Construction, Forestry, Mining and Energy Union v MSS Strategic Medical Pty Ltd

[2015] FWC 6937

[2015] FWC 6937

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Construction, Forestry, Mining and Energy Union
v
MSS Strategic Medical Pty Ltd; MSS Security Pty Ltd
(C2015/575)

COMMISSIONER GREGORY MELBOURNE, 13 NOVEMBER 2015

Alleged dispute about Clause 24 and Clause 6.9.

Introduction

[1] Ms Kerrielee Kendall has been employed by MSS Strategic Medical Pty Ltd; MSS Security Pty (“MSS”) at the Loy Yang A site in the Latrobe Valley since 1 August 2012 when MSS took over the contract for the provision of various services at the site. She is employed as an Emergency Services Officer. She has also been employed at the site by the previous contractors since 1993, and prior to that worked in security and emergency service roles pre-privatisation with the State Electricity Commission of Victoria.

[2] In March this year a number of issues were raised with Ms Kendall in correspondence from MSS about her behaviour and work performance. The Construction, Forestry, Mining and Energy Union (“the CFMEU”) subsequently notified a dispute under s.739 of the Fair Work Act2009 (Cth) in accordance with the dispute resolution procedure in the CFMEU MSS Enterprise Agreement 2012 1 (“the Agreement”) that covers the parties. The matter was dealt with in a conciliation conference on 31 March but was unable to be resolved.

[3] On 11 May MSS provided Ms Kendall with the outcome of the findings of an investigation into the issues detailed in its earlier letter of 3 March, and indicated it now intended to provide her with a warning as a result of her behaviour and performance. The CFMEU subsequently sought to have the matter arbitrated. This decision deals with that application. Mr Alex Bukarica appeared on behalf of the CFMEU. Ms Martha Travis appeared on behalf of MSS.

The Issue to Be Decided

[4] The dispute notification is made under clause 24 “Dispute Resolution” of the Agreement. It extends to deal with “…any dispute arising as to the interpretation or application of this Agreement, or any matter arising in the course of employment…” 2 It also makes reference to sub clause 6.9 “investigations” which deals with circumstances involving “alleged serious misconduct or serious neglect of duty.”3

[5] The dispute notification continues to indicate under the heading “What is the dispute about?” that the action taken in regard to Ms Kendall is inappropriate and MSS is, more broadly, using its disciplinary process to inappropriately target employees for redundancy/dismissal. It seeks an order “that MSS immediately cease its victimization (sic) and deliberate targeting of ESO employees for redundancy/dismissal.” 4

[6] In its written submission it seeks a more specific determination in the following terms:

“8.1 That MSS remove the written warning given in the letter dated 11 May 2015 from Kerrielee Kendall’s personnel record.

8.2 That MSS remove the 6-month supervision period with a formal review after 3 months.

8.3 That MSS provide to Kerrielee Kendall her certificate of practice.

8.4 That where MSS propose to undertake any investigation into the behaviour or conduct of an employee that the employee be informed of the need for any investigation, if any, of the nature and seriousness of the investigation and, consistent with the provisions of the enterprise agreement (sub clause 6.9 and 24), the details of the process be determined at the commencement of the process. The parties should reach agreement on the process to be adopted or alternatively follow the disputes resolution procedure in that regard. An employee is entitled to representation by an employee representative as nominated by the employee.

9. That the Fair Work Commission reminds MSS of its obligation to follow sub clause 6.9 of the Enterprise Agreement regarding investigations of allegations of ‘serious misconduct or serious neglect’ observing that whilst in this matter MSS described the allegations against Kerrielee Kendall as ‘serious’ it did not follow sub clause 6.9.” 5

The Evidence and Submissions

[7] The CFMEU submits the dispute concerns, firstly, a number of allegations made in a letter dated 3 March 2015 about the behaviour and conduct of Ms Kendall, as well as concerns about bullying and harassment directed at her. It also refers to another letter dated 1 March 2015 in which Ms Kendall is denied her “scope of practice,” due to what it describes as “unexplained allegations concerning clinical judgement and performance.” 6 It continues to refer to the findings presented to Ms Kendall by MSS on 11 May 2015 as a result of the outcome of its investigations of the issues detailed in its previous letter of 3 March.

[8] The CFMEU continues to submit that none of the eight issues raised by MSS in the letter dated 3 March warrant disciplinary action. In its submission the issues and the reasons why the action taken by MSS in each case is disproportionate can be summarised on the following basis.

• The allegation that Ms Kendall applied an unsafe and unhygienic clinical approach to the removal of a splinter. It is noted that this is considered by MSS to be the most serious allegation. The CFMEU submits in response that following an investigation into the matter this allegation was not able to be substantiated.



• The allegation that Ms Kendall acted in a disrespectful manner to another employee. The CFMEU again submits this allegation is unsubstantiated.



• The allegation that Ms Kendall allegedly slammed a refrigerator door and stormed out of the room. The CFMEU submits this was a misunderstanding that was resolved amicably.



• The allegation that Ms Kendall remained at work when she was ill and should have gone home. The CFMEU submits Ms Kendall, as a person experienced in first aid, was in the best position to judge whether she should have gone home.



• The incident in which Ms Kendall climbed on top of the water tank on a fire truck. The CFMEU submits this action was an error of judgement which Ms Kendall acknowledged, and no action was taken at the time when the incident was first raised. Ms Kendall also stated she was suffering from stress and anxiety at the time and this had influenced her behaviour.



• The allegation Ms Kendall acted inappropriately or improperly during the course of a team emergency response debrief. The CFMEU submits this was little more than a minor difference of opinion during the course of the meeting.



• Ms Kendall’s response to a question concerning appropriate eye treatment at a tool box training session concerning a new eye treatment protocol. The CFMEU denies Ms Kendall gave an incorrect answer to the question and submits, in any case, she was denied a reasonable opportunity to explain her position when her answer was questioned. It submits it was a significant overreaction to conclude on the basis of this incident that her certificate to dispense certain drugs be removed, and she be given a written warning and on-going supervision as a consequence.



• The allegation that Ms Kendall removed statistical information from the site without authority. The CFMEU submits this is also a “non-issue” in reality and the subsequent finding by MSS had nothing to do with the initial allegation.

[9] The CFMEU continues to submit the nature of the allegations raised against Ms Kendall, and the disproportionality of the action taken, are also emphasised when Ms Kendall’s extensive and long-standing work history is taken into account. It submits in all her years of employment in various emergency services roles Ms Kendall has not previously been subject to disciplinary action. It also submits MSS is now reaching back to revisit past matters not considered at the time to warrant disciplinary action.

[10] The CFMEU also submits that the evidence indicates Ms Kendall has been the subject of bullying behaviour by the management of MSS at the site and by the behaviour, in particular, of her immediate Manager, Mr Jason Shields, the Emergency Response and Security Site Manager. In this context it highlights raising trivial issues, the investigation of the same matter on more than one occasion, a failure to accept reasonable explanations provided, and capricious behaviour in introducing new allegations without notice or without providing a reasonable opportunity to respond. It also submits that despite Ms Kendall having complained about being bullied there has been no change of approach toward her in response.

[11] It submits the behaviour exhibited towards Ms Kendall also needs to be considered in the broader context of a desire by MSS to restructure the existing workforce through the replacement of some existing staff with employees qualified as registered nurses. It submits, as a consequence, that there is no coincidence between the treatment of Ms Kendall and the possibility of certain employees being made redundant in order to facilitate the utilisation of others.

[12] The CFMEU finally submits that despite the letter of 3 March provided to Ms Kendall indicating the allegations against her were “serious” MSS did not follow the procedure for dealing with matters of a serious nature set down in sub clause 6.9 of the Agreement.

[13] Ms Kendall’s evidence detailed her extensive work history in the provision of security and emergency services in the Latrobe Valley, and outlined the qualifications and training she has attained and undertaken during that time. Her evidence is that prior to her recent employment with MSS she had not been subject to formal disciplinary action or received a formal warning during her entire working life. However, by contrast in the last 12 months she has been the subject of various different investigations in regard to a variety of alleged incidents. Her evidence continued to detail the various matters referred to by the CFMEU in its submissions concerning the allegations made against her.

[14] She continued to indicate that at a meeting with MSS on 17 March 2015 she provided a written response to the allegations made about her. She states there was no discussion of those allegations at the meeting, and at no point after that time was she asked to meet with management representatives to discuss the allegations in the previous letter or her subsequent response. She accordingly assumed the matters had been dealt with and resolved.

[15] However, she states that on 11 May she received a letter from MSS entitled “Investigation Outcomes,” which advised that “as a result of your behaviour and failure to follow the appropriate policies and/or processes” she was given a formal warning. 7 The letter also indicated MSS’s internal Clinical Governance Committee had recommended she be placed under supervision for the next six months, with her performance to be reviewed again in three months. She was also to be provided with a performance and clinical improvement plan within 14 days, however, Ms Kendall indicated to date no such plan had been provided.

[16] Ms Kendall said the letter of 11 May concluded in regard to the eight allegations dealt with in the previous 3 March correspondence that three were either unsubstantiated or no action would be taken, three had been substantiated, and two others were described as being “of concern.” She said the three allegations found to be substantiated were those involving the fire truck, her behaviour at the team debrief, and her response to the question to do with the eye treatment protocol. The other two matters indicated to be “of concern” involved her remaining at work when apparently unwell, and the removal of statistics from the site.

[17] Ms Kendall’s evidence in regard to each of the allegations made against her can be summarised, as follows –

• Removal of the splinter – a colleague, Mr Stephen King, had shown her a splinter in his finger while they were in the brew room at the First Aid Centre after a tool box meeting. Ms Kendall said she used the tip of a bottle opener on her pocketknife to point at the finger, but at no stage was she attempting to remove the splinter and had not penetrated Mr King’s skin.



• Slamming the refrigerator door – Ms Kendall denied this incident occurred, although she was annoyed because another heavy lunch box had crushed her lunch, making it inedible. She also said a further issue was later raised about the events at this time to do with her listening to the radio at work, which she said was common practice once other necessary work tasks had been completed.



• Remaining at work when unwell – Ms Kendall denies she sought to downplay the severity of her illness or had demonstrated poor or questionable judgement in remaining at work. Her decision to remain was based on her view she was well enough to do so. She also denied any allegation about a breach of confidentiality after subsequently raising an issue to do with food from the canteen with canteen staff. She said she was simply obtaining information that might be relevant to the issues in dispute.



• Fire truck – Ms Kendall’s evidence acknowledged what she did in climbing onto the roof of the tanker to insert a hose into the tank in order to refill it was not in accordance with correct procedure. However, she had apologised and undertook to ensure it did not happen again. She also stated she was feeling stressed and anxious following an encounter with her Manager on the previous day, and this had affected her judgement.



• Inappropriate behaviour – Ms Kendall denies her attitude was inappropriate and unnecessarily aggressive. She acknowledged that on one occasion she might have invaded her Manager’s personal space, but this was done for the purpose of demonstrating the behaviour her Team Leader had previously exhibited to her.



• Eye treatment protocol – Ms Kendall denies the words attributed to her in response to the question asked of her, and states she was denied the opportunity to clarify her response. She also said her work experience over an extended period of time confirms she has never been known to carry out eye treatment in the manner alleged. She also states that, in any case, she had not received any training in regard to the new protocol.



• Removal of confidential information – Ms Kendall denies her answers in regard to this issue were evasive or vague, and she attempted to respond as best she could based on what she knew at the time. She also indicated that her actions were in response to a request from the client.

[18] Ms Kendall also said she believes she has been subjected to undue attention and bullying behaviour over the past 12 months, and is now being treated by her doctor for a stress-related condition as a result. She indicated in her examination in chief she was still seeing a psychologist, and had been prescribed medication, but was only taking it “when I get really bad.” 8 She also said she had filed a workplace bullying allegation with the Victorian WorkCover authority in February 2015, and met with a WorkSafe officer in April. She also said she was advised to make a WorkCover claim but to date had not done so.

[19] Ms Kendall also indicated in cross examination she was prepared to respond to constructive criticism and comment about her performance and behaviour at work. However, she acknowledged she could not recall one example where Mr Shields had raised a concern about her performance or behaviour and she had responded by taking steps to change her behaviour or performance.

[20] Mr Geoffrey Dyke is the Secretary of the Victorian District Branch of the Mining and Energy Division of the CFMEU. His evidence provided details of an announcement by MSS in March 2014 indicating five Emergency Services Officers were going to be made redundant and be replaced with a similar number of Registered Nurse/Emergency Services Officers. His evidence also detailed a dispute notified in regard to that decision and what had transpired as a result. He also said since this dispute has been in progress MSS has been required to maintain the “status quo,” which has prevented it from using the Registered Nurses operationally.

[21] His evidence also indicated he has been representing Ms Kendall in regard to various issues to do with her employment since November 2014, and has raised concerns with MSS about its apparent failure to adequately investigate or respond to the bullying concerns raised on behalf of the employees at the Loy Yang site.

[22] Mr Stephen King is also employed by MSS as an Emergency Services Officer at the Loy Yang site. On 16 February his evidence indicates he had a splinter in his finger and in a subsequent discussion with Ms Kendall she identified the splinter and talked about how it could be removed.

[23] He said he subsequently received a phone call later that day from Mr Shields who said words to the effect, “she shouldn’t be doing anything with the knife.” 9 Mr King said he responded by indicating Ms Kendall had only provided him with advice and he subsequently removed the splinter himself. He said he did not give the matter any further thought.

[24] On 19 February he received an email from Mr Shields which referred to the incident and asked whether he had an up-to-date tetanus vaccination. He said Mr Shields also referred to a phone call earlier that day, but Mr King did not recall any such discussion. He subsequently advised Mr Shields on 24 February his tetanus vaccination was up-to-date. He also indicated in cross-examination that when asked by Mr Shields some days later about his tetanus vaccination he simply associated this enquiry with the fact of having had a splinter in his finger, rather than with any investigation about Ms Kendall taking action to remove the splinter inappropriately.

[25] Mr King said Mr Shields later called him into his office on 24 March and told him he wanted a written statement about the incident by the end of the day. Mr King said Mr Shields also indicated there would be “consequences” if the statement was not provided. 10 Mr King said he was concerned about the nature and tone of this conversation and Mr Shields appeared to be attempting to get him to change his position in regard to what had occurred. He subsequently decided to contact the CFMEU to obtain advice about what to do.

[26] His evidence indicated he then responded to the email from Mr Shields on 26 March informing him that Ms Kendall had told him how to remove the splinter. He said she had used a can opener at the time to point to the splinter, but did not touch his finger and subsequently closed the opener by pressing the blunt side on the underside of the table.

[27] He then received a further letter from MSS on 10 April indicating it believed he may have falsified his evidence and, if so, his employment could be terminated. He was also asked to respond in writing about the allegation that his actions did not correlate with his statement. The letter also stated he had apologised to Mr Shields for what had occurred, however, Mr King said had no recollection of any such conversation. On 15 April he sent a further email to Mr Luddington advising his earlier statement remained true and correct and he did not intend to make any changes to it.

[28] He later responded to a further letter from Mr Luddington, and complained of being harassed and bullied by Mr Shields and being coerced into providing a favourable statement. He then received a further email from Mr Luddington on 20 April and there had been no further exchanges about the incident since that time.

[29] MSS submits that in the last twelve months it has identified various shortcomings in the behaviour and performance of Ms Kendall. It acknowledges that when considered separately most are relatively minor in nature. However, it submits when viewed over a longer time period they show an on-going pattern of poor behaviour and below standard performance.

[30] MSS submits Ms Kendall was initially provided with a letter on the 14 January 2015 in relation to concerns about her behaviour in the previous six months. A further letter detailing a number of matters in relation to her behaviour and performance was given to her on 3 March. That letter also confirmed MSS was investigating the incident involving Ms Kendall and Mr King which occurred on 16 February. A response to that letter was provided by Ms Kendall on 17 March, but her responses were not consistent with other information provided to MSS, and further investigations continued.

[31] Ms Kendall was subsequently provided with the outcome of those investigations in a letter dated 11 May. She was also advised she would be provided with a written warning due to her behaviour in failing to follow appropriate policies and/or processes. MSS, through its Clinical Governance Committee, also recommended she be placed under supervision for a period of six months and, in the meantime, her performance would be reviewed after three months.

[32] MSS submits the outcome of its investigations into the eight separate issues raised in the earlier correspondence are as follows –

• Removal of the splinter – conflicting statements were provided by witnesses to the incident and by the two individuals directly involved. As a result of those conflicting statements, and despite concerns the statements may have been falsified, this allegation was not found to be substantiated.



• Acting in a disrespectful manner to other employees – it was decided no action would be taken in regard to this matter.



• Slamming the refrigerator door – different versions of this incident were provided. In the absence of any third party corroboration no action was taken.



• Remaining at work when unwell – MSS found Ms Kendall displayed poor judgement by remaining at work when she was not fit to do so.



• Fire truck – Ms Kendall acknowledges she did not follow proper procedure in relation to this incident. MSS concluded she was in breach of the policy about working at heights and, further, she had not taken responsibility for her actions.



• Inappropriate behaviour – based on statements from employees present at the debrief Ms Kendall’s behaviour was inappropriate in that she was unnecessarily aggressive. It acknowledged she became upset when it was suggested she had not followed proper procedure, but it expected employees to participate constructively in the debrief process.



• Eye treatment protocol – corroborating statements from witnesses supported the view Ms Kendall was not aware of updated medical treatment protocols, despite being informed about these processes in an earlier email. The method of treatment proposed by her could also potentially cause harm to a patient. This allegation was found to be substantiated.



• Removal of confidential information – Ms Kendall acknowledged she had taken statistics off-site without the knowledge or permission of her Manager. When questioned about this her responses appeared not to be open and honest.

[33] Against the background of these findings MSS acknowledges that some of the issues are relatively minor and would normally be dealt with by informal feedback and coaching, rather than by a formal disciplinary process. However, it submits this approach proved to be unworkable. It has been resisted by Ms Kendall and she has sought instead to involve the CFMEU in day to day interactions between herself and site management. It also submits she has failed to take responsibility and respond appropriately to issues to do with her underperformance and poor conduct. It submits, in conclusion, the action taken was appropriate in the circumstances, as well as being proportionate in regard to the allegations found to have been substantiated.

[34] It also submits it has not breached sub clause 6.9 of the Agreement because the reference in its earlier letter to Ms Kendall that the allegations are “serious” does not mean the investigation relates to “serious misconduct or serious neglect of duty.”

[35] MSS also denies Ms Kendall has been subject to any form of “double jeopardy” as she has not been disciplined for the same behaviour on more than one occasion. It also rejects the suggestion she has been denied natural justice in the processes adopted in dealing with the issues, but instead has at all times been made aware of the allegations against her and been provided with a reasonable opportunity to respond.

[36] It also denies she has been subjected to any form of bullying or harassment. It notes she has not made a formal complaint in relation to bullying, despite being provided with the opportunity to do so. It also submits her complaint earlier in the year to WorkSafe in relation to bullying at the site was investigated by a WorkSafe inspector, who concluded no action was warranted.

[37] MSS also denies there is any link between the actions taken in regard to Ms Kendall and the dispute with the CFMEU about the introduction of employees with registered nurse qualifications into the workforce. It notes in this context that since that dispute was initiated it has taken no action to make any employee on the site redundant, and in the current circumstances there is no possibility of any employee being made redundant as a result of what it describes as “the Nurses Dispute.” 11

[38] It submits, in conclusion, the critical nature of the work means teamwork and professional excellence is required from all employees at all times. In this context the various matters raised with Ms Kendall cannot be considered to be trivial or minor in nature. It is accordingly not appropriate for the Commission to interfere in the exercise of its managerial prerogative, and it refers to the decisions of Commissioner Williams in The Australian Workers’ Union v Alcoa World Alumina Australia Limited 12 and Deputy President Sams in Transport Workers’ Union of Australia v TNT Australia Pty Limited13 in support of this submission.

[39] Mr Matt Luddington is employed by MSS as HR/IR Manager Vic/Tas. His evidence indicated he first became aware of issues involving Ms Kendall in April 2014. Further issues were raised later in the year and, following a further issue in December, a meeting was organised with her on 12 January 2015.

[40] Mr Luddington said he was made aware of another issue involving Ms Kendall on 12 February to do with the removal of some first aid statistics from the site. A further discussion was held with her as a consequence. He said he was then made aware of the incident involving Ms Kendall and Ms King, and given its nature sought advice from MSS’s Strategic Medical Clinical Governance Committee about the appropriate approach in response. It was subsequently decided the incident involved a behavioural issue and the letter of 14 January was forwarded to her as a consequence.

[41] His evidence indicated a further letter was then sent to Ms Kendall on 3 March outlining all of the concerns MSS now had about her behaviour and performance. Mr Luddington also attended the meeting on 17 March convened to discuss these issues and confirmed Ms Kendall provided a written response to each allegation at this meeting. He also said she indicated her responses were set out in the written response she had provided and she did not wish to add further comments.

[42] He said it was then decided to carry out some further investigations because a number of statements contained in Ms Kendall’s response conflicted with statements made by other individuals. Those further investigations included discussions with the Canteen Manager, Ms Michelle Cust, and a Team Leader, Mr Rob Timmers, who had observed the splinter incident and Ms Kendall’s behaviour in the emergency response debrief, as well as with Mr Stephen King. He said the nature of Mr King’s responses and subsequent concerns about whether he had falsified his statement then led to further allegations being made about him.

[43] Mr Luddington also said he met with a WorkSafe representative on 21 April in relation to the issues Ms Kendall had raised about alleged bullying by Mr Shields. He provided WorkSafe with details about the current investigations and understood there would be a further follow-up visit after WorkSafe had determined its position. He said he was subsequently advised on 21 May that it did not intend taking any further action.

[44] In response to questions from the Commission Mr Luddington also indicated he was committed to investigating any issues to do with workplace bullying, however, in this case Ms Kendall had not provided him with any substantial examples or elaborated on what her concerns were about issues of this kind that might be impacting on her.

[45] He also attended the meeting with Ms Kendall on 11 May to provide her with the outcome of MSS’s further investigations. He said she was provided with a copy of the investigation outcome letter in those discussions, and declined to provide any comment in response at the time. He subsequently became aware Ms Kendall had approached the Canteen Manager to discuss the letter and was concerned as a result she had breached the confidentiality of the investigation process. A further letter was sent to her outlining these concerns. This issue was then the subject of a dispute notification to the Commission, and in a conference on 5 June MSS accepted Ms Kendall’s explanation about what had occurred and provided her with another letter confirming the matter was closed.

[46] Mr Luddington also said the on-going dispute at the site to do with the engagement of registered nurses was entirely separate to the matters involving Ms Kendall, and the two issues were not related.

[47] Mr Jason Shields is employed by MSS at the Loy Yang site as the Emergency Response and Security Site Manager. He has been in that role for approximately two years. He indicated at the outset in his examination in chief the site has a number of challenging aspects from a management point of view, including the nature of the contract with the client, and the cultural issues with the work group. He said MSS has also taken on the contract at the site with an intention of wanting to introduce new ideas and a new approach, and there was a degree of resistance and/or reluctance from the existing workforce to accept these changes. He acknowledged this changed management process had placed stresses on the work group. He also said Ms Kendall “has been quite a challenging individual to work with,” but had the potential to be a good employee. 14

[48] His evidence indicated various issues were raised with him by other employees about Ms Kendall’s behaviour and performance at different times during 2014. However, after discussions with her, and later with Mr Luddington, it was decided not to pursue these matters any further. However, a series of further incidents then occurred.

[49] Mr Shields said he was in the Fire Station brew room on 23 October when Ms Kendall entered the room, made her way to the fridge, and after making an exasperated gesture with her arms, slammed the fridge door shut and stormed out of the room. He was also involved in a discussion with another employee on 6 December when he was informed Ms Kendall had been unwell during her shift and had spent some time wrapped in a blanket. He said he was concerned a member of staff was at work when they appeared to be unfit for duty, and had concerns about Ms Kendall’s effectiveness in the case of an emergency response. He subsequently discussed the matter with her Team Leader who told him he had spoken to Ms Kendall at the time and she had indicated she was fit for duty. However, Mr Shields continued to have concerns about the incident and forwarded an email to both employees on 10 December highlighting his concerns.

[50] His evidence indicated he was then made aware of an incident involving Ms Kendall in which she had climbed onto the roof of a tanker without any restraints. This occurred on 18 December and was reported to him by the client who considered it to be a safety issue. He said it required a formal investigation and follow-up from him in response. He sent an email to Ms Kendall on the following day and subsequently met with her on 12 January to discuss the issue. He said in those discussions Ms Kendall attempted to distinguish her actions from what the relevant procedure required, and he could not understand why she did not want to provide what he described as “a straight answer about what had occurred.” 15

[51] A further incident emerged during a tool box meeting on 12 January when the discussions quickly became heated and Ms Kendall, in his view, aggressively confronted another employee. Mr Shields said she then left the meeting before it had concluded.

[52] As a consequence of what he described as a “growing number of outstanding behavioural issues” Mr Shields said he discussed the matters with HR with the intention of developing an appropriate response. 16 It was subsequently decided HR would send Ms Kendall a letter highlighting the various concerns about her behaviour and performance. It was hoped by highlighting these issues her behaviour would improve.

[53] Mr Shields’ evidence then made reference to a Toolbox discussion he was leading on 4 February involving discussion about a new eye protection protocol. He said Ms Kendall indicated she was not aware of the protocol, and he asked her to explain how she would manage a foreign body in the eye. He said he was not satisfied with her response and further time was then spent going through the proper protocols.

[54] Then on 10 February Mr Shields said he was walking towards the First Aid Centre when he saw Ms Kendall and another employee leaving the facility with some documents. He entered the Centre and was told Ms Kendall and the other employee had been looking at some first aid statistics. He saw Ms Kendall later in the day and asked what she had been doing. She said she had been looking at the first aid statistics for personal reasons. Mr Shields said he later discovered the client had asked Ms Kendall to collect the statistics. He had no issue with Ms Kendall responding to the client’s request, but did not understand why she had not volunteered this information at the outset.

[55] On 16 February Mr Shields attended a Toolbox meeting led by one of the Team Leaders, Mr Robert Timmers. He said that during the course of the meeting he noticed another employee, Mr Stephen King, appeared to have something in his finger. He said Ms Kendall then turned to Mr King and grabbed his hand and proceeded to probe his finger with what looked to him like a pocket knife/multi-tool. Mr Shields said he was only two feet away from the incident when it occurred. He immediately told Ms Kendall he was shocked she would take such action. He then called her later in the day and said he was going to “near miss” the incident as a breach of proper first aid practice. 17 Mr Shields said he also refuted Mr King’s version and recollection of what had occurred and found him to be evasive about the matter.

[56] Mr Shields denied in cross-examination he had sought to exaggerate the significance of the incident and had no doubt in his mind about what had occurred. He continued to indicate he believed Ms Kendall had probed Mr King’s finger with what he believed to be a can opener, and this had occurred for up to 10 seconds.

[57] Mr Shields said it was then decided in discussions with HR to put a formal letter of allegation to Ms Kendall, which included the issues previously raised in the letter of 14 January, as well as the more recent issues. He subsequently attended the meeting when Ms Kendall provided her written statement in response. Further discussions were then held with a number of employees to obtain statements about their recollection of the events. Mr Shields said he was also present when the outcome of the subsequent investigations was provided to Ms Kendall on 11 May.

[58] Mr Shields said he has not sought to target Ms Kendall or to pursue trivial or minor issues with her, but has instead attempted to address issues concerning what he believed to be inappropriate behaviour and performance in an open and transparent manner, and in accordance with his responsibility to provide and maintain a safe workplace. He also said when he has attempted to raise matters with Ms Kendall in an informal manner she has refused to enter into discussions without a CFMEU representative present, and has been evasive in her answers to questions. He also believes she has failed to take responsibility for her actions.

[59] Mr Robert Timmers is employed by MSS as a Team Leader and has been in that position for three years. However, he has worked at the Loy Yang site for a total of 22 years. He said Ms Kendall has also worked at the site throughout that time. He also indicated in cross-examination his professional relationship with her had deteriorated in the past six or seven years, after he had been required to raise an issue with her about wearing personal protective equipment.

[60] He said he was the Team Leader for an emergency response on 4 January 2015. During the course of that exercise he directed Ms Kendall to come to the open cut control centre as the pilot point from which a response could be provided to the patient suffering from chest pain. However, after encountering the mine pilot vehicle Ms Kendall, along with a pilot vehicle, decided to go down into the mine in contravention of his directive. He immediately contacted Ms Kendall and directed her to come to the open cut control centre. She did then return and from that point the treatment and response occurred as it should have done.

[61] Mr Timmers said a series of debrief discussions then followed to review what had occurred, and in one such meeting on 12 January Ms Kendall got close to Mr Shields face and indicated that was how Mr Timmers had spoken to her during an earlier debrief about the emergency incident response. Mr Timmers said he denied any such exchange had taken place and the meeting ended at that point. Mr Timmers said he believed Ms Kendall’s attitude was inappropriate and unnecessarily aggressive, and she had overstated what occurred

[62] He also indicated in cross examination he had witnessed the incident between Ms Kendall and Mr King involving the splinter and believed it had gone on for around four to five minutes. He also denied he had sought to embellish those events in order to support his Manager.

Consideration

[63] There is at least one thing that the parties in this matter appeared to be in furious agreement about. Their workplace is a difficult one in terms of the relationships and interactions between some of the parties involved. This is emphasised in much of the evidence, including the observations of two witnesses, Mr Dyke on the one hand, and Mr Luddington on the other, who are not employed at the site, but in recent times have been frequent visitors to it.

[64] A number of factors appear to have contributed to this situation. Firstly, a significant proportion of the employees have worked at the site for an extended period of time. As a consequence there appear to be long standing and established practices and attitudes in place. There also appear to be some long standing personal issues between various individuals at the site.

[65] MSS, on the other hand, is obviously new to the site having only taking over the existing contract just over three years ago. It appears to have had its own teething troubles at the site, at least initially, with the evidence indicating a passing parade of nine Managers coming and going from the site in the first 12 months after taking on the contract, until Mr Shields assumed responsibility for that role.

[66] It is also clear MSS wants to implement and introduce, as it is obviously entitled to do, its own approach to the management of the important services it provides at the site. Its evidence also makes reference to the changing demands of its client, including the requirement now for employees with registered nurse qualifications to be employed. MSS clearly wants to satisfy these demands and provide a level of service at the site that ensures it continues to have an on-going contractual relationship with its client. This has clearly been another dynamic impacting on all involved.

[67] As indicated, some of these changes involve the introduction, for the first time, of employees qualified as registered nurses and this appears to have heightened concerns among the existing employees about their job security, and whether their employer’s objective is to perhaps set them up to fail in order to facilitate the introduction and utilisation of these newly engaged employees.

[68] As indicated, these and no doubt other factors and influences all appear to be contributing to a workplace that is to an extent characterised by some difficult and strained relationships in a range of instances.

[69] The submissions by MSS about the Commission refraining from interfering with the legitimate exercise of managerial prerogative are also acknowledged and accepted. In this context MSS makes reference to the decision of DP Sams, in particular, in the decision in Transport Workers’ Union of Australia v TNT Australia Pty Ltd when he stated at [122]:

“That said, the right of the employer to manage the workplace as he/she sees fit, has always been restrained by the caveats that an employee shall not be required to comply with unlawful or unreasonable directions. Of course, the notion of what is reasonable, in any given set of circumstances, is probably the most commonly argued concept in industrial relations. It will mean different things to different people. Nevertheless, the commonly held principle is that the exercise of management prerogative will not be unreasonable, if a reasonable person standing in the shoes of the employer, would or could have made the decision.” 18

[70] This decision and the other authorities referred to by DP Sams in his decision make clear the Commission should not as a matter of course get involved in “second-guessing” decisions made by Managers in the exercise of their managerial responsibilities. They continue to emphasise that the exercise of managerial prerogative should not be considered to have been exercised unreasonably if a reasonable person in the same position could have made the same decision. These authorities are acknowledged, as are the difficulties referred to already about the management of this worksite. However, notwithstanding these considerations I am satisfied the evidence in this matter does suggest some review or reflection about what has occurred is warranted.

[71] In the first place Ms Kendall is a long standing employee at the site and until relatively recent times appears to have had an unblemished record in terms of her work performance and behaviour. The evidence also indicates she has participated in an extensive range of training courses, and obtained a diverse range of qualifications in the time she has been employed as an Emergency Services Officer. Any problems or negative issues to do with her work performance and behaviour accordingly appear to be a relatively recent phenomenon, and not something that has been evident during the overwhelming majority of her working life. This also suggests the issues that have arisen in the past 12 months might be able to be explained by reference to other factors.

[72] Secondly, as MSS acknowledges, some of the incidents investigated in regard to Ms Kendall appear to be relatively trivial in nature, certainly when considered in isolation. Several of the incidents can be considered to fall into this category. They include the following. The July 2014 incident of alleged disrespectful behaviour toward a nurse/ESO, which involved Ms Kendall cupping her ears to avoid listening to other workers, and later listening to the radio during work time. The October 2014 incident when she was alleged to have slammed a fridge door. The December 2014 occasion when it was alleged Ms Kendall remained at work when not fit for duty. The February 2015 incident when Ms Kendall provided statistics she has collected over time to the client at the client’s request and, finally her attempts to obtain information from the Canteen Manager.

[73] In this context it is acknowledged Ms Kendall, along with the other ESO’s at the site, have important responsibilities and are potentially, at any time, likely to be involved in critical emergency response work. The importance of this work and the appropriate adherence, as a consequence, to relevant work practices and procedures should not be diminished or disregarded. However, most of the matters referred to above seem to be more akin to daily occurrences at a robust worksite, rather than examples of performance and behaviour that warrant disciplinary action in response, even when taken together. The fact they have been pursued and deemed to warrant on-going investigation, despite their seemingly innocuous nature, perhaps suggests some form of concerted action directed towards Ms Kendall.

[74] Thirdly, some of the incidents raised in regard to Ms Kendall and investigated, but found to be of little consequence at the time, were subsequently revisited in the March 2015 letter and dealt with again in the 11 May 2015 “investigation outcome” letter. If action in regard to those matters was not considered to be warranted at the time it is difficult to see how it is reasonable for them to then be raised again, in some cases many months later.

[75] It is also noted some of the allegations made against Ms Kendall were subsequently found to be unsubstantiated following the processes of investigation. These include the incidents involving the splinter and the earlier matter to do with the fridge door. Ms Kendall was also commended for her response to the July 2014 incident and the steps she had taken in response to deal with any misgivings about her behaviour.

[76] The February 2015 splinter incident also warrants further comment because of its significance in the context of all the matters raised in regard to Ms Kendall’s work performance and behaviour. This appears to have been, at least for a time, the most significant issue raised against her in terms of its potential demonstration of a failure to observe appropriate procedures and protocols. Much of the evidence in the proceedings dealt with this incident. However, as indicated it was ultimately found by MSS to have been an allegation that was not able, or could not be substantiated, despite seemingly repeated and persistent attempts to challenge and test the recollection of those involved.

[77] The only thing that does emerge clearly from the evidence concerning this incident is the divergence of views about what occurred. The evidence of the two individuals directly involved is that discussion was had about removal of a splinter, and a pocket knife or multi tool was used as part of that discussion by way of pointing and demonstrating. However, the evidence of another observer was that the pocket knife blade was used to penetrate the skin in an attempt to try and remove the splinter, and this continued for up to 10 seconds. By contrast the evidence of another observer suggested these attempts continued for around three – four minutes. The divergence in these accounts suggests that some of this evidence and its veracity can be considered to be questionable and self-serving at best. It is also noted that on-going attempts were then made to challenge the accounts of those involved in an apparent attempt to substantiate the allegations made about Ms Kendall in this incident.

[78] The findings made in regard to other matters, including those described above as being trivial in nature, are also questionable. For example, the December 2014 allegation about Ms Kendall remaining on duty while ill was described in the following way. “MSS considers your behaviour in this instance to demonstrate poor/questionable judgement.” 19 This conclusion was arrived at despite an apparent absence of any objective evidence that Ms Kendall was unfit for duty on that day. The evidence indicates that she was also questioned by her Team Leader on the day and he did not appear to have come to the view she was unfit to remain on duty.

[79] Her behaviour in the January 2015 debrief was also described as “inappropriate.” 20 MSS also concluded it had “further concerns about your attitude, behaviour and judgement”21 in regard to the incident involving the first aid statistics, although this apparently had more to do with her responses when questioned about the incident, rather than her actions in providing the statistics to the client, following the client’s request for the information. The incident involving the eye treatment protocol also appears to be one in which a conclusion was formed about Ms Kendall’s response and state of knowledge, in circumstances where she denied providing that response, or being provided with an opportunity to clarify her response. In addition, her experience and qualifications would suggest she would be most unlikely to have proposed treatment in the way she is alleged to have done.

[80] The December 2014 incident involving Ms Kendall climbing on top of the water tank on the AGL fire truck is one in which Ms Kendall admits she was at fault, although no action appears to have been taken against her at the time of the incident. The intervening Christmas/New Year period appears to have provided some explanation about why this incident was not dealt with in a more contemporaneous way. It was then referred to in the letters of 14 January and 13 March. While the potential significance of this incident is not ignored it is noted Ms Kendall’s explanation for her behaviour made reference to the fact she was suffering from stress and anxiety at the time because of an incident on the previous day involving what she described as a direct attack on her integrity by her Manager.

[81] A review of the events referred to above and the processes surrounding them have led me to the following conclusions. Firstly, there does appear to have been a concerted attempt to target Ms Kendall, over and above what would normally be expected, in an attempt to highlight issues associated with her work performance and/or behaviour. It is unclear why this occurred, but I am satisfied it is a conclusion that can be supported, in particular, by the number of incidents raised in the past 12 months, regardless of their significance, the apparent revisiting of these matters on occasions, and the persistent attempts to find among them what might be described as a “knockout blow” that clearly demonstrated deficiencies in her performance and/or behaviour.

[82] Secondly, this approach appears to have had a compounding impact on Ms Kendall and, as a result, she has become anxious and stressed. She provided evidence in support, which was not challenged, of seeking treatment by a psychologist and being prescribed medication in response. I am also satisfied the stress and anxiety she suffers from have, in turn, impacted on her behaviour and performance at work and caused her to become guarded, defensive, and perhaps even evasive for fear of tripping up or being caught out. As a result these impacts have also likely affected her judgement and good sense.

[83] Reference has been made in Ms Kendall’s evidence to bullying behaviour, although as Mr Luddington’s evidence indicates no formal complaint of workplace bullying has ever been made by Ms Kendall to him. His evidence also indicates if such a complaint had been made it would have been investigated and dealt with appropriately and I have no reason to doubt this. I can also indicate I have not come to any conclusion about the existence or otherwise of this kind of behaviour.

[84] However, as indicated already Ms Kendall’s evidence and actions, including her demeanour as a witness in these proceedings, has led me to conclude the events of the past 12 months have had a significant impact upon her. They appear to have affected her level of self-confidence and led her to become defensive and evasive, particularly in regard to her interactions with management and supervisors. I am also satisfied that during the process of investigating the various matters raised about Ms Kendall MSS should have had regard to how these processes were playing out and impacting upon her, and the way in which she, in turn, was reacting and behaving. I am not satisfied it has done so.

[85] For all of the reasons referred to above I am satisfied this is an occasion when it is appropriate for the Commission to seek to take issue with the exercise of managerial prerogative. I am not satisfied that in an objective sense, in all the circumstances of this matter, a reasonable person in the same position would have made the same decisions as those made in regard to Ms Kendall’s actions and behaviour.

[86] The dispute resolution clause in the Agreement that covers the parties extends to deal with “any matter in the arising in the course of employment.” In this case I am satisfied that the procedure can therefore extend to consider the written warning given to Ms Kendall by MSS in the letter dated 11 May 2015. I am satisfied, based on the conclusions referred to above, that the decision to provide her with a written warning should be treated as having been withdrawn and removed from her personnel record.

[87] However, in two further respects I am not prepared to make any further determinations. Firstly, I am not prepared to take any action in regard to the decisions made by the Clinical Governance Committee in regard to Ms Kendall as I consider it is dealing with medical and related conditions that extend beyond the scope of the Commission’s ability to review. However, the Committee may decide to review its position in regard to Ms Kendall in the light of this decision. That is a matter for it.

[88] Secondly, I am not prepared to make any orders of the kind referred to in the application related to MSS allegedly acting to target the Emergency Service Officers for redundancy or dismissal. The evidence in these proceedings has been overwhelmingly about the circumstances involving Ms Kendall. I am not satisfied it enables any conclusion to be reached about the existence of some form of concerted action to target the existing Emergency Service Officers as a group for purposes related to redundancy/dismissal.

[89] I also emphasise again that the evidence in this matter was overwhelmingly concerned with the issues involving MSS and Ms Kendall and my conclusions are essentially confined to and based on that evidence. The conclusions I have come to also do not mean Ms Kendall now starts with a “clean sheet” in regard to her employment with MSS. The incident involving the fire truck, in particular, has been acknowledged by her to be in breach of relevant procedures, despite the matters put forward by her in explanation of her behaviour. Any repetition of similar behaviour in the future may therefore result in appropriate and proportionate responses from her employer.

[90] It is also suggested as a footnote in conclusion that this decision should not be seen to be a “win” for one party or the other. I have acknowledged in the decision that this is a difficult worksite for a variety of reasons. The evidence also indicates MSS is trying to introduce some new practices and procedures to the site, in response to both the demands of its client, and what it believes contemporary needs require. It is entirely appropriate for it to act in this way. It is to be hoped all involved can now try and work constructively to effectively and efficiently deliver the services MSS is contracted to provide, and which are so vital to all involved at the site.

COMMISSIONER

Appearances:

Alex Bukarica appeared on behalf of the Applicant.

Martha Travis appeared on behalf of the Respondent.

Hearing details:

2015.

Melbourne:

6 & 7 August.

 1   AE895899 at Clause 24

 2   Ibid at Clause 24.1 (a)

 3   Ibid at Clause 6.9

 4 F10 lodged 17 March 2015 at Question 7

 5   Exhibit CFMEU1 at para 8-9

 6   Ibid at para 3

 7   Exhibit CFMEU5 at Annexure H

 8   Transcript at PN236

 9   Exhibit CFMEU4 at para 5

 10   Ibid at para 10

 11   Transcript at PN38

 12   [2012] FWAA 9222

 13   [2013] FWC 7880

 14   Transcript at PN563

 15   Exhibit MSS2 at para 26

 16   Ibid at para 33

 17   Ibid at para 54

 18   Above n.xiii at [122]

 19   Above n.vii

 20   Ibid

 21   Ibid

Printed by authority of the Commonwealth Government Printer

<Price code C, AE895899  PR572711>