out her educational qualifications and experience in detail and stated that “in no means to cast judgement on Renae [Balcke]” the Applicant is “infinitely more qualified and experienced both academically and clinically than Renae [Balcke] and this is why I find it offensive and professionally unsubstantiated that Renae should question my clinical judgement and commitment to patient safety by straight up issuing me with a formal letter regarding an unsubstantiated accusation. In my opinion this only goes to demonstrate a lack of experience, judgement and leadership.”.
• The Applicant then goes on to detail at length two occasions which she asserts demonstrate her commitment to the safety of our patients and staff, one of which the Applicant believes is “much more deserving of [Ms Balcke’s] fervent investigations than this petty accusation”. The first matter involves an incident where the Applicant intervened by expressing her concerns to doctors to prevent a woman “from a hotspot in Sydney” undergoing cosmetic surgery at the hospital. The Applicant sets out five questions she believes should have been posed to another employee who was involved in the matter including: “I would have to question whether it occurred to [name redacted] the unlikely nature that the chief medical officer would grant an exemption for a patient travelling from a hot spot to have COSMETIC SURGERY WHEN SHE WONT EVEN GRANT AN EXEMPTION FOR PARENTS TO CROSS THE BORDER TO BE WITH A CHILD WHO IS RECEIVING CHEMOTHERAPY.”
• In terms of patient safety, the Applicant states that she was involved in the disciplining and eventual resignation of an Anaesthetist practicing at JFH who was “aggressive, inappropriate and very very dangerous” and names doctors she asserts will support this assertion and who thanked the Applicant for her involvement.
• In relation to the reference in Ms Balcke’s letter to the medical student’s orientation manuals the Applicant states that she has email evidence “that clearly catches [Ms Balcke] in a complete and utter lie … and clearly only serves to cast serious doubt on the credibility of any other claims” and that Ms Balcke has tried to “pull the proverbial wool” over the Applicant’s eyes. The Applicant then poses a question to Mr Stevenson that: “You must ask yourself, if someone lies about one thing, what else are they lying about?”.
• The Applicant also asserted that Ms Balcke’s conduct is most likely a concerted and premeditated attempt to undermine the Applicant and that Ms Balcke has slowly and persistently whittled away the responsibilities of the Applicant’s portfolio including by taking steps to remove the Applicant from the PDCC committee. In relation to this matter the Applicant states: “It seems to me incredulous that Renae [Balcke] would see fit to relieve me of this position. Adam, with a man of your experience would you say this is a rational decision or the decision of a manager that feels somewhat threatened by my knowledge, experience and the respect of my colleagues.”
• The Applicant described “another incredulous decision”, that Ms Balcke should mandate that she not support the level 2 RN Novice Coordinator in delivering this program in her role as the level 3 RN Perioperative Educator. In relation to this matter the Applicant went on to assert that this “quite bizarre” decision was motivated by the relationship and overt favouritism displayed by Ms Balcke to the Novice Coordinator, evidenced by Ms Balcke appointing the level 2 RN Novice coordinator to act in her position twice when she has been on leave, far exceeding the scope of her role as a Novice Coordinator. The Applicant states that “this is NOT correct succession planning”. Favouritism is also said to be evidenced by the many hours Ms Balcke spends behind closed doors with the Novice Coordinator when the Applicant cannot get a response to an email. Further it is asserted that Ms Balcke has removed from the Applicant’s portfolio the management and overseeing of the New Graduates in the perioperative services which the Applicant has looked after since her employment and a question “what more will she take from me?” is posed.
[43] The Applicant’s email to Mr Stevenson concludes with the following:
“As you can appreciate Adam, I am putting myself very much out on a limb by writing to you. I do not do this lightly and understand the seriousness of what is contained in this letter, I am obviously concerned and apprehensive about the outcome but I can promise you this, I have a beautiful young family that relies on my wage for survival and I would not jeopardise this ever, particularly by making up lies and false accusations. I request only that you take this feedback with an open mind and take some time to investigate and contact the staff and doctors I have referred to in this letter. In fact, I encourage you to speak to anyone in the theatre complex, nurse, doctor, orderly regarding my role as the perioperative educator. I am 100% confident that you will receive very positive feedback and see that I am a genuine, honest, caring and committed nurse. I ask you to please intervene and put a stop to this nonsensical meeting which I will not be attending regardless. In fact, I will not attend any meeting with Renae without appropriate representation.
I appreciate you taking the time to read this letter and I look forward to hearing from you in regards to these matters. I am sure you will agree with me Adam when I say that bullying in the workplace, whether overt or covert, is unacceptable.”
[44] Shortly after sending that correspondence, at 10:49pm on 24 January 2021, the Applicant sent an email to Ms Balcke stating [salutations omitted]:
“I am writing to advise you that I will NOT be attending the meeting scheduled for 10am on the 28th January 2021. In fact I will not attend any meeting with you without proper representation from the nursing union or other legal representation.
I have forwarded a detailed letter of complaint to Adam Stevenson and I shall leave it in his capable hands to proceed as he sees fit.”
[45] At 3.54 pm on Wednesday, 27 January 2021, Mr Stevenson replied to the Applicant’s email of 24 January 2021 by email in the following terms:
“I have read the request to attend a meeting sent to you by Renae and I have seen your response to that request and have also read the detailed email you have sent me.
In your email you have provided numerous examples of your attention to patient/colleague/doctor care and welfare and I thank-you for that.
In relation to Renae’s question about conducting competency checks with theatre employees, you have advised that for novice staff, the comprehensive assessment is usually undertaken by a Level 2RN.
For experienced staff:
“In my professional and knowledgeable opinion, a formal assessment of these staff is not required. Having worked with these staff during surgical procedures and subsequent immediate post-operative recovery and having observed closely these staff in the clinical setting, I have been clearly able to establish very quickly and comprehensively whether that these staff are either competent or not in all the fundamental clinical skills required and overall was happy to sign these staff off on these competencies without performing a formal assessment on each individual clinical skill”.
It appears that this could be the area of concern that Renae was referring to and I have provided her with a copy of this response to review.
In relation to the question of whether Kristina Backwell had reviewed the document that was referred to or not, you have provided an email trail which confirms she had seen the document. Renae has advised you that when she showed the document to Kristina, Kristina said she had not seen it. You have accused Renae of being a liar which is totally inappropriate. The likely explanation is that Kristina had forgotten that she had seen the document.
These simple explanations could have been given to Renae at the meeting you were asked to attend and these matters addressed at that time. I was surprised with your response to this request which was:
[text of the Applicant’s email to Ms Balcke in relation to not attending the meeting]
Celia, your refusal to meet with Renae is not something you are at liberty to do without potentially serious repercussions. Renae was asking you to attend a meeting to discuss concerns she had become aware of which as a manager is her responsibility to do. You are obliged to comply with lawful and reasonable management requests as part of your employment contract – I notice you were invited to bring a support person with you if you wanted to do so and this could have been someone from the nursing union or other legal representation.
I will ask Renae to cancel the meeting request for the 28th whilst she considers your responses. I will ask Renae to copy me in on any further correspondence.”
[46] At 9:03pm also on 27 January 2021, the Applicant sent an email in the following terms to Mr Stevenson resigning her employment:
“Thank you for responding to my email regarding competency assessment in the operating theatres. I stand by my assertion that assessing experienced nursing staff by observing them working within the clinical setting is a legitimate way to assess their clinical competency. We have assessed staff this way for many years and I have no doubt you would find that across the hospital any experienced nursing staff employed would have not had formal assessment of all their clinical skills before they are allocated to clinical practice. I have no double that you’ll find that Renae is aware of this too.
Should she have had any questions about this I suggest the most professional and reasonable thing to do would have spoken to me about this first instead of issuing me with a formal letter to attend a meeting in the executive offices with herself and the HR manager, especially since I would never intentionally put the safety of patients at risk and in fact have always had the courage to advocate for patient safety, even in the most difficult of circumstances as highlighted in my previous letter. In hindsight, perhaps I should not have refused to attend the meeting, however, I certainly had no confidence that it would be fair and unbiased as you will see from the points below.
In regards to the current nursing staff that required signing off as competent on clinical skills to complete the competency matrix the same principle applies as above, having worked closely with these staff over many years I can confidently say whether they are competent or not. Further to this I have the following questions:
• Did [name redacted], the Clinical Educator, who signed off the majority of current intraoperative nurse in the same manner, receive a formal letter to attend a meeting in the executive offices with Renae and the HR manager
• Did [name redacted], NUM of PACU, who signed off the majority of the PACU staff in the same manner receive a formal letter to attend a meeting in the executive offices with Renae and the HR manager
• Did [name redacted] previous acting NUM of anaesthetics, who signed off the majority of the anaesthetic staff in the same manner receive a formal letter to attend a meeting in the executive offices with Renae and the HR manager
I expect not, which in itself speaks volumes. Adam, please know that I have the upmost respect for [names redacted] and in no way do I believe they have acted unprofessional as I haven’t but wanted to highlight to you just one example of the inconsistency and victimisation that I have received.
Adam, I can’t say I am not disappointed and wished you had taken time to speak to the nursing staff I mentioned in my previous letter in regards to my contribution to the preoperative services over the last eleven and half years and their thoughts of the Preoperative Services Manager, particularly the recently resigned NUMs of the operating theatres. I’m also disappointed that your email makes no mention in regards to the other issues I bought (sic) up in my previous letter. I’m sure you will agree that where there is smoke there is fire.
It is with deep regret that I find myself in a position that is no longer tenable and I can no longer work in such an unhappy and dis-functional environment, I tender my resignation from tomorrow 28th January 2021 giving 2 weeks notice which leaves my last shift as 11th February 2021.
Of course, no one is indispensable, Renae included, but with my wealth of experience, dedication to patient and staff safety, rapport with and support of the nurses, support staff, surgeons and anaesthetist, graduate nurses, students and all the other educators in the hospital, I am afraid that my resignation will only be a loss to the hospital. I shall not be surprised in the least if my replacement is the current Level 2RN Novice Coordinator.
I am more than happy to attend an exit interview with yourself at your convenience. If you wish, I can provide you with all of my file notes at that time. ”
[47] The Applicant explained her decision to resign her employment by stating that when she was asked to attend a meeting with Ms Balcke and Ms Mulcahy on 28 January 2021, she felt frustrated (in relation to her ongoing concerns) and despondent. The Applicant was also concerned that she would not be given a fair hearing if she attended a meeting with the person against whom she had raised a complaint, due to clear conflict of interest. Further, the Applicant said that she had relayed these concerns in great detail to Mr Stevenson in her 24 January email so that he would understand those concerns, particularly the Applicant’s concern about attending a meeting with Ms Balcke and Ms Mulcahy.
[48] In relation to Mr Stevenson’s response to her email of 24 January 2021, the Applicant said it was not reasonable that she attend a meeting with a person against whom the Applicant had made a complaint of bullying, and that despite her complaint specifically referring to bullying by Ms Balcke, Mr Stevenson referred the matter back to Ms Balcke. The Applicant also said that Mr Stevenson did not offer her any support nor refer her to the Respondent’s policy, being the Ramsay Health Care Discrimination, Bullying and Harassment Policy. The Applicant contended that if these factors had not existed, she would not have resigned. The Applicant tendered a copy of that policy which she had obtained after her resignation.
[49] The Applicant also set out in her witness statement Facebook posts making derogatory comments about Ms Balcke, expressing sorrow at the Applicant’s departure and support for the Applicant. Those posts include statements such as: “I salute your principle”; “Good luck and bring on the next journey where you are appreciated and acknowledged”; and “Hold your head high”. The Applicant gave further evidence about matters that led to her resignation including information she received from Ms Archer about a head of department meeting where Mr Stevenson stated that he had received feedback in regard to poor performance and treatment of heads/NUMs from the Nursing Executive and encouraged anyone with concerns about Ms Balcke and others to see him to discuss those concerns. The Applicant said that she and Ms Archer discussed that this may be the opportunity to bring forward their concerns regarding Ms Balcke and were keen to involve Ms Thorpe and request a meeting with Mr Stevenson. Two weeks later, Ms Archer told the Applicant that she had attended another heads of department meeting where Mr Stevenson stood in front of the group with Ms Balcke and others and stated that he stood 100% behind his Nursing Executive. This caused the Applicant and Ms Archer to believe that their concerns would not be listened to and they decided not to proceed further.
[50] Ms Archer gave evidence about the meetings called by Mr Stevenson which she attended in September 2020. At the first meeting Mr Stevenson encouraged staff to feel comfortable and safe to report concerns they may have about Ms Balcke, Ms Brocket or Ms Hartley. Ms Archer confirmed that she relayed this to the Applicant and that they discussed that this might be the opportunity to bring forward their issues with Ms Balcke. At a meeting two weeks later, Mr Stevenson stood in front of the group with Ms Balcke, Ms Brocket and Ms Hartley and stated that he stood 100% behind his nursing executive. Ms Archer confirmed that she also relayed this to the Applicant and they decided that it was a clear indication that their concerns would not be listened to and decided not to proceed further with raising those concerns with Mr Stevenson.
[51] Also in support of her contention that she was forced to resign her employment, the Applicant said that at the time of her resignation: she had been employed by the Respondent for over 11 years; was well respected within her role; was a single parent with two small children; and had no other role to go to. The Applicant further stated that she has never left a role without having another one to go to but was so impacted by the behaviour of Ms Balcke and the Respondent’s inaction, that she had no other option.
[52] On 8 February 2021, after the Applicant’s resignation took effect, she attended an exit interview in accordance with the request contained in her resignation letter. The Applicant said that she asked for the interview to be attended by Mr Stevenson and Ms Hartley rather than Ms Balcke and Ms Mackay. The Applicant also said that on the one hand she felt there was no point in attending and on the other hand she made the request for an exit meeting after a number of colleagues requested that she do so, so that, in their words, quoted by the Applicant: “something could be done about Ms Balcke’s treatment of various members of staff.”
[53] The Applicant tendered notes of the exit meeting signed by the Applicant and her father and dated 12 March 2021. The meeting notes indicate that the Applicant questioned Mr Stevenson about why he had not followed up on the matters raised in her 24 January email and took issue with Mr Stevenson’s response that a meeting had been conducted with some 50 staff from theatre on the previous day, stating that this meeting had not addressed her concerns but was about the novice program. The notes also indicate that the Applicant made numerous comments about Ms Balcke’s “aggression and bullying” and that she explained her method of competency assessment and that other senior members of staff who assessed competency in exactly the same way, had not received a letter from Ms Balcke. Further, the notes indicate that the Applicant raised issues with Ms Murray and alleged favouritism shown to Ms Murray by Ms Balcke and in relation to her removal from the PDCC. It is then stated in the notes that the Applicant read out each of the criteria in Ms Balcke’s position description (which the Applicant had with her at the meeting) and asked Mr Stevenson and Ms Hartley whether they believed that Ms Balcke met the criteria in that position description. The meeting notes state that neither Mr Stevenson nor Ms Hartley made any answer.
[54] The meeting notes also state that the Applicant informed Mr Stevenson and Ms Hartley that up to ten staff were seeking employment elsewhere and questioned why Mr Stevenson had not been concerned about several key nurses in the theatre department stepping down from their roles or resigning from the Hospital and asked what action would be taken and would she receive feedback. According to the notes, the meeting concluded when Mr O’Keefe stated that it was going around in circles and Ms Hartley stated that she and Mr Stevenson would talk about the Applicant’s feedback, assured the Applicant that she had been heard and wished her luck for her future endeavours.
[55] The Applicant stated that during the meeting Ms Hartley specifically denied that she was aware of the allegations of aggression and bullying on the part of Ms Balcke and Mr Stevenson was silent about this. The Applicant submitted that this was dishonest, based on Ms Archer’s evidence that at 6.43 am on 8 February 2021 (prior to the Applicant’s exit interview on that date), that she had sent an email to Mr Stevenson and Ms Hartley in relation to her resignation, dealing with the following matters:
• “calling out” Ms Balcke’s behaviour towards Ms Archer and the team and providing examples Ms Balcke’s unavailability and non-responsiveness to emails;
• Describing the level of pressure placed on Ms Archer by Ms Balcke leading to significant health impacts beyond Ms Archer’s resignation; and
• Confirming the concern of Ms Archer and other staff members in relation to the Novice Program. 20
[56] Ms Archer also stated that after she sent this email, Ms Hartley attempted to contact her and then sent an email at 7.38 am on that date, acknowledging Ms Archer’s email and thanking her for reaching out. 21
[57] Mr O’Keefe supported the Applicant’s evidence in relation to the exit interview on 8 February, and said in his statement that he repeated a comment to Mr Stevenson and Ms Hartley during the meeting that they had already lost experienced staff and had now lost “one of the best”, referring to the Applicnt. Mr O’Keefe also recounted occasions when he had observed the Applicant to be distressed as a result of Ms Balcke’s treatment. Mr O’Keefe said that he had a discussion with the Applicant on the evening of 22 January 2021 in which the Applicant informed him that in her view Ms Balcke intended to discipline her in relation to the matters raised in the letter of that date and said: “How dare she question my professionalism and commitment to staff and patient safety.” Mr O’Keefe also said that the Applicant stated her view that Ms Balcke was attacking her and other staff until they resigned and that Ms Balcke would put her friend Angela [Murray] into the Applicant’s position. The Applicant composed her letter to Mr Stevenson of 24 January 2021 and read it aloud to Mr O’Keefe, who maintained that the Applicant was asking for help and for Mr Stevenson to investigate the matters she had raised.
5 Exhibit A4 Witness Statement of Ms Marilyn Westnidge.
6 Exhibit A5 – Witness Statement of Ms Moir Briggs.
7 Exhibit R1 Witness Statement of Ms Renae Balcke.
8 Exhibit R2 Witness Statement of Mr Adam Stevenson.
9 Exhibit R3 Witness Statement of Ms Denise Hartley.
10 [2006] AIRC 496 (PR973462).
11 Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).
12 [2017] FWCFB 3491
13 [2019] FWC 5583
14 Exhibit A6 – Annexure 1A.
15 Ibid – Annexure 1B.
16 Ibid – Annexure COK-21.
17 Ibid Annexure COK-7.
18 Ibid – Annexure COK-4 and 5.
19 Exhibit R1 Witness Statement of Renae Balcke – Annexure RB1.
20 Exhibit A2 Annexure PA-1.
21 Exhibit A2 Annexure PA-2.
22 Exhibit A7 Annexure COK-SS-1.
23 Transcript PN262.
24 Transcript PN454.
25 Exhibit A2 Annexure PA-1.
26 Witness statement of Renae Balcke, annexure “RB-1”.
27 Witness statement of Denise Hartley, annexure “DH-1”.
28 Transcript PN829.
29 Transcript PN1135.
30 Transcript PN1175.
31 Transcript PN1177.
32 Australian Hearing v Peary [2009] AIRCFB 680.
33 Marcia Doyle v Department of Justice 2008 AIRC 350.
34 Ibid.
35 O’Meara v Stanley Works Pty Ltd PR976432.
36 [2018] FWC 1455.
37 Witness Statement of Renae Balcke at [8].
38 Attachment AS-1 to the Witness Statement of Adam Stevenson p. 2.
39 Transcript PN518 – 521.
40 Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).
41 PR732533.
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