Elizabeth Bruhn v Austin Health

[2011] FWA 971

Note: An appeal pursuant to s.604 (C2011/3552) was lodged against this decision - refer to Full Bench decision dated 30 May 2011 [[2011] FWAFB 3363] for result of appeal.

[2011] FWA 971

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.170LW - pre-reform Act - Application for settlement of dispute (certified agreement)

Elizabeth Bruhn
v
Austin Health
(C2010/4119)

COMMISSIONER GOOLEY MELBOURNE, 16 FEBRUARY 2011

Alleged dispute in relation to bullying, performance management and use of disciplinary processes.

[1] Ms Elizabeth Bruhn notified a dispute to Fair Work Australia about alleged disciplinary action taken by Austin Health. The matter was referred to conciliation on 21 July 2010 but the matter was not resolved. On 28 July 2010 Ms Bruhn applied for an order that Austin Health produce documents to enable her to decide whether to proceed to arbitration. Austin Health opposed the issuing of the summons and a hearing was held on 31 August 2010.

[2] Mr Daniel Zeman a legal practitioner appeared with permission for Ms Bruhn and Mr Keith Gogel appeared for Austin Health.

Background to the dispute

[3] On 30 March 2010 Austin Health issued Ms Bruhn with a letter from Mr Shane Crowe, the Acting Executive Director, Ambulatory and Nursing Services outlining his concerns about her performance. That letter advised Ms Bruhn of a meeting to be held on 1 April 2010 and further advised that at the conclusion of the investigation Austin Health would consider whether a disciplinary sanction was necessary.

[4] Ms Bruhn notified Austin Health on 5 May 2010 that she disputed the content of the letter and claimed that Austin Health had failed to follow its performance management policy. She also lodged a formal complaint of bullying against Mr Crowe.

[5] On 6 May 2010 Ms Ann Maree Keenan, Executive Director, Ambulatory and Nursing Services wrote to Ms Bruhn and advised that her complaint would be investigated but reiterated the intention of Austin Health to meet with her upon her return to work to discuss the matters raised in the 30 March 2010 correspondence.

[6] On 14 May 2010 Ms Bruhn lodged the particulars of her complaint against Mr Crowe.

[7] That complaint was investigated and on 21 May 2010 a report was published which found that the complaint was not substantiated.

[8] On 1 June 2010 Ms Bruhn raised her complaint with the Chief Executive Officer of Austin Health and made a new complaint against Ms Keenan.

[9] On 8 June 2010 the Chief Executive Officer responded and advised Ms Bruhn that Austin Health wished to meet with her to discuss issues about her performance and determine whether disciplinary action was necessary.

The dispute

[10] Ms Bruhn then notified Fair Work Australia of a dispute over clause 11.11 of the Nurses (Victorian Public Sector) Multiple Employer Agreement 2007-2011 (the Agreement).

[11] She described the dispute as follows:

“1. The Applicant was the subject of unfounded, improper and/or misleading performance management by senior employees of the Respondent (see performance management letter attached). The Applicant raised a grievance with the Respondent regarding her treatment, which she alleged in all the circumstances constituted bullying, and requested that her bullying allegations be properly investigated (see letter of complaint attached).

2. Notwithstanding the raising of that grievance and the bullying allegations, the Respondent persisted with its performance management processes, in direct contravention of clause 11 of the Nurses (Victorian Public Sector) Multiple Employer Agreement 2007-2011, and even continued bullying and victimising the Applicant, including using demeaning treatment and language against her (see letter attached).

3. When the bullying allegations were eventually investigated, the Respondent’s investigating officer’s report acknowledged the poor manner in which the Applicant had been treated and misled but, curiously, dismissed her complaint of bullying given that in the absence of any witnesses to the conduct in question, it could not be corroborated (see report attached).

4. Having unsuccessfully attempted on a number of occasions to resolve her grievance with the Respondent at the workplace level (including to the CEO - see correspondence attached), the Applicant has no choice left but to apply to Fair Work Australia to deal with her dispute with the Respondent over its use of performance management and disciplinary processes against her.”

The Industrial Instrument

[12] The Agreement provides at clause 11 for the resolution of disputes. It provides that a dispute or grievance about a matter arising under this Agreement, other than termination of employment, must be dealt with in accordance with this clause.

[13] The Agreement provides at subclause 11.7 for the dispute or grievance to be referred to conciliation. If conciliation does not resolve the dispute or grievance, then subclause 11.8 provides that the Commission may determine the dispute or grievance by arbitration.

[14] The Agreement provides at subclause 11.11 for discipline and provides as follows:

“(a) Where disciplinary action is necessary, the management representative shall notify the Employee for the reason. The first warning shall be verbal and will be recorded on the Employee’s personnel file. A union or other representative shall be present if desired by either party.

.....

(f) If a dispute arises over any disciplinary action instigated against an Employee by a management representative, the course of action to be followed shall be in accordance with clause 0.

..... “

[15] It is accepted that clause 0 is an omission and the reference is to clause 11.

Jurisdiction of Fair Work Australia

[16] It is not disputed that the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) provides Fair Work Australia with the jurisdiction to deal with this dispute.

[17] Consequently Fair Work Australia exercises jurisdiction pursuant to section 170LW of the Workplace Relations Act 1996 as it stood prior to 26 March 2006 (the WR Act).

[18] However as the matter has not been referred for arbitration, the issue of whether Fair Work Australia had jurisdiction to deal with the dispute as notified was not addressed.

The hearing

[19] Mr Zeman submitted that the documents sought by the summons were necessary for Ms Bruhn to determine if she should seek arbitration of this matter. He submitted that all the documents were relevant.

[20] Mr Gogle submitted that Ms Bruhn already had sufficient information to determine whether to proceed to arbitration and submitted that the documents sought were not relevant to the matters to be determined.

[21] At the hearing of this matter Austin Health advised Fair Work Australia that they no longer relied upon the paragraph in Mr Crowe’s letter of 30 March 2010 which advised Ms Bruhn that disciplinary action may be taken.

[22] Austin Health advised Fair Work Australia that upon Ms Bruhn’s return to work Austin Health intended invoking clause 2 of their procedure for addressing unsatisfactory performance which provides as follows:

“2. Counselling

2.1 Arrange a meeting with the employee to discuss their performance,

2.2 At the meeting:

2.2.1 Counsel employee and explain the consequences of continued unsatisfactory performance;

2.2.2 Formulate an action/development plan designed to assist the employee to satisfy performance requirements;

2.2.3 Set date for review (usually no longer than 4 weeks hence); and

2.2.4 Provide support and assistance to employee and monitor performance.

2.3 Meet as arranged and at this meeting:

2.3.1 Provide performance feedback;

2.3.2 Clarify any remaining performance deficiencies: and

2.3.3 Set date for further review if necessary.

2.4 Continue this process of monitoring and review until satisfactory performance is achieved.

2.5 If satisfactory performance is not achieved within a reasonable timeframe, proceed to stage 3 of this procedure.”

[23] As a consequence of this decision by Austin Health I raised with the parties whether there was still a dispute or grievance about a matter arising under the Agreement.

[24] Directions were issued for the filing of submissions on this issue.

Submissions of Elizabeth Bruhn

[25] Ms Bruhn submitted that subclause 11.11 provides Fair Work Australia with the power to deal with any dispute over any disciplinary dispute instigated against an employee. 1 However the words used in the Agreement are “any disciplinary action”.

[26] It was submitted that once such a dispute arises the Tribunal has the jurisdiction to deal with the dispute and that includes the power to compel the production of documents pursuant to section 111(1) (s) of the WR Act.

[27] It was submitted that the expression any disciplinary action should include any steps/processes taken under the umbrella and/or direct threat of disciplinary outcomes constitutes “disciplinary action” for the purpose of paragraph 11.11(f).

[28] It was submitted that the 30 March 2010 letter set off the disciplinary process. Ms Bruhn raised a grievance about the process and when that was not resolved to her satisfaction she notified a dispute to Fair Work Australia. Once that occurred, jurisdiction, it was submitted, was conferred on Fair Work Australia and that jurisdiction was not lost because Austin Health had resiled from the letter of 30 March 2010.

Submissions of Austin Health

[29] Austin Health submitted that a dispute can only arise when the employer has decided to issue a disciplinary warning or to terminate the employment of an employee. 2 It was submitted that the processes which lead to that decision are not dealt with in the Agreement.

[30] Austin Health submits that as paragraph 1.11(a) of the Agreement has not been activated then paragraph 11.11(f) cannot be activated.

[31] Further, Austin Health submitted that only disputes or grievances about a matter arising under this agreement are able to be dealt with under clause 11 of the Agreement and it was submitted that as no such dispute about the application of subclause 11.11 arises in this case, then no jurisdiction exists.

The nature of the dispute

[32] R v Bain; Ex parte Cadbury Schweppes Australia Ltd 3 Murphy J when considering whether the Australian Industrial Relations Commission had power to make an award in settlement of a dispute said this about the nature of disputes:

“Thus an industrial dispute may be diminished or ended or enlarged or altered during the course of the proceedings in the Commission.”

[33] In United Firefighters’ Union of Australia and Metropolitan Fire and Emergency Services Board 4 a Full Bench of the Australian Industrial Relations Commission referred to this statement of Murphy J and said: “Although that comment was made in the context of an “industrial dispute” within the meaning of s.4 of the Industrial Relations Act 1988, it is equally applicable to a dispute notified pursuant to a dispute settlement procedure in a certified agreement.”

[34] The dispute before the Tribunal relates to disciplinary action that has been instigated by Austin Health against Ms Bruhn. However that dispute is not static and the dispute can be ended during the course of the proceeding before Fair Work Australia.

Conclusion

[35] I have formed the view that the dispute as notified by Ms Bruhn no longer exists.

[36] While I accept that at the time Ms Bruhn notified the dispute to Fair Work Australia there was a real dispute about whether Austin Health had instigated disciplinary action, at the hearing it was clear that Austin Health had resiled from its original course of action and was intending arranging a meeting to discuss Ms Bruhn’s performance. Performance management procedures are not provided for in the Agreement and therefore a dispute about their application is not a dispute over the application of the Agreement.

[37] While I accept that Ms Bruhn may be aggrieved about the process followed by Austin Health that resulted in the letter dated 30 March 2010 and she may be aggrieved about the findings of the investigation into her bullying complaint, those matters are not matters that arise from subclause 11.11 of the Agreement. A dispute over subclause 11.11 can only arise when Austin Health has decided that disciplinary action is necessary. As no such disciplinary action has been held to be necessary, no dispute can arise about it and therefore Fair Work Australia does not have the jurisdiction to issue the summons.

[38] Even if jurisdiction existed I would decline to exercise my discretion to issue the summons.

[39] Section 111(1)(s) of the WR Act provided the Commission with the power to:

“(s) summon before it the parties to the industrial dispute, the witnesses, and any other persons whose presence the Commission considers would help in the hearing or determination of the industrial dispute, and compel the production before it of documents and other things for the purpose of reference to such entries or matters only as relate to the industrial dispute;”

[40] Section 111(2) provided as follows:

“(2) Unless the context otherwise requires, a reference in this section (except subsection (1AA)) to an industrial dispute includes a reference to any other proceeding before the Commission (whether under this Act, the Registration and Accountability of Organisations Schedule or otherwise).

[41] It is clear the power to compel the production of documents is discretionary.

[42] In The Queen v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation,² Justice Mason, as he then was, discussed the use of the discretion to issue a summons and said:

“When application is made for the issue of a summons the Commission has discretion to grant or refuse it. Generally speaking, the Commission will exercise its discretion in favour of the applicant unless it appears that it would be vexatious or frivolous or otherwise an abuse of process to issue the summons.”

[43] The approach the Commission has adopted in relation to the exercise of its discretion is conveniently summarised by Justice Munro in the Clerks (Alcoa) case [Print H2892] as follows:

“The Commission’s power to issue a summons for production of documents or information is to be found in section 41(1) (n) of the Conciliation and Arbitration Act 1904 and Regulation 21 of the Conciliation and Arbitration Act Regulations. Sections 186 and 187 of the Act are relevant, allowing the direction of evidence in certain cases, and prescribing for the inspection of documents produced pursuant to summons mandatory in the sense of giving any person, intervenor or party a legal right to require, as it sees fit, production of documents or attendance of witnesses.

In its exercise of a broad discretion and judgement over use of the power, the Commission will have regard to practice followed in courts of law where a judicial discretion has been applied to regulate use of a subpoena to produce document. Any such subpoena must specify with reasonable particularity documents which are required to be produced. It may be sufficiently specific to identify documents to be produced by reference to the subject matter to which they relate. In the case of a corporation, it is usually appropriate, where the custodianship of documents is not clear, to direct the subpoena to the `Proper Officer’. It is not legitimate to use a subpoena for what, in effect, would be discovery of documents against a person not liable to make discovery, or as a substitute for discovery which should be applied for at the proper time. The documents sought must be of a nature capable of being relevant to an issue which might legitimately arise on the hearing of the matters in dispute. In the first instance the documents are produced to the tribunal upon whom it falls to examine the documents, assess their relevance and determine what access by the parties to the documents may be appropriate; (section 187 of the Act appears to be the statutory counterpart of this principle of practice). A party will not be required to produce documents where to do so would be oppressive; or where the demand for production is a `fishing expedition’, in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all. Where the proper use of legal compulsion to produce documents is in issue, the tribunal will need to carry out an exercise of judgement upon the particular facts in each case. That judgement requires a balance on the one hand of the reasonableness of the burden imposed upon the recipient, and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and in ensuring that all material relevant to the issues be available to the parties to enable them to advance their respective cases.”

[44] In this matter conciliation is at an end. The matter has not been referred to arbitration. What is being sought by the summons is access to documents to enable Ms Bruhn to make an informed decision about whether to proceed to arbitration. In effect, the summons is sought to enable Ms Bruhn to determine if she has a case at all and I do not consider it is appropriate in these circumstances to issue the summons.

[45] The application for a summons is therefore dismissed.

COMMISSIONER

Appearances

D Zeman for Elizabeth Bruhn.

K Gogel for Austin Health.

Hearing details:

2010.

Melbourne:

August 31.

 1   Submissions of the applicant at [8]

 2   Submissions of the respondent at [5]

 3 (1984) 159 CLR 163 at [12]

 4   PR973884

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