Fariba Daniel v Hurstville Community Private Hospital
[2010] FWA 906
•30 MARCH 2010
[2010] FWA 906 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Fariba Daniel
v
Hurstville Community Private Hospital
(U2009/11308)
COMMISSIONER LARKIN | SYDNEY, 30 MARCH 2010 |
Termination of employment – arbitration – misconduct – summary dismissal – application dismissed.
[1] On 17 August 2009 Ms Fariba Daniel (the applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against Hurstville Community Private Hospital (the respondent).
[2] The applicant was employed by the respondent in the position of Registered Nurse from 16 July 2007 to her dismissal by letter of termination dated 4 August 2009.
[3] On 27 August 2009, the respondent filed Form F3, Employer’s Response to Application for Unfair Dismissal, which stated:
“The Applicant was terminated in writing on 4 August 2009 after repeatedly failing to report for work on shifts allocated to her.”
[4] The matter was listed for the purpose of conciliation on 2 September 2009. The matter was not settled on that occasion.
[5] It is appropriate at this point to address some points raised by the respondent in written submissions filed after the hearing of the matter. The matter was listed for the purpose of hearing argument in relation to summons for the production of material sought by both parties on 16 November 2009. On that occasion no material was tendered and marked by the Tribunal. During the proceedings I made a number of rulings in relation to material to be produced. On my understanding that material was produced and it remained for the parties to seek to tender any material arising from the summons that they wished to put before the Tribunal. After the hearing on 16 November 2009 the parties did not raise with me any concern in relation to material that was subject to the amended summons to produce.
[6] The matter was listed for hearing before me on 11 December 2009 with written submissions filed on 22 December 2009, 15 January and 22 January 2010.
[7] Mr Moorhouse, of counsel, appeared with permission on behalf of the applicant. Mr Borrow, solicitor, appeared with permission on behalf of the respondent. The following witnesses gave evidence during the proceedings:
On behalf of the applicant | |
Ms Daniel | The applicant. |
On behalf of the respondent | |
Ms Tautai | Nursing Unit Manager, Medical (Mallard) and Surgical (Figtree) Wards, until December 2008 (no longer an employee with the respondent). |
Mr Gillespie | Director of Nursing until July 2008 (no longer an employee with the respondent). |
Ms Scotti | Operations Manager. |
BACKGROUND
[8] As stated, the applicant commenced as a Registered Nurse with the respondent on 16 July 2007 as a casual employee within the Surgical/Medical Department. 1 On 8 October 2007 the applicant was appointed as a full time Registered Nurse 8th year thereafter working 76 hours per fortnight.2
[9] The applicant stated that in December 2007 she was offered the position of Director of Nursing or Director of Care with another health care organisation, Wybenia Gardens. The applicant approached Mr Gillespie, who at that time was Director of Nursing with the respondent company and advised him that the new position would involve her working Monday to Friday 0900-1700 hours and, therefore, she could only work weekend shifts for the respondent. Mr Gillespie requested that the request be put in writing, which the applicant did on 28 December 2007 as follows:
“Dear Shaune
Re: Reduce of hours and request for permanent weekend shifts (Saturday Morning & Sunday Afternoon)
Further to our conversation this morning in relation to the above mentioned matter, please be advised that I will only be available to work Saturday morning and Sunday afternoon effective from 14.01.2008.
It is much appreciated if you could let me know in the next few days whether or not I could have the above mentioned shifts so that I could make the necessary arrangement regarding my new shifts.
Kind regards,
Fariba Daniel.” 3
[10] On 31 December 2007 the applicant was issued with a variation of contract of employment document, which stated hours as 16 hours per week effective 14 January 2008. The applicant was then employed as a permanent part time employee within the Medical/Surgical Unit. From 14 January 2008 the applicant worked Saturday and Sunday shifts. Her shifts were mainly in the Medical (Mallard) Ward. 4
[11] The applicant commenced her new position with the other organisation as Director of Nursing on 14 January 2008.
[12] In July 2008 Mr Gillespie resigned from his position with the respondent. Ms. Tautai resigned sometime in November/December 2008.
[13] Ms Scotti commenced with the respondent as Operations Manager 1 October 2008.
[14] On the applicant’s evidence, 5 she had a telephone conversation with Ms Scotti in February 2009, in relation to attending an interview for the position of Nursing Unit Manager. The applicant formally advised Ms Scotti and Ms Dodd, Chief Executive Officer, of her decision as follows:
“Dear Julie/Louise
Thank you very much for inviting me to attend an interview on 9th February 2009 at 1730 hrs, for the position of Nursing Unit Manager. Clearly, this is a prestigious position at a successful organization such as Hurstville Community Private Hospital.
However, after long and careful consideration I have decided not to accept your offer because of my current commitments.
Thank you again for your offer. I was very flattered to receive it. At this stage, I would like to continue with my current position as Registered Nurse on weekend but I would like to use this opportunity to express my interest in the position of after hours manager when the position becomes available.” 6
[15] On 30 June 2009 the respondent forwarded formal notification to employees that, due to the circumstances outlined in the notification, the Mallard Ward was to close.
[16] On 5 July 2009 the applicant forwarded the following to Ms Cavanagh, who was responsible for rosters:
“Ms Naomi Cavanagh (Nursing Unit Manager)
Hurstville Community Private Hospital
Dear Naomi
Re: Closure of Medical ward and possibility of working in Figtree ward
I refer to my telephone conversations with Ms. Louise Dodd last week regarding closure of Mallard Ward and the possible opportunity to work in Figtree ward. I informed Louise that I would be happy to work at Figtree ward as long as I get the exact shifts/hours that I am doing currently in Mallard Ward. Louise said that she has informed you of the same and she asked me to talk to you to find out whether it is possible for you to accommodate me in Figtree roster. My current hours are Saturday and Sunday afternoon 1300-2130 hrs.
I appreciate your prompt response as I need to know my position as soon as possible so that if you are not able to offer me the shifts then I have to start looking for job elsewhere. Please contact me on ……..to discuss the same.
Yours faithfully
Fariba Daniel.” 7
[17] Ms Dodd, referred to in the applicant’s correspondence above, is the Chief Executive Officer. Ms Dodd did not give evidence during the proceedings.
[18] Mr Scotti forwarded the following correspondence to the applicant. The correspondence was dated 8 July 2009, however, the applicant’s evidence was that she received it 16 July 2009. 8
“Ms F Daniel
…
Dear Fariba,
Re: Offer of contracted hours of employment
Further to our telephone conversation and your request, I provide in writing to you the offer from Hurstville Community Private Hospital.
The unexpected closure of the Medical Ward was conveyed to you by a personalised phone conversation from Louise Dodd, Chief Executive Officer as well as a letter attached to your payslip.
Your contracted hours are currently 16 hours per week.
Previous to this you were employed at Hurstville Community Private Hospital (HCPH) on the 08/10/2007. You were contracted for 76hrs per fortnight with the place of appointment being the Medical/Surgical Ward.
You wrote to Mr. S Gillespie the then Director of Nursing on 28/12/07 requesting a reduction in your contracted hours.
Mr. Gillespie agreed and you signed your new contract of employment which became effective from 14.01.08 stating that you are contracted to work 16 hours per week.
Please note your contract is for the number of hours per week, not set days or shifts.
As discussed I am not able to offer you the days that you have previously worked anywhere else in the hospital at this time.
I can however offer you 16 hours per week in the Surgical Ward.
All staff employed at HCPH are on a contracted hourly basis, as per the Private Hospital Nurses’ and Midwives Award and the Enterprise Agreement 2006-2008.
Would you please indicate your interest in accepting the offer made to you by HCPH, for your contracted 16 hours in the Surgical Ward by close of business on Wednesday 15/07/09.
I enclose a copy of your current contract of employment for your records.” 9
[19] On Ms Scotti’s evidence 10 she had a number of conversations with the applicant in the period 8 July to 17 July 2009, in relation to the issue of her shifts. The applicant in her statement also refers to conversations she had with Ms Scotti and messages left on Ms Scotti’s telephone.11
[20] In Ms Scotti’s affidavit she refers to her conversation with the applicant on 16 July 2009 as follows:
“On 16 July I telephoned the Applicant and made a file note of the conversation which is attached to this affidavit and marked “Annexure J”.
The Applicant called back later that day and left a message on my voice mail stating that she had sent a letter to Ms Cavanagh on 5 July 2009, which had not been responded to, and that the letter I sent to her had the incorrect date on it. I made a file not of this conversation which is attached to this affidavit and marked “Annexure K”.
After this, I called the Applicant twice. The first call was at 1.58pm. I did not leave a message. The second call was at 2.05pm during which I conveyed the following:
• She had a personal call from the CEO and a letter on her pay slip, that I had called her twice with no response and sent her a letter of offer;
• I found it difficult because she would not allow me to send the letter to her home or work and that due to operational reasons that she would not be required to work on the Saturday or Sunday (18 and 19 of July 2009) of this weekend as the Mallard Ward was closed;
• I had changed the roster so that she could work 16 hours on Wednesday 22 and Thursday 23 July. This would consist of 8 hours of night duty shifts that ran together as that was where there was a staff shortage and the shifts were following each; and that,
• I had given her 24 hours notice of the change of her roster.
The Applicant replied:
‘You have not given me 24 hours notice. You left the message at 2.05pm and my shift starts at 1.00pm.’
I said words to the effect:
‘Fariba, you know that the shifts on Figtree start at 2.15pm and have for a long time’.
She said:
‘My shift starts at 1.00 o’clock’.
I said:
‘No Fariba. The shift starts at 2.15pm and you know that is the case as you have worked on the ward before. I even left the message on your phone as to what time the shift starts’.
I then said:
‘If you are refusing to come to work then we have a dispute. I have offered you these shifts and you are refusing to work them. There is a disputes clause in the EBA and award that covers you if you wish to pursue this’.
The Applicant sounded very angry and shouted at me through the telephone:
‘What you offer me is not an option and you know very well that I can’t work any other shifts but Saturday and Sunday, because I have another job. Saturday and Sunday are permanent shifts and Shaun Gillespie told me that I could have them because I work somewhere else’.
I replied:
‘But Fariba, the shifts that you had no longer exist. The ward is closed and I do not have the same days available, but I can offer you the same hours’.
She angrily terminated the telephone discussion”. 12
[21] In the applicant’s statement, at paragraphs 20 and 21, I assume she is referring to the above conversation, albeit in slightly different terms but the thrust of the discussion is the same.
[22] On 17 July 2009 Ms Scotti forwarded the following correspondence to the applicant:
“Ms F Daniel
P.O……
Dear Fariba,
As you are aware we have closed the Mallard Unit. This has in turn caused a change in the operational requirements of this hospital.
Due to these changes and my obligation to satisfy the needs of the organisation and based on the operational requirements I am directing you to the following:
1. You will not be required to work the shifts on Saturday 18th and Sunday 19th July.
2. I have re allocated your shifts of 8 hours to
A. Wednesday night 22nd July of 8 hours shift
B. Thursday night 23rd July 8 hour shift.
This letter follows a call that I made to your mobile at 1.58 pm today. A message was left on your mobile at 2 pm today 17 July 2009. Present in my office at the time was Ms L Dodd the Chief Executive Officer. I have also requested that you call me to clarify that you received my message and understood that your shifts have been changed.
Please note that I cannot send or have the letter couriered to your home address as you have not supplied it our (sic) Human Resource Department.” 13
[23] On the 20 July 2009 the applicant forwarded a facsimile transmission to Ms Dodd, which in part stated:
“I refer to Mrs. Scottie’s letter dated 8 July 2009 which I received on 16 July 2009. Her letter was sent on the 15/7/09 and received on 16/9/09 (sic). Firstly it is misleading and deceptive to send a letter with an incorrect date, if the letter was written on the 8 July 2009 one questions the reasoning for Ms. Scottie’s delay to deliver the letter either in person on the days I worked for my collection 11 or 12 of July 2009. Further to delay on the 14 July 2009 Jessica from HCPH whom called me that day asked me for my address in order to send Mrs. Scottie’s letter to me by courier/express mail on the day. However, the express mail was never conducted.
I received Mrs. Scottie’s letter by ordinary mail on 16.7.09 which was supposed to have a copy of my contract attached to it as per the letter however, there was no attachment. After receiving the letter in the morning on 16/7/09 Mrs. Scottie rang me few hours later to ask if I had received her letter and she told me that I had to give my answer as soon as possible and I told Mrs. Scottie that I received her letter the same day and I needed time to response (sic) to it.
In my telephone conversation with you I was told that I could work in the surgical ward (Figtree), or if I decided not to work there then I would be offered a redundancy package. (In the mentioned regard, I am ready to provide statutory declaration about the content of our telephone conversation). As mentioned to you over phone I stated I would be happy to work in Figtree as long as I can work the same shift/hours as I have been doing over the last 19 months. In response you said that you would talk to Ms Naomi Cavanagh the Nursing Unit Manager of Figtree about my hours to see if could accommodate the same that she would get back to me. Which we left at that.” 14
[24] The applicant continued that as she had not heard from Ms Cavanagh she contacted her and was advised that she, Ms Cavanagh, was waiting to get other staff requests and at the end of the week would decide if she could accommodate the applicant in Figtree (Surgical Ward). The applicant continued and outlined her conversation with Ms Scotti where she was advised that the respondent could not accommodate her requested shifts and her responses to Ms Scotti. The applicant reiterated her position that she was not able to work shifts other than Saturday and Sunday due to her other work commitments. The applicant concluded by stating that Ms Scotti had basically terminated her employment without the required legal procedure and that she, the applicant, had advice that she was entitled to a redundancy or her weekend shifts.
[25] On 23 July 2009 Ms Scotti acknowledged the respondent’s receipt of the above correspondence and disputed the applicant’s “assertion”of redundancy or her termination. Ms Scotti outlined the respondent’s view of the matter and concluded:
“In the circumstances we are entitled to expect that you will report for duty as directed on your next allocated shift, commencing Thursday July 30th @ 1400hours. Your following shift allocation will be Friday July 31st @ 1400hours.
Please call the undersigned should you wish to discuss this matter.” 15
[26] The applicant replied to Ms Scotti’s correspondence above on 27 July 2009 outlining her previously stated position and that she had a verbal agreement to work the shifts she had been working. She stated that the offer put by the respondent was the “same diversion, justification and fake offer which I have already, mentioned above.” 16
[27] By correspondence dated 28 July 2009 Ms Scotti acknowledged the applicant’s correspondence above and reiterated the direction to attend work for the shifts Thursday 30 and Friday 31 July.
[28] The applicant did not attend for work on Thursday 30 or Friday 31 July 2009.
[29] On 31 July 2009 at 9.28am the application forwarded the following by facsimile transmission to Ms Dodd:
“The reason why, I am sending you this communication is that because your operational manager (Ms. Julie Scotti) does not understand my language. Number of times, I told her that my shifts are weekend shifts, that was the shift I obtained it from previous management and I continued until the new management recently closed the ward.
I told her do not offer me any other shifts during the week days, because I am not available, but still she is repeating herself. I told her that, if you can not offer me my shift then due to closure of your ward, I am redundant and then the case is closed. Please, I do not want to deal with her concerning my situation. I do not mind to deal with you or some one else in order for settling my situation with your organisation.
For your information, with this Fax, I enclose my last communication with Mrs. Julie Scotti.” 17
[30] The Letter of Termination, dated Tuesday 4 August 2009, stated:
“Dear Fariba,
You have been advised that due to the closure of the Medical Ward at Hurstville Private that the weekend shifts you have been allocated in the past are no longer available and that you would in future be rostered according to current operational requirements.
I am aware that you have had several conversations with Ms Julie Scotti, Operations manager, regarding the availability of shifts at Hurstville Private and your continuing refusal to report for work as required.
Notwithstanding the adequate notice provided to you before the commencement of each shift you failed to provide the hospital of advanced warning of your inability to attend, and indeed, failed to do so afterwards.
We have pointed out in earlier correspondence that the closure of the Medical Ward has not severed your employment arrangement. You continue to enjoy the same contractual entitlements and the re-rostering is at the same facility.
The directive for you to attend work as rostered is both lawful and reasonable, and your failure to do so leaves me with no other alternative than to terminate your employment with immediate effect.
Any accrued entitlements owed to your termination will be paid within the current pay cycle.
Regards,
Louise Dodd
Chief Executive officer.” 18
[31] The applicant seeks reinstatement.
CONSIDERATIONS
[32] Section 387 of the Act provides:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.”
[33] In a determination of the matter before me I am required to have regard to the above paragraphs of s.387 of the Act, where relevant to the issue. In arriving at a decision in the matter I will not address and/or refer to all the material before me. I have, however, had regard to that material where relevant to the issue I must determine.
[34] The applicant was terminated for the reason that she failed to attend work for shifts, on Thursday 30July 2009 at 14:00 hours and Friday 31 July 2009 at 14:00 hours, following a direction from the respondent to do so. The applicant was summarily dismissed for misconduct. The applicant maintains that the direction was not a lawful and reasonable direction.
[35] The applicant believed and still believes that she had an entitlement to permanent fixed weekend shifts with the respondent in accordance with her conversation and agreement with Mr Gillespie in late December 2007.
[36] As Mr Moorhouse put it, “through all of this, Commissioner, it’s our case that the hospital well knew that the applicant would be working full time elsewhere and as a practical matter couldn’t work during week days and was not available for week day work”. 19 Mr Moorhouse stated that the respondent’s direction to the applicant to attend the shifts allocated, which were week day shifts, was not reasonable in the circumstances and, therefore, there was not a valid reason for the termination. As such, Mr Moorhouse stated, the termination was harsh, unjust and unreasonable.
[37] Mr Borrow submitted 20 that the applicant, following her verbal request to Ms Taitau and verbal representation to Mr Gillespie, made a written request for preferred hours of work on Saturday and Sunday. It was submitted that Ms Taitau and Mr Gillespie advised the applicant that, although her request would be accommodated, there was no guarantee of fixed shifts and that the respondent reserved the right to change her shifts in line with the needs of the business in the future. The contract variation signed on 31 December 2007 did not make special provision for permanent fixed shifts and the applicant’s initial contract provided for flexibility. With the closure of the Mallard Ward for bona fide operational reasons, the applicant’s programmed shifts for 18 and 19 July 2009 were cancelled and she was offered night shifts on Wednesday and Thursday 22 and 23 July 2009, which she declined to attend. The applicant was offered afternoon shifts on Thursday and Friday 30 and 31 July 2009, which she declined. The applicant concealed the details of her alternative work engagement, which she knew was to conclude. Mr Borrow submitted that: “[t]he applicant made it abundantly clear during cross examination that she would not have accepted any of the shifts she failed to attend in that time because they were outside of those she claimed were guaranteed as fixed, permanent weekend shifts”.21
[38] The applicant was permanent part-time and employed for 16 hours on Saturday and Sunday shifts for approximately 18 months from January 2008.
[39] In December 2007, when the applicant requested a change in her employment status from full time to part time hours, Ms Taitau and Mr Gillespie were fully aware that the applicant would be unavailable to work shifts with the respondent during the week, Monday to Friday.
[40] Mr Gillespie, in his evidence, acknowledged that in his conversation with the applicant in December 2007 she explained to him that her new position required her to work Monday to Friday and that she would only be available Saturday and Sunday. Mr Gillespie also acknowledged that he was aware that the applicant would continue to work for the respondent as long as she was given the fixed weekend shifts.
[41] In her evidence, the applicant stated that when she approached Mr Gillespie he asked her to put her request in writing, which she did on 28 December 2007. The applicant stated:
“When I saw Mr Gillespie a few days later after giving him the letter I asked him if he received my letter and he said yes, and I said so, you know, what do you think? And he said no, that’s fine, you can have those shifts, no problem.” 22
[42] In cross examination Mr Gillespie acknowledged the verbal agreement as follows:
“All right. So your evidence is, I understand it, that you did agree to set days but you refused to write those set days into her contract?
Yes, that it would be an agreement as long as it met the needs of the organisation and both parties were agreeable that she could work those shifts.
All right. And when you say you refused to write set days into her contract what you mean is you didn’t put set days into the document that’s the 31 December 2007 document?
No, I did not.
Ms Daniel never asked you to put set days into that document, did she?
She requested – I was responding to her letter which requested set days. In the letter I responded it was only a guarantee of 16 hours per week.
Yes. But you also---?
---On either the medical or surgical unit.” 23
[43] Ms Taitau, who compiled the rosters, allocated Saturday and Sunday shifts to the applicant from January 2008. Ms Taitau left the organisation in December 2008. Ms Cavanagh replaced Ms Taitau. On my understanding, Ms Cavanagh was responsible for rosters for both the Surgical and Medical Wards until Ms Delory commenced, sometime in April 2009, at which stage Ms Delory was responsible for rosters in the Medical (Mallard) Ward.
[44] Between December 2008 and April 2009 the applicant reiterated, in correspondence to Ms Cavanagh and Ms Dodd, that “I am permanent staff with fixed shifts and my hours can’t be reduced/changed without my request”, 24 and “I am one of the registered nurses working at Hurstville Community Private Hospital. I have fixed shifts (Saturday morning and Sunday afternoon). Last week I saw the roster for the period 22/12/08 to 4/1/09. This means that I only will be working 8 hours per week instead of 16 hrs. This was done without my knowledge/consent to the alteration”.25 On 10 April 2009 the applicant wrote the following letter to Ms Delory:
“My name is Fariba Daniel and I am registered nurse working on weekends. The purpose of this letter is to firstly introduce myself and welcome you to Mallard Ward and secondly to let you know about my roster and new postal address.
I used to do Saturday morning and Sunday afternoon until last weekend but due to change in my personal circumstances I can only work Saturday and Sunday afternoon. I had spoken to Ms Julie Scottie two weeks ago to seek her approval and she has approved the same and I started my new roster from this weekend. But since you will be doing the roster, from now on to avoid any confusion I decided to write to you to ensure you are aware of the change prior to doing the new roster.
My new postal address:………………..
Please do not hesitate to contact me on …………
Welcome to Mallard Ward again. I am looking forward to meet you in near future.” 26
[45] From her evidence 27 it would appear that the applicant did not receive a contradictory response to the position she put to Ms Cavanagh and Ms Dodd. The applicant, in evidence in chief, stated that Ms Cavanagh contacted her, sometime after the applicant’s letter to Ms Dodd in December 2008, and she advised Ms Cavanagh that “I had fixed shifts, and she said oh, you didn’t. I said yes, you go to my file and you will see the letter I wrote to Mr Gillespie, that’s the base of the contract that I had with Mr Gillespie”.28
[46] I have considered the evidence given in the proceedings by Mr Gillespie and Ms Taitau. On balance, I am not persuaded that the applicant was advised that the shifts she had requested were not a permanent arrangement. I accept that in all probability she may have been advised that she could work the shifts she requested while it suited the requirements of the business. In my view, any comment along those lines, if made by either Mr Gillespie and/or Ms Taitau, would be a logical response. However, regardless of whether or not the applicant was advised by Mr Gillespie and/or Ms Taitau that her rostered shifts were only available to her while it suited the organisation’s service needs, these were the shifts she worked until the restructure of the business. As Mr Gillespie stated “I would have yes, agreed that she could work the weekends on morning and afternoon as long as it suited the rostering for the area”. 29It appears that up until the restructure the applicant’s rostered shifts suited the rostering for the area she was working in.
[47] In June/July 2009 the respondent restructured its business operation. This restructure led to the closure of the Mallard Ward, where the applicant was performing her duties on Saturday and Sunday shifts.
[48] In cross examination, Mr Borrow put to the applicant that with the closure of the Mallard Ward and the relocation of those patients to the surgical wards, her shifts on 18 and 19 July 30 would not have been available to her. The applicant replied:
“I saw my name in surgical wards allocation book on the 11th when I went to work on surgical ward. I was asked to go there because Mallard Ward was closed, and my name was on the allocation book of surgical ward for the following week, the next Saturday and Sunday, which was 18th and 19th.
But if you’d received this on or about 11 July and it indicated there were no patients there why would they be requiring you to report for work the following week?
Working in surgical ward. That’s what my contract say, I could work in medical and surgical ward. Why wouldn’t I not expect to work in surgical ward? Was I exclusively working in Mallard Ward? That wasn’t my decision.
If it’s your position that you were always reporting for work at the Mallard Ward with the exception of a few occasions the shifts that were programmed for you to attend for work there wouldn’t have been required would they?
I work on surgical ward on 11th, and my name was in the surgical allocation book to work the following weekends, but I received phone call from Ms Scotti on 17 not to go to work.” 31
[49] From Friday 10 July 2009 the Mallard Ward patients were relocated to the Surgical Ward. 32 The applicant’s evidence was that her last shifts worked for the respondent were Saturday and Sunday shifts on 11 and 12 July 2009. These shifts were in the Surgical Ward. Her next allocated shifts, in the Surgical Ward, were to be Saturday 18 and Sunday 19 July 2009. She was directed not to attend these shifts.
[50] Ms Scotti’s file note, dated 17 July 2009 in relation to the change of the applicant’s rostered shifts, inter alia, stated:
“Due to operational reason and to satisfy the operational requirements of the organisation a call was made a message left on her mobile stating that she would not be required to work on the Saturday or Sunday shift this weekend.
Also notified that she was required to work Wednesday 22nd and Thursday 23rd on 8 hours of night duty. CEO present when call was made.
Letter sent by courier to her PO Box with the same information
This is reasonable and lawful direction within the scope of the industrial tool
Award states that staff must be free from duty not less than two full days prior to commencing nights. Same fulfilled.
All discussed and letter read to Steve Burrows Industrial officer with Leanna Street consulting today
Removed from the shift on the weekend and name placed in the roster book and on the roster for the Wednesday and Thursday night this week coming.” 33
[51] In cross examination, Ms Scotti acknowledged that she was aware that the applicant had a full time position elsewhere. The email from Ms Delory, dated 26 June 2009, advised Ms Dodd that the applicant “who works every Saturday & Sunday afternoon – would like to stay & work in surgical ward”. 34 Ms Scotti acknowledged that in her conversation with the applicant on 8 July 2009 she advised the applicant that she would not be given fixed weekend shifts as the Mallard Ward no longer existed. Mr Scotti stated that she found the applicant to be always flexible and when “she had an ability to work and we were short Ms Daniel always stepped up to the plate”.35Ms Scotti stated that the applicant’s contract of employment was for 16 hours. Ms Scotti also stated that nobody had access to permanent days and that the organisation needed to be flexible.
[52] In reply to Mr Moorhouse’s question, Ms Scotti’s evidence was that the applicant “had worked weekends because it was suitable for her because she worked Monday to Friday somewhere else and because it suited the organisation so it suited both parties…Ms Daniel had another role where she worked full time they are the only shifts she could work. So we were flexible enough to allow her to do that…She wasn’t able to work other shifts and she tells everybody…Ms Daniel says that she had another position where she worked Monday to Friday and so Ms Daniel was not able to work other shifts of the week so there was no point in anybody offering them to her and if she wasn’t working on the odd occasion, as I said previously, she did pick other shifts up but that was only when Ms Daniel was able to do that”. 36
[53] It appears from the applicant’s payslips 37 that she was paid on 14 July 2009, for shifts worked on 11 and 12 July 2009. The next payslip, which appears to be dated 29 July 2009, shows 32 hours leave without pay against the dates “13/7/2009 – 26/07/2009”.
[54] The letter to the applicant, which stated that she would be offered 16 hours per week in the Surgical Ward but not on the basis of set days or shifts, while dated 8 July 2009 was not posted until after 14 July 2009. The applicant’s evidence, which I accept, was that she received this letter on 16 July 2009.
[55] On 17 July 2009 the applicant was advised that she was not required to work on her rostered shifts for Saturday and Sunday 18 and 19 July 2009, which on the applicant’s evidence were to be worked on the Surgical Ward. The applicant was advised to attend for work on Wednesday and Thursday 22 and 23 July 2009. Ms Scotti was fully aware during this period that the applicant was not available to work through the week as she had another job Monday to Friday. Ms Scotti acknowledged that she was aware of the applicant’s correspondence, dated 20 July 2009, where the applicant stated “Ms Scotti knows very well that I am not able to work any other shift but Saturday and Sunday due to the fact that I have been working for other health care facility”. 38
[56] The applicant was then rostered for duties on Thursday and Friday 30 and 31 July 2009, respectively. Ms Scotti was still aware that the applicant’s position was that she could not attend during the week. The applicant’s written advice dated 27 July 2009 stated that she was not available during weekdays. The respondent by written advice dated 28 July 2009 directed the applicant to attend on the rostered shifts as advised previously.
[57] The applicant did not attend for the above shifts. Ms Scotti’s evidence was that as a general rule when a nurse does not attend for shift the respondent attempts to contact them. She stated that she believed that Ms Cavanagh had attempted to contact the applicant. Ms Cavanagh did not give evidence in the proceedings before me. The applicant’s evidence was that she did not receive a telephone call from anyone at the hospital and it was common practice to ring an employee if they do not turn up for work. Ms Scotti acknowledged that the respondent did receive a facsimile on the morning of 31 July 2009 from the applicant, however, she disputed that the correspondence advised that the applicant would not be attending the workplace. When pushed by Mr Moorehouse, Ms Scotti stated that “[h]owever because she is not available doesn’t mean that the organisation doesn’t have the need”. 39
[58] On the evidence before me, the applicant was rostered on weekends in the Surgical Ward on two occasions. She worked one weekend in that ward and was directed not to work the other weekend, being 18 and 19 July 2009. There is some doubt in my mind that the weekend shifts in the Surgical Ward were not available to be offered to the applicant at that time. The respondent changed her roster to week days knowing full well that she worked full time Monday to Friday at another establishment and could not attend for the shifts that she had been directed to attend. I am not persuaded that the respondent expected the applicant to attend work on 22 and 23 July 2009 or 30 and 31 July 2009. Further, I am not persuaded that the respondent made any attempt to contact the applicant to ascertain why she was not on duty because the respondent knew the answer to that question.
[59] I am persuaded that, on balance, the applicant requested and was granted permanent weekend shifts with the respondent from January 2008. The respondent did not challenge this arrangement until 8 July 2009 when faced with a situation that required a restructure of its operations resulting from the closure of the Mallard Ward. I am not persuaded that the respondent’s direction that the applicant was to attend work on the nominated week days was reasonable in the circumstances at that time. I will further address this issue later in the decision.
[60] I am not satisfied that, on balance, there was a valid reason for the dismissal of the applicant’s employment on the basis of the conduct as alleged.
[61] It appears that the respondent did not contact the applicant after her non attendance on the shifts that she was directed to attend. The respondent did not seek an explanation from the applicant as to her non attendance. The applicant was not put on notice that her non attendance on her rostered shifts would and/or could lead to the termination of her employment. The respondent terminated the applicant’s employment by letter of termination, dated 4 August 2009.
[62] I am not persuaded that the applicant was notified of the reason for her termination of employment. The applicant did receive a letter of termination, however, I am not persuaded that the reasons outlined in that correspondence provided a valid reason for the termination. Further, I am not satisfied that the applicant was provided with an opportunity to respond to any reason related to her alleged conduct.
[63] In considering the requirement of the legislation that I must take into account paragraphs (d) to (g) of s. 387, there was no, or very little, submissions and/or evidence on these factors. In the circumstances I do not take the paragraphs into account.
[64] I will now consider whether there are any other matters relevant to the matter before me.
[65] In her statement, the applicant stated:
“I received a phone call from Mrs. Louise Dodd on 30 June 2009 who informed me that Mallard Ward was going to be closed down in near future. I was asked by Mrs. Dodd whether or not I was interested to work at surgical ward? I was told by Mrs. Dodd that if I didn’t wish to work in surgical ward, hospital would discuss with me the redundancy package.” 40
[66] In her statement, Ms Scotti said:
“Ms Dodd made it clear to the Applicant that this would unsettle the rostering arrangement she had enjoyed and that it would be more then likely that she would be rostered at other localities and times in future in accordance with the hospital’s operational requirements.” 41
[67] In her reply statement the applicant disputed Ms Scotti’s evidence above and stated:
“[W]hen Mrs. Dodd rang me she didn’t know about the roster and she only asked me if I would like to work in the surgical ward and I said yes as long as I get my permanent shifts/hours that I had been doing at medical ward and Mrs. Dodd said she would get the Nursing unit manager of surgical ward to contact me and let me know whether it was possible and if not the hospital would offer me a redundancy package.” 42
[68] The applicant was not challenged in relation to her statement above and Ms Dodd was not called to give evidence in the proceedings before me. On that basis, I accept the applicant’s evidence on her conversation with Ms Dodd.
[69] There was one position made redundant from the restructure. On the evidence of Ms Scotti that person was:
“Cindy decided that given that there was only one position that she didn’t want it. It was easier – we didn’t have anything available at all so we had to offer her – she was the only person that we gave a redundancy to out of the whole ward.” 43
[70] On the evidence, the respondent did offer a redundancy to one employee from the Mallard Ward who declined a position.
[71] The respondent challenged, in cross examination and written submissions, the applicant’s alternative work arrangements and her capacity to work on the shifts that the respondent directed her to attend.
[72] It will be remembered that the applicant commenced with Wybenia Gardens in January 2008. It was this engagement that precluded her from working for the respondent Monday to Friday. It was the applicant’s position, as put to the respondent at the time, that due to her other job she could only work Saturday and Sunday shifts for the respondent.
[73] The applicant, in her evidence in chief, stated that her initial engagement at Wybenia Gardens was as an employee. Her employment status then changed to that of a consultant. She entered into a consultancy agreement with Lansdowne Gardens, the legal entity which engaged her. She stated that the consultancy agreement ended on 30 June 2009, however, she continued to work for Lansdowne Gardens as an employee. The applicant stated that it was on the evening of 29 July 2009 that she was told that her last day of work at Wybenia Gardens would be 31 July 2009.
[74] At the time of the restructure of the respondent’s operations, the applicant was in discussions with Lansdowne Gardens in relation to her future employment as her contract was to end on 30 June 2009. She stated that the directors of Lansdowne Gardens advised her that they were to form a new entity and she would be working for them as an employee and that her employment would be continuing. She stated that towards the end of June 2009 she became anxious as she had not received an employment contract. She stated that she received the following email, dated 23 June:
“Nick Hedges to Fariba, Phill
Hi Fariba,
I have spoken to Phill again regarding your ongoing contract of employment.
We are in the process of setting up a new entity for Lansdowne Gardens to be a stand alone ‘employer’. That being the case we are going to employ you under this new entity. The details of this entity is yet to be established, but will be done so on the 1st July 2009.
As such, once it is established I will be able to provide you with a new contract of employment as an employee of that new entity.
Furthermore to give you a level of confidence we are happy to continue with your current consultant contract until such time as the new employment contract with the new entity is finalized. As at the 1st July, you will be employed as an employee of this new entity.
Thank you for your understanding.
Regards,
Nick
Nick Hedges
Cranbrook care” 44
[75] At the time of the applicant’s termination of employment by the respondent, the respondent was not aware of the details of the applicant’s employment situation with her alternate employer.
[76] The Full Bench in Australian Meat Holdings Pty Ltd, 45in considering relevant authority46 on the question of the role of the Commission, as it then was, stated that:
“…the Commission is bound to consider whether, on the evidence in the proceedings before it, the termination was ‘harsh, unjust or unreasonable’, provided that the evidence concerns circumstances in existence when the decision to terminate the employment was made.
Facts which existed at the time of the dismissal but which only come to light after the dismissal might either:
• justify the dismissal when otherwise it would be harsh, unjust or unreasonable; or
• render the dismissal harsh, unjust or unreasonable.” 47
[77] The Full Bench in Australian Meat Holdings Pty Ltd stated:
“In Byrne the High Court expressly approved of part of the judgment of von Doussa J in Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 at 456.
In Lane v Arrowcrest, von Doussa J considered the example of the dismissal of an accountant who held a position of trust where it was discovered after the dismissal that the accountant had been systematically embezzling money from the employer. His Honour said that it would be astonishing if the employer could not resist an allegation that the dismissal was harsh, unjust or unreasonable by pointing to those facts discovered after the dismissal, so long as they concerned circumstances in existence when the decision was made. His Honour concluded at 456:
“Whether the decision can be so justified will depend on all the circumstances. A circumstance, likely to favour the decision to dismiss, would be that fraud or dishonesty of the employee had caused or contributed to the employer's state of ignorance. A circumstance likely to weight against the decision would be that the employer had failed to make reasonable inquiries which would have brought existing facts to its knowledge before the dismissal occurred.”
The above conclusion was approved by the High Court in Byrne v Australian Airlines Limited. At 430 their Honours Brennan CJ, Dawson and Toohey JJ said:
“…it is clear that the use of an unfair procedure may result in a dismissal being harsh, unjust or unreasonable. For example, the failure to afford an employee the opportunity to explain apparent misconduct where there is an innocent explanation available would result in the dismissal of the employee being in breach of cl 11(a). On the other hand, if an employer were to observe the actual misconduct of an employee in circumstances which allowed no innocent explanation, a summary dismissal might not be in breach of cl 11(a). And facts which existed at the time of a dismissal, but which come to light only subsequently, might justify the dismissal when otherwise it would be harsh, unjust or unreasonable: see Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 at 456.”
The joint judgment of their Honours McHugh and Gummow JJ also cite Lane v Arrowcrest with approval [(1995) 185 CLR 410 at 468].
Both of the judgments in Byrne cite Lane v Arrowcrest with approval and both support the proposition that facts in existence at the time of the dismissal but which are only revealed later might justify a dismissal which would otherwise be harsh, unjust or unreasonable.
It would seem to us that the obverse proposition also applies, that is facts which existed at the time of a dismissal but only come to light after the dismissal may in some circumstances render the dismissal harsh, unjust or unreasonable. The appellant in the proceedings before us disagreed. It was submitted that Lane v Arrowcrest and the comments in Byrne v Australian Airlines do not provide a justification for the obverse proposition. It was argued that the Lane v Arrowcrest principle should be seen as a ‘clean hands’ exception to the general rule expressed in Sangwin. An employee who commits fraud and conceals it from his or her employer is not able to rely on the fact that the employer was unaware of the fact that the employer was unaware of the fraud when the decision to terminate was made.
In our view there is nothing in either Sangwin or Byrne to support the proposition that Lane v Arrowcrest is a `clean hands' exception in the manner advanced by the appellant”. 48
[78] While the decision in Australian Meat Holdings Pty Ltd was determined under a different statutory framework it remains relevant to the matter before me. On authority, “facts in existence at the time of the dismissal but which are only revealed later might justify a dismissal which would otherwise be harsh, unjust or unreasonable”. 49
[79] In written submissions, the respondent argued that the Tribunal should view the applicant’s evidence with a degree of scepticism in relation to her alternative work arrangements with Wybenia Gardens. The respondent also referred to a “Dead of Release”, which was not put into evidence before me in the proceedings. The respondent submitted that material that the applicant was required to produce was not produced. In his decision I have previously made mention of the fact that this issue was not raised with the Tribunal.
[80] In considering whether the termination was harsh, unjust or unreasonable I am bound, as the Full Bench in Australian Meat Holdings Pty Ltd stated, to determine the matter on the evidence in the proceedings before me. From that evidence, the applicant knew that her position with Wybenia Gardens was to terminate on 30 June 2009 with the possibility of ongoing employment as an employee with Lansdowne Gardens. It appears from the applicant’s evidence that her employment with this entity concluded on 31 July 2009 and “[o]n 31 August one month after I finished with Wybenia Gardens I started my current position as a director of nursing at Domain Principal Health Care”. 50
[81] The applicant was engaged by the respondent as a registered nurse. On the material before me there was no question as to her ability and capability in her position or her capacity to operate at a higher level. Indeed the respondent had previously considered the applicant for the role of Nursing Unit Manager. The applicant knew on 29 July 2009 that her position with Wybenia Gardens was to end and, on her evidence, 51 she commenced to forward her resume to agencies seeking a position, which I presume was a position as health administrator as opposed to a registered nurse. In cross examination Mr Burrows put to the applicant that as her position with Wybenia Gardens had concluded on 31 July this afforded her greater flexibility to work shifts during the week. The applicant replied as follows:
“No, because I was going to engage myself in a similar position in another employment situation. I wasn't going to work Monday to Friday as a registered nurse, no. I was seeking managerial position, and your consultancy organisation would have received my thing on 2 August. I was serious to get back to my consultancy - I mean managerial position, Monday to Friday.
So let me understand this. That even if you had been offered shifts at any other time other than on the weekend you would have accepted them?
My commitment to Hurstville Private was Saturday, Sunday, that was the whole issue.
I just want to make that abundantly clear though. You would not have accepted those shifts that were offered to you irrespective of all of the dialogue between yourself and Ms Scotti?
I was engaged with agency work. I was engaged with agency work because while I was looking for the managerial position I wasn't going to commit myself to … work, to sacrifice my whole week for 16 hours at Hurstville Private. I committed myself clearly for Saturday, Sunday shift and I was there and willing to do those shifts but not Monday to Friday because I was going to go back to managerial position.” 52
[82] It appears to me on the evidence that the applicant could have accepted the respondent’s alternative shift arrangements as she “was engaged with agency work… while…looking for the managerial position”.
[83] In my view, the applicant was less than honest with the respondent in relation to her availability, at least after 31 July 2009. I accept the applicant’s evidence that she was serious in her attempts to obtain a managerial position working Monday to Friday. However, on the evidence the applicant was not successful in her endeavours until 31 August 2009.
[84] The applicant did not disclose her circumstances in relation to her employment and employment opportunities to the respondent during the restructure of the respondent’s operation in June/July 2009. The applicant withheld information relevant to her employment with the respondent. In my view, in all probability, the applicant withheld this information as she was of the view that she was entitled to a redundancy payment, which may not be considered if she did enlighten the respondent as to her availability. I have previously stated that I accept the applicant’s evidence in relation to her conversation with Ms Dodd on this issue. However, it is doubtful that Ms Dodd was aware of the applicant’s circumstances surrounding her position with Wybenia Gardens.
CONCLUSION
[85] In this decision I have considered the evidence in the proceedings before me and the submissions made by counsel. I have applied that material to the factors outlined in s.387 of the Act as I am required to do.
[86] I am not persuaded that the termination was harsh, unjust or unreasonable in the circumstances. While I accept the applicant’s evidence that she could not attend work on the shifts that she was directed to attend and the respondent was aware of this fact, the respondent was not aware at the time that the applicant’s position with Wybenia Gardens was to conclude on 31 July 2009. As was said in Byrne v Australian Airlines Limited by their Honours Brennan CJ, Dawson and Toohey JJ: “facts which existed at the time of a dismissal, but which come to light only subsequently, might justify the dismissal when otherwise it would be harsh, unjust or unreasonable”. 53In my view, the applicant had an obligation to her employer to disclose the circumstances of her changed working arrangements. This she did not do. In those circumstances I am unable to find that the termination was harsh, unjust or unreasonable.
[87] The applicant’s application is dismissed. An order reflecting this decision will issue separately.
COMMISSIONER
Appearances:
Mr P Moorhouse, of counsel, for the applicant.
Mr S Borrow, solicitor, Leana Street Consulting, for the respondent.
Hearing details:
Sydney.
2009:
December, 11.
Final written submissions:
2010:
January, 22.
1 Exhibit A3 at page 1.
2 Ibid at page 4.
3 Ibid at page 5.
4 Exhibit A1 at 11.
5 PN445 to PN450.
6 Exhibit A3 at page 9.
7 Exhibit A3 at page 12.
8 Exhibit A1 at 19.
9 Ibid at 14.
10 Exhibit R2 at 22 to 48.
11 Exhibit A1 at 20 to 22.
12 Exhibit R1 at 35 to 45.
13 Exhibit A3 at 15.
14 Ibid at 17.
15 Ibid at 24.
16 Ibid 26 and 27.
17 Ibid at 29; Exhibit R2 at Annexure S.
18 Exhibit R2 at Annexure O.
19 PN317.
20 Written submissions filed 15 January 2009.
21 Ibid at paragraph 1(u).
22 PN421.
23 PN903 to PN906.
24 Exhibit A3 at page 7, letter dated 7 December 2008 to Ms Cavanagh in relation to a change of roster.
25 Exhibit A3 at page 8, letter dated 15 December 2008 to Ms Dodd in relation to the above letter to Ms Cavanagh.
26 Exhibit A3 at page 10.
27 PN440 to PN443.
28 PN443.
29 PN894.
30 These shifts were cancelled by Ms Scotti on 16 July 2009 and by formal correspondence 17 July 2009.
31 PN630 to PN632.
32 Exhibit R2 at Annexure I.
33 Ibid at Annexure K.
34 Ibid at Annexure E.
35 PN1224.
36 PN1243 to PN1246.
37 Exhibit A4.
38 Exhibit R2 at Annexure M, page 5; PN1325 to PN1330.
39 PN1373.
40 Exhibit A1 at 16.
41 Exhibit R2 at 14.
42 Exhibit R2, page 2, reply to paragraph 14 of Ms Scotti’s statement.
43 PN1044.
44 Exhibit A5.
45 Q1625, 5 June 1998 (Ross VP, Polites SDP, Hoffman C).
46 Byrne v Australian Airlines (1994) 47 FCR 300; Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427.
47 Australian Meat Holdings Pty Ltd at page 12.
48 Australian Meat Holdings Pty Ltd at pages 8-9.
49 Australian Meat Holdings Pty Ltd at page 8.
50 PN704.
51 PN703.
52 PN653 to PN655.
53 Byrne v Australian Airlines [1995] HCA 24 at 31.
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