Franic v Australian Red Cross Society

[2016] FCCA 209

FEDERAL CIRCUIT COURT OF AUSTRALIA

FRANIC v AUSTRALIAN RED CROSS SOCIETY & ORS [2016] FCCA 209

Catchwords:
INDUSTRIAL LAW – Adverse action – whether adverse action for reasons of the applicant exercising workplace rights to take personal leave, make complaints about her workload, instruct lawyers to settle case, apply to the Fair Work Commission – whether dismissal because the applicant temporarily absent due to illness or injury.

Legislation:
Fair Work Act 2009 (Cth), ss.341, 346, 352, 360, 361(1), 550

Fair Work Regulations 2009 (Cth), r.3.01

Cases cited:
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, (2012) 86 ALJR 1044, (2012) 220 IR 445, (2012) 290 ALR 647, [2012] HCA 32
General Motors-Holdens Pty Ltd v Bowling (1976) 51 ALJR 235, (1976) 12 ALR 605

Applicant: ROMANA FRANIC

First Respondent:

AUSTRALIAN RED CROSS SOCIETY (TRADING AS AUSTRALIAN RED CROSS BLOOD SERVICE)

(ABN 50 169 934)

Second Respondent: GIUSEPPINA SCARFO-WILLIAMS

Third Respondent: MAUREEN BOWER

File number: MLG 1685 of 2014

Judgment of: Judge Riley

Hearing date: 16, 17, 21, 30 and 31 July 2015 and 18 and 19 November 2015

Date of last submission: 11 December 2015

Delivered at: Melbourne

Delivered on: 10 February 2016

REPRESENTATION

Counsel for the applicant: Glenys Jardine

Solicitors for the applicant: McDonald Murholme

Counsel for the respondent: Mark Rinaldi

Solicitors for the respondent: Lander & Rogers

THE COURT ORDERS THAT:

1. The application filed on 18 August 2014 be dismissed.

2. The question of costs be reserved.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1685 of 2014

ROMANA FRANIC

Applicant

And

AUSTRALIAN RED CROSS SOCIETY (TRADING AS AUSTRALIAN RED CROSS BLOOD SERVICE) (ABN 50 169 561 394)

First respondent

And

GIUSEPPINA SCARFO-WILLIAMS

Second Respondent

And

MAUREEN BOWER

Third Respondent

REASONS FOR JUDGMENT

The nature of the case

1. This is an application under the Fair Work Act 2009 (Cth) (“the Act”). The applicant, Ms Franic, alleged that:

   a) the first respondent, the Australian Red Cross Society (“the Red Cross”), took adverse action against her, contrary to s.346 of the Act, in that the Red Cross:

   i)    issued her with a formal warning because she had exercised her workplace right:

   A) to take personal leave on seven occasions; and

   B) to make complaints about her excessive workload;

   ii)     threatened to dismiss her because she had exercised her workplace right:

   A) to take personal leave on seven occasions;

   B)to make complaints about her excessive workload; and

   C)to make a complaint or enquiry under s.341(1)(c) of the Act in that she had instructed her lawyers to negotiate a resolution prior to her termination; and

   iii)    dismissed her because she had exercised her workplace right:

   A) to take personal leave on seven occasions;

   B)to make complaints about her excessive workload;

   C)under s.341(1)(c) of the Act, to make a complaint or enquiry in that she had instructed her lawyers to negotiate a resolution prior to her termination; and

   D)under s.341(1)(a) and (b) of the Act, to make an application to the Fair Work Commission prior to termination; and

   b) the Red Cross dismissed her contrary to s.352 of the Act because she was temporarily absent from work due to illness or injury of a kind prescribed by the Fair Work Regulations 2009 (Cth) (“the regulations”); and

   c) the second and third respondents, Ms Scarfo-Williams and Ms Bower, were knowingly concerned in the threat to dismiss the applicant and in her dismissal and were thus liable as accessories under s.550 of the Act for the Red Cross’s contraventions.

Legislation

1. Section 360 of the Act provides that:

   For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

2. Subsection 361(1) of the Act provides that:

   (1)     If:

   (a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

   (b)taking that action for that reason or with that intent would constitute a contravention of this Part;

   it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

Bendigo v Barclay

1. The High Court considered the effect of s.361 of the Act in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, (2012) 86 ALJR 1044, (2012) 220 IR 445, (2012) 290 ALR 647, [2012] HCA 32. In that case, the alleged reason for the adverse action was that the employee was an officer or member of an industrial association, or engaged or proposed to engage in particular kinds of industrial activity. French CJ and Crennan J said:

   44.There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression "because" in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains "why was the adverse action taken?".

   45.This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity. (citations omitted)

2. French CJ and Crennan J also considered the effect of s.360 of the Act at [57] to [59]. Their Honours adopted the reasons of Mason J in General Motors-Holdens Pty Ltd v Bowling (1976) 51 ALJR 235, (1976) 12 ALR 605 to the effect that, for an applicant to succeed in an adverse action claim, the impugned reason for the adverse action must be “a substantial and operative factor” in the reasons for the adverse action.

3. Gummow and Hayne JJ said much the same at [127]:

   In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a "substantial and operative factor" as to constitute a "reason", potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.

4. Heydon J said at [146]:

   To search for the "reason" for a voluntary action is to search for the reasoning actually employed by the person who acted. Nothing in the Act expressly suggests that the courts are to search for "unconscious" elements in the impugned reasoning of persons in Dr Harvey's position. No requirement for such search can be implied. This is so if only because it would create an impossible burden on employers accused of contravening s 346 of the Act to search the minds of the employees whose conduct is said to have caused the contravention. How could an employer ever prove that there was no unconscious reason of a prohibited kind? An employer's inquiries of the relevant employees would provoke, at best, nothing but hilarity. The employees might retort that while they could say what reasons they were conscious of, they could say nothing about those they were not conscious of.

Background

1. Ms Franic was employed by the Red Cross between 23 April 2008 and 20 June 2014.  She worked in the blood donor services area as an equipment co-ordinator.  Essentially, her role required her to provide the appropriate equipment to blood donation centres, initially in Victoria and later in Tasmania as well.  Some equipment needed to be calibrated, some needed to be repaired and some needed routine maintenance.  In addition to the scheduled maintenance for each item of equipment, Ms Franic was responsible for attending to urgent maintenance and other work that came in from time to time.

2. In 2009, Ms Franic was diagnosed with ductal carcinoma in situ.  She had time off work for medical treatment and surgery in 2009 and 2010.

3. In 2010 and 2011, Ms Franic reported to Mr Cox. Ms Franic then reported to Mr Hefron for a time. From June to October 2012, Ms Franic reported to Ms Hawkey.  From October 2012, Ms Franic reported to Mr Botterill, and he reported to Ms Bower, the second respondent.  The third respondent, Ms Scarfo-Williams, was the regional human resources (“HR”) manager of the Red Cross.

4. In 2010, the Red Cross increased the number of digitherms Ms Franic had to administer from 60 to 250. Ms Franic made numerous and repeated complaints about her workload and asked for extra assistance.  She continued to do so for the whole of her employment with the Red Cross.  Additional assistance was sometimes provided. On 17 February 2011, Mr Cox asked Ms Franic to provide a detailed workplan, with timelines, tasks and allocations.  Ms Franic did not provide it.

5. On 16 August 2010, the donor centre manager in Mildura requested a number of digitherms, because their devices were out of calibration that month.  Mr Cox considered that the Mildura donor centre should not have had to ask, because it was Ms Franic’s job to organise preventative maintenance in accordance with work orders created by the Red Cross’s asset management software, which was called BEIMS.  Mr Cox also considered that Ms Franic’s inability to keep up with her work created urgency and congestion in the workflows of other staff, such as the scientists who were responsible for the calibration of digitherms.  Mr Franic said that the reason this issue arose was her excessive workload.  A similar issue arose in April 2011 in relation to the Bendigo donor centre.

6. When Ms Franic was on annual leave, most of her work was undertaken by other staff.  In the view of Mr Cox, other staff were able to complete most of the tasks that were usually undertaken by Ms Franic without any issues or additional assistance. Mr Cox also considered that Ms Franic’s desk was disorganised and she did not work systematically through each task.  Mr Cox considered that Ms Franic failed to follow processes, incorrectly allocated assets and incorrectly completed paperwork.

7. In 19 September 2011, Mr Cox gave Ms Franic a performance rating of 3B on her annual performance review, which meant that she met expectations and sometimes demonstrated the required behaviours.   

8. In June 2012, Ms Franic was nearly hit by a Bendi forklift as she crossed a pedestrian crossing at the West Melbourne premises of the Red Cross.  That incident was described in these proceedings as the “Bendi Near Miss”.  An internal investigation conducted by the Red Cross did not attribute any blame to Ms Franic.  However, Mr Cox said that he had seen video footage of the incident (which was not produced to the court), which showed that Ms Franic was not looking to the left or right as she crossed the pedestrian crossing and was looking only at her mobile telephone.  The incident report showed that the remedial action taken by the Red Cross was that Bendi operators were reminded to be extra vigilant and louder horns were installed on the Bendis.  Mr Cox said in his affidavit that Ms Franic was given an informal warning and told to be extra vigilant when crossing the driveway.  However, it seems that Mr Cox was mistaken about that and no such warning was given to Ms Franic.

9. In September 2012, Ms Hawkey and Mr Cox conducted Ms Franic’s annual performance review. Ms Franic complained about her workload.  Mr Cox’s evidence was that he told Ms Franic she had “a major stake” in the Bendi Near Miss “by putting herself and others in danger by not being aware of her surroundings”.  Mr Cox and Ms Hawkey gave Ms Franic a performance rating of 2C, which meant that she met some expectations and rarely or never demonstrated the required behaviours. 

10. Following the 2012 performance review, Ms Franic declined numerous invitations from Mr Cox to discuss the outcome.  Ms Franic eventually sent Mr Cox a written response in which she made various complaints.

11. In October 2012, Mr Botterill took over the management of Ms Franic.  He was aware of the issues that Mr Cox had identified in relation to Ms Franic’s performance and Mr Cox’s view that Ms Franic was disorganised and ineffective in her role.  Mr Botterill accepted Mr Cox’s view that Ms Franic’s workload was reasonable for one person to achieve. 

12. In October 2012, as a result of a national review, Ms Franic’s role and pay were upgraded. Ms Franic had fortnightly meetings with Mr Botterill.  She complained about her workload each fortnight.  Mr Botterill made various suggestions about how Ms Franic could better manage her workload.  Ms Franic insisted that she needed additional support from another employee.  She said that her counterparts in other states had additional support.  Mr Botterill told Ms Franic that the support given to her interstate counterparts was temporary, due to particular, transient circumstances. However, there were occasions when Mr Botterill did provide Ms Franic with additional support for particular purposes.

13. In October 2013, Mr Botterill conducted another performance appraisal of Ms Franic.  She sought additional training to help with her workload. However, Mr Botterill did not facilitate that.  At about this time, Ms Franic’s duties were increased by the addition of the responsibility for co-ordinating donor equipment for Tasmania.

14. On 23 April 2013, Mr Botterill sent Ms Franic an email reminding her that, under the Red Cross policies, she was required to complete some equal opportunity training within 30 days.  It seems that the training was available online. On 24 May 2013, Mr Botterill sent Ms Franic another email noting that she had not completed the training and requiring her to do so by the end of the week.  On 9 July 2013, Mr Botterill sent Ms Franic another email saying that she was in breach of her obligations under the Red Cross’s Code of Conduct and directing her to complete the training by close of business the following day.  On 10 July 2013, Ms Franic sent Mr Botterill an email confirming that she had completed the training and querying an aspect of the Code of Conduct.

15. Mr Botterill said that he asked Ms Franic to proactively run BEIMS reports so that she could identify preventative maintenance work orders coming up in the next month.  However, Mr Botterill said that she did not do so.  Mr Botterill considered that Ms Franic’s lack of organisation meant that donor centres needed to contact her to arrange routine preventative maintenance, with the result that some equipment was not calibrated in a timely manner.  Mr Botterill said that this put donor centres at risk of not being able to operate.

16. In May 2013, the Mildura donor centre asked Ms Franic for a blood pressure calibrator kit to undertake preventative maintenance of blood pressure machines due for calibration in June 2013.  Ms Franic did not provide the calibration kit until 8 July 2013, after the Mildura donor centre had raised the issue with Mr Botterill.

17. In July 2013, Ms Franic, and her interstate  counterparts, were required to commission some new equipment within three weeks.  The interstate people were able to do the task within a week.  However, Mr Botterill said, Ms Franic left it until the last minute and then needed assistance to complete the task by the deadline.

18. On 26 July 2013, the Wangaratta donor centre emailed Ms Franic reminding her that their digitherms were due for calibration at the end of July.  Ms Franic replied to the Wangaratta donor centre on the day saying that she had only just finished packing the digitherms for them as there was a backlog of work and she had been busy with other tasks.

19. On 10 October 2013, Mr Botterill conducted a performance review of Ms Franic.  He gave her a rating of UB, which meant that her skills were unsatisfactory and she sometimes demonstrated the required behaviours.  Mr Botterill told Ms Franic that he was concerned that she had poor time management, did not have systems to manage reactive and preventative maintenance and she had failed to escalate tasks she could not manage.

20. On 28 October 2013, the Ringwood donor centre sent Ms Franic an email asking her to advise on the status of three blood pressure cuffs that had been sent for repair or, alternatively, to send some replacement cuffs.  Ms Franic did not reply.  On 4 November 2013, the Ringwood donor centre sent Ms Franic a further email asking her to send replacement blood pressure cuffs and included Mr Botterill in the email. On 6 November 2013, Mr Botterill directed Ms Franic to attend to the Ringwood donor centre’s request.

21. On 23 September 2013, Ms Franic sent the Frankston critical store some digitherms without also sending the required form, which meant that the digitherms could not be used.

22. Blood pressure machines in donor centres are calibrated annually.  Blood pressure machines have to be accurate, because people are only permitted to donate blood if their blood pressure falls within certain parameters.  Accurate blood pressure readings are necessary to meet the Therapeutic Goods Administration (“TGA”) requirements and the Code of Good Manufacturing Practice (“GMP”).

23. One of Ms Franic’s duties was to check on BEIMS to see when each donor centre was due to recalibrate its blood pressure machines and send a recalibration kit in sufficient time for the recalibrations to be done.

24. On 26 September 2013, Ms Templeton of the Hamilton donor centre sent Ms Franic an email requesting a blood pressure calibration kit, as the centre’s annual calibration was due in October.  The email mentioned that Ms Templeton would be on leave from 14 October 2013 and nominated another contact person.  The Hamilton donor centre reminded Ms Franic of the request by email on 10 October 2013.  On 13 November 2013, Ms Templeton sent Ms Franic another email saying that the calibration kit had not been received and saying that all the blood pressure machines at the Hamilton donor centre were overdue for calibration.

25. A deviation record was submitted by Ms Templeton in respect of this incident, as it had the potential to hinder blood collection, compromise blood donor safety, created a risk of non-compliant equipment being used and put at risk the Red Cross’s TGA licence and compliance with the GMP.  In the section of the deviation record Ms Franic was required to complete, she said that the reason for not sending the calibration kit in a timely manner was her workload.  Ms Franic also said that she had repeatedly requested assistance with her workload from her manager. Ms Templeton’s section of the deviation record described the impact of the deviation as minor, explained that the machines were less than 28 days out of calibration, and said that staff had been advised to compare blood pressure readings with each donor’s previous readings, to use analogue machines and to ensure each donor’s systolic blood pressure was above 100mg.

1. Mr Botterill had agreed to spend a day with Ms Franic on

   
   

   19 November 2013 to better understand her workload.  However, he cancelled that arrangement due to other commitments and did not reschedule. 

2. On 19 November 2013, Mr Botterill and Ms Rajsic, from the Human Resources section, prepared a letter inviting Ms Franic to a meeting on 21 November 2013 at 2pm.  The letter was signed by Mr Botterill and said the following:

   Dear Romana,

   RE: PERFORMANCE AND CONDUCT CONCERNS

   A matter has been brought to my attention which includes:

   1.      On Wednesday 13 November 2013, an issue was raised at the Hamilton Donor Centre that the Blood Pressure (BP) calibrator kit had not been received. The BP devices within the Hamilton Donor Centre were due to be calibrated during October, and as they hadn’t received their kit, the devices expired.

   Part of your role as an Equipment Coordinator, is to organise the delivery of BP calibration kits to Donor Centres to ensure the equipment remains compliant and in working order to meet our regulatory requirements. Your failure to organise the delivery of the kits in a timely manner had the potential to result in a cessation of collections at the Hamilton Donor Centre, compromised donor safety, created a risk of non-compliant equipment being used in a GMP regulated environment and impacted on productivity and process flows on the day.

   I request that you attend a meeting with Management to discuss these concerns in full. At this meeting you will be given an opportunity to respond to the above matters and you are welcome to bring any documentation you believe will assist with your response.

   This meeting will be held at the Melbourne Processing Centre at 100-154 Batman Street, West Melbourne in Meeting Room 13 on Thursday 21^st November at 2pm. It is likely that Lana Rajsic (Senior HR Consultant) and I will conduct this meeting.

   FOLLOW UP MEETING

   You are also required to attend a follow up meeting with management [in] Meeting Room 13 on Thursday 21^st November at 3:30pm. During this meeting, you will be advised of the outcome of the Blood Service’s examination which may result in disciplinary action.

   SUPPORT PERSON

   You are invited to have a support person (such as a family member or friend) attend the meeting with you. If you would like to have a support person present, please provide me with the details of your support person no later than one hour prior to the meeting.

   Your support person should not be any person who is a witness to work related issues that are likely to be discussed during the meeting.

   The role of the support person is to act as [your] witness and support you throughout the meeting. Your support person may choose to take notes during the meeting and you may also request short breaks during the meeting to consult with your support person if you wish. Support persons must maintain confidentiality requirements which are stated at the commencement of the meeting. If the Blood Service believes that your support person is hindering open and honest communication (e.g. behaving in a domineering, disrespectful or disruptive way) they will be asked to leave, and the meeting will continue without them.

   EMPLOYEE ASSISTANCE PROGRAM

   The Blood Service and I recognise that work related issues can affect your quality of life. We are committed to helping you address any problems in your life in order to enhance your general well-being, safety and productivity.

   Using the EAP will not jeopardise your job in any way and is for use by people experiencing difficulties at work or in their personal life.

   The EAP is available 24/7 for all staff and direct family members and the provider can be contacted on … For further information on the EAP, please visit ppconline.info/au and login using username: … and password: …

   I understand that this may be a difficult time for you. Therefore, if you have any questions, please contact Lana Rasjic – Senior HR Consultant on …  

3. The letter was apparently given to Ms Franic on 20 November 2013.  On 21 November 2013, Ms Franic emailed Ms Rajsic asking for an agenda for the meeting.  Ms Rajsic replied saying that the agenda was as set out in the letter.  Ms Franic replied saying that the letter was unclear as to the agenda so she would have to postpone the meeting until she received an agenda.  She also said that she needed time to prepare for the meeting.  Ms Franic did not attend the meeting at 2pm on 21 November 2013.

4. On 21 November 2013, Mr Botterill sent Ms Franic another letter, incorrectly dated 19 November 2013, requesting her attendance at a formal meeting on 22 November 2013 at 12.30pm.  Ms Franic sent an email saying that she still did not have an agenda and she needed time to prepare. Ms Rajsic replied saying that an agenda would not be provided.  Ms Franic replied saying she had an accrued day off on

   
   

   22 November 2013. 

5. Mr Botterill sent an email on 25 November 2014 at 8.28am inviting Ms Franic to a formal meeting at 10am on 25 November 2013.  At 9.58am on that day, Ms Franic replied saying that the meeting would have to be rescheduled as she did not have an agenda and required time to prepare.

6. Ms Rajsic attempted to speak to Ms Franic at her desk about the importance of attending the meeting.  However, Ms Franic refused to speak to her.  Ms Rajsic then emailed Ms Franic, saying that the consequences of the Hamilton calibrator incident might be determined without input from her and might involve disciplinary action.  Ms Franic replied saying that Ms Rajsic’s actions were illegal and saying that an occupational health and safety report had not been filed following the Hamilton calibrator incident. 

7. Mr Botterill and Ms Franic were scheduled to have their regular fortnightly review meeting on 27 November 2013, at 2pm.  Ms Rajsic gave Mr Botterill a letter to give Ms Franic at that meeting.  It contained an invitation to Ms Franic to attend a formal meeting on

   
   

   29 November 2013.  At 1.55pm on 27 November 2013, Ms Franic emailed Mr Botterill saying that she was unwell and was going home.  Mr Botterill went to Ms Franic’s desk and handed her the letter.  She activated the out of office message on her email and entered no end date.

8. On 28 November 2013, Ms Franic did not attend work or call in the morning to say that she would be absent. Mr Botterill called Ms Franic at 1.08pm but she did not answer. In the afternoon, Mr Botterill received a medical certificate by fax in respect of Ms Franic.  She telephoned him later that day and said that she would be unable to work before the end of December 2013. 

9. Ms Franic returned to work on 2 January 2014. During the intervening time other employees had completed her work in her absence.

10. On 2 January 2014, Ms Franic wrote to Ms Wilson, Executive Director, Donor Services, in the following terms:

    Re: No Agenda for Safety risk meeting

    Dear Ms Wilson,

    I am seeking your help regarding a series of threatening communications and interactions from Cameron Botterill and Lana Rajsic in November that are unfortunately continuing to escalate to the point that my doctor advised me to take one month of medical stress leave. As a result I felt it important to bring this urgent matter to your attention in the hope that you would be able to resolve the issue promptly.

    My unrealistic workload expected from Cameron has been an ongoing issue with even more work delegated since the establishment of the new Hub restructure and if I ask someone for help, I have been reprimanded. For example, I arranged help with calibrating 134 Compolab (replacement Hemocue devices) and was reprimanded by Cameron for taking someone away from their work. However, if I require help with disposing of 130 Hemacue (medical devices) as per protocol from across Victoria, Cameron recommended that I seek any needed assistance from Materials Management. They (Camelia and Graham) both declined to assist and advised me that my manager Cameron who is from my own department should assist with this task as they are in another department. I have raised the issue of increased workload numerous times with Cameron Botterill: I explained that I have a similar amount of equipment as my counterpart in NSW (Kristina Hales), who has assistance from [the] facilities department. Cameron Botterill has indicated he would help me at our face to face meeting and planned to spend the whole day on 19 Nov 2013 to go through the work processes at my desk, unfortunately, he postponed this meeting indefinitely. Instead, on this day, he wrote the first letter, regarding performance and conduct concerns. The issue of extra workload has been raised in our Equipment Coordinators[’] meetings who concur that more support is needed, but to date this has not occurred.

    In November, I was sent four letters (Dated: 19-27 Nov, 2013) from Cameron requesting to meet with me “RE: Performance and Conduct concerns” or “RE: Performance concerns” with as little as 1.5hrs notice (Table 1), scheduled on an approved ADO by Cameron, or on days of medical stress leave (Please see appendix for a copy of letters). Each letter came with a date and time of an initial meeting and follow-up meeting on the same day spaced shortly apart with an impossible timeframe to arrange a support person. These letters came as a complete surprise since I recently met with Cameron regarding PDP (performance and development plan) and no performance or conduct concerns were raised. Unfortunately, no written report was provided by Cameron after the PDP meeting so I am unable to provide a copy to you. Since this recent PDP meeting, a few months ago, there have been no incident reports as of 21 Nov 2013 and Cameron has never discussed any performance or conduct issues with me. As a result I was puzzled as to what the requested meetings were about. The four letters mentioned that the BP calibrator kits had not been received which was also puzzling because this was documented in one deviation record (14 Nov 2013, Ref# VIC-13-DHA-66455) where Cameron was copied in to the correspondence by Pam Templeton (Donor Centre Manager), who later confirmed via email (20 Nov 2013) to me that all BP monitors passed. Given that an Incident Report is defined as potential or actual injury or illness to a donor, employee or volunteer, and a Deviation Report is defined as any variation from controlled processes and procedures. The issue of using out of calibration blood pressure devices at Hamilton Donor Centre, raised by Cameron in the letters,” …… compromised donor safety …,” and why there is not an incident report which is a mandatory requirement according to OH&S legislation to investigate and notified with Work Safe concerns me (sic). As a significant number of minor incidents will eventually equate to a medically treated injury, according to the OH & S Act. My request to have this said report generated and used as an agenda for the meeting was ignored. Both Lana and Cameron state that incident reports are not company policy, and as such, will not be completed. This was the response I was given.

    Also, when considering the last email from Lana Rajsic ”..allegations against you..Should you refuse to provide a response we will have no choice but to determine the outcome ..disciplinary in nature..” is completely puzzling (sic). I am completely unaware of any allegations. Given the threatening tone of the emails and letters that I had received I felt it imperative that I receive a meeting agenda and time so that I could adequately prepare, including organizing a “support person” and providing Cameron Botterill the requested minimum of one hour notice as specified in his letters.  Less than half an hour notice makes it impossible to provide Cameron with one hour notice to provide a ‘support person’ that is not affiliated with my workplace. I never refused to meet, I simply requested a copy of the agenda and adequate time to prepare prior to the meeting, as Cameron has scheduled two meetings sequentially with only 1.5hrs apart, so I need to be able to prepare for the first meeting and have all the documentation / evidence required to present. Despite my repeated requests, and the legal requirement to provide an agenda, both Cameron and Lana refused to provide one. Furthermore, Lana adamantly shouted to me in a public forum ‘That she will write her report based on the information management have with threats of disciplinary action and that management don’t supply agendas’.

    Table 1 Summary of four letters addressed to Romana Franic by Cameron Botterill from 19th -27^th Nov, 2013.

Date of Issue	Reference Title	Initial meeting scheduled by Cameron	Follow/Up (sic) meeting pre-scheduled by Cameron
1) 20 Nov 2013, >2pm	Performance and conduct concerns	21 Nov, 2pm	21 Nov, 3.30pm
2) 21 Nov 2013 2.51pm	Performance and conduct concerns	22 Nov, 12.30pm	22 Nov, 2pm
3) 25 Nov 2013 8.28am	Performance and conduct concerns	25 Nov, 10am	25 Nov, 11.30am
4) 27 Nov 2013 2pm	Performance concerns	29 Nov, 2pm	29 Nov, 3.30pm

Please see attached Appendix for letters 1 to 4.

Your urgent attention to resolve this matter would be greatly appreciated to ensure Safe work practices and compliance for all BP devices at Centres.

1. On 3 February 2014, Mr Botterill provided Ms Franic with a letter inviting her to attend a formal meeting on 11 February 2014 at 1.30pm.  At 1.33pm on 11 February 2014, Ms Franic emailed Mr Botterill saying that the meeting needed to be deferred because she was awaiting an agenda and an incident report. 

2. After receiving Ms Franic’s email, Mr Botterill attempted to telephone Ms Franic a number of times without success.  He then sent her an email at 2.18pm saying that the meeting would be rescheduled to 4pm and that if she did not attend, a decision would be made regarding the Hamilton calibrator incident without any input from her.  Ms Franic replied by email at 3.59pm saying:

   Hi Cameron,

   This is the fifth letter; (sic) I have received with lack of documentation and I also finish up at 4pm, as I have done enough overtime lately.

   Let me remind you, that your Actions are illegal, as you are compromising safety regulations and the TGA guidelines.

   You have not provided me with any details to the allegations, as I have NOT received an Agenda.

   If the allegations are at hand, then why don’t you supply them?

   Let me remind you, that I have not failed to attend; as I have sent notification requesting an Agenda repeatedly, which you have insisted is in the letters, but all your letters are vague.

   As I had indicated previously, is there an Agenda? If there is no Agenda, there is no meeting.

   As soon as you have provided an Agenda, invited Hamilton Donor Centre staff and any other nominated parties. We can go through the process to ensure this does not occur again; in an Agenda which is outlined in an Incident Report. An Incident Report, is only completed for staff, at the Blood Service, why not Donors. A significant number of Minor Impacts will eventually equate to a Medical Treated Injury and this would be careless and irresponsible not to address.

   Thereby this chain of events cannot happen again, resulting in future compliance of all BP devices.

   If it is not significant enough Incident, your quote from all the letters I have received,” 1. On Wednesday 13^th November 2013, an Issue was raise at Hamilton Donor Centre that the Blood Pressure (BP) calibrator kit had not been received. The BP devices within the Hamilton Donor Centre were due to be calibrated during October, and as they hadn’t received their kits, the devices expired.

   “Your failure to organise the delivery of kits in a timely manner had the potential to result in a cessation of collections at the Hamilton Donor Centre, compromised donor Safety, created a risk of non-compliant equipment being used in a GMP regulated environment and impacted on productivity and process flows on the day.”

   If it’s not a significant enough Incident, from your Quote, above to document on formally, with OH&S at the Blood Service as an Incident Report then it’s NOT significant enough to have a formal meeting with anyone about performance concerns.

   This is OH&S Legislation.

   You should be fully aware of these legislations and ensure that we comply.

   As the Incident at Hamilton Donor Centre is a process issues and needs attention or do all Deviations now equate to a Performance Concerns for all individuals?

   I look forward to review an Incident report with all other parties to rectify issue raised together with the SOP to ensure work safe practices are implemented. (errors in original)

3. On 12 February 2014, Ms Wilson replied to Ms Franic by email saying that she was required to attend the formal meeting. 

4. Mr Botterill sent another letter to Ms Franic on 17 February 2014 inviting her to a meeting on 19 February 2014 at 11am. That letter was as follows:

   Dear Romana

   PERFORMANCE AND CONDUCT CONCERNS

   In accordance with previous requests and advice to you from the Executive Director Donor Services, you are required to attend a meeting with management to discuss a number of performance and conduct concerns.

   To date, you have been invited to a number of meetings to discuss performance concerns in relation to your failure to issue a Blood Pressure (BP) calibration kit, the most recent meeting to have been on 11 February 2014. You have not attended any of these meetings in accordance with management’s requests, noting that one meeting was re-scheduled by management.

   Prior to the Blood Service making a decision in relation to the outcome of the performance concerns outlined, you are being provided with one further opportunity to attend a meeting to respond to the performance allegations, and you are directed to attend this meeting. Your failure to attend this meeting will result in the Blood Service making a decision about the allegations based on the information we have available to us.

   The purpose of the meeting, as has been outlined in previous correspondence will be to discuss and obtain your response to the following allegations:

   ·On Wednesday 13 November 2013, the Hamilton Donor Centre advised that they had not received a Blood Pressure (BP) calibrator kit. The BP devices within the Hamilton Donor Centre were due to be calibrated during October, and as they hadn’t received their kit in October, the devices expired.

   Part of your role as an Equipment Coordinator, is to organise the delivery of BP calibration kits to Donor Centres to ensure the equipment remains compliant and in working order to meet our regulatory requirements. Your failure to organise the delivery of the kits in a timely manner had the potential to result in a cessation of collections at the Hamilton Donor Centre, compromised donor safety, created a risk of non-compliant equipment being used in a GMP regulated environment and impacted on productivity and process flows on the day.

   ·Subsequently to your non-attendance to the meeting scheduled for Thursday 21 November, further performance concerns have arisen specifically in relation to:

   a.your failure to respond on Wednesday 13 November 2013 to a management directive to provide a summary of events which lead to the incident above The e-mail request highlighted the urgent nature of the request.

   b.The tone of your email to me on 11 February 2014 at 3.59pm regarding your failure to attend the meeting scheduled for 1.30pm, which is considered to be a breach of Blood Service Values.

   Please note that a separate agenda with not be issued in relation to this meeting as the matters outlined in points above clearly state the matters to be discussed at the meeting. At this meeting you will be given an opportunity to respond to the above matters and you are welcome to bring any documentation you believe will assist with your response.

   Should you fail to follow this reasonable management direction and not attend this meeting without reasonable cause and notice to management, you may subject to further disciplinary action which may result in a number of outcomes up to and including the termination of your employment.

   This meeting will be held at the Melbourne Processing Centre at 100-154 Batman Street, West Melbourne in Meeting Room 6 on Wednesday 19 February 2014 at 11:00am. I will conduct this meeting with a representative from Human Resources.

   FOLLOW UP MEETING

   You are also required to attend a follow up meeting with management in Meeting Room 7 on Wednesday 19 February 2014 at 13:00pm. During this meeting, you will be advised of the outcome of the Blood Service’s examination which may result in disciplinary action.

   SUPPORT PERSON

   You are invited to have a support person (such as a family member or friend) attend the meeting with you. If you would like to have a support person present, please provide me with the details of your support person no later than one hour prior to the meeting.
   
   Your support person should not be any person who is a witness to work related issues that are likely to be discussed during the meeting.

   The role of the support person is to act as you witness and support you throughout the meeting. Your support person may choose to take notes during the meeting and you may also request short breaks during the meeting to consult with you support person if you wish.

   Support persons must maintain confidentiality requirement which are stated at the commencement of the meeting. If the Blood Service believes that your support person is hindering open and honest communication (e.g. behaving in a domineering, disrespectful or disruptive way) they will be asked to leave, and the meeting will continue without them.

   EMPLOYEE ASSISTANCE PROGRAM

   The Blood Service and I recognise that work related issues can affect your quality of life. We are committed to helping you address any problems in your life in order to enhance your general well-being, safety and productivity.

   Using the EAP will not jeopardise your job in any way and is for use by people experiencing difficulties at work or in their personal life.

   The EAP is available 24/7 for all staff and direct family members and the provider can be contacted on … For further information on the EAP, please visit ppconline.info/au and login using username: … and password: …

   I understand that this may be a difficult time for you. Therefore, if you have any questions, please contact Lana Rajsic – Senior HR Consultant on …  

1. At 9.02am on 19 February 2014, Ms Franic emailed Mr Botterill to say that she needed more time to arrange a support person.  Mr Botterill replied saying that the Red Cross could provide a support person if needed.  Ms Franic replied saying that she required her own support person and needed the meeting to be re-scheduled in two weeks.  Mr Botterill replied saying that Ms Franic had been given ample time to arrange a support person and saying that the meeting would be rescheduled to 3pm on 25 February 2014. 

2. On 20 February 2014, Ms Franic emailed Mr Botterill asking him to advise Ms Wilson that Ms Franic needed 10 working days’ notice of the meeting.  Ms Wilson was on leave at that time.  The Executive Director HR wrote to Ms Franic on 21 February 2014 requiring Ms Franic to attend the meeting as scheduled and saying that, if she did not attend, a decision would be made based on the information at hand.

3. On 25 February 2014, Ms Franic telephoned Mr Botterill and advised that she was unwell and could not attend work.  She did not attend work on that day or the next.

4. The Red Cross received a letter from Ms Cunningham of Professionals Australia saying she was acting for Ms Franic and asking that the meeting be postponed.  The meeting was rescheduled to 6 March 2014. 

5. The meeting took place on 6 March 2014.  Mr Botterill, Ms Franic and Ms Rajsic attended in person and Ms Cunningham attended by telephone.  During the meeting, Mr Botterill and Ms Rajsic took a 20 to 30 minute break during which they decided to issue Ms Franic with a first formal warning and place her on a performance improvement plan.  Ms Rajsic prepared a summary of the meeting in an email to Ms Bower and Ms Scarfo-Williams as follows:

   Hi All

   Just to give you a formal overview of the meeting that occurred yesterday afternoon between Romana, Cameron and I.
   The meeting went ahead and Joanna Cunningham (lawyer from Professionals Australia) was in attendance via phone as Romana’s support person.

   During the meeting we raised three issues with Romana as set out in her meeting invitation letter, which were: (1) her failure to send a calibration kit to the Hamilton Donor centre (2) her failure to respond to her manager’s request for a summary of events leading up to her not sending the equipment and (3) her tone in an email sent to her manager after she refused to attend one of the meetings.

   It was difficult to keep the discussion on track with Romana, and we had to keep bringing her focus back onto the topic we were discussing at the time. Her response to issue (1) was that she missed it and it was her workload that was the issue to which Cameron responded and reminded her that he had been asking her for a workload list for a few months and that without this he cannot do a workload analysis; Romana’s response to issue (2) was that she didn’t think he wanted one after a deviation was provided to him, and her response to issue (3) was that she didn’t think there was anything inappropriate in her email to Cameron.

   Romana’s attitude, body language and behaviour during the discussion was wholly inappropriate. I had to interrupt her four times to ask her to lower her voice, and a further four times to ask her to respect Cameron and let him finish answering her questions and address some of her comments. Overall, Romana refused to accept any responsibility or accountability for her actions and behaviours raised. However, during the meeting Romana agreed to three actions as a result of the discussion and will, from now on, (1) escalate any tasks which she is unable to complete to her manager, (2) provide her manager with a daily workload list by the 20/3 and (3) will respond to her manager’s requests and communications in a timely manner.

   Joanna Cunningham from Professional Australia interjected once to confirm for Romana what we were seeking from her: (1) to understand why the issue happened, (2) to determine a course of action to prevent issues like these ones occurring again and (3) what we as the employer will do to support her.

   After the initial meeting, Cameron and I took a break to consider Romana’s responses and decide on the outcome. Based on Romana’s responses during the meeting, her refusal to accept responsibility and her ongoing performance issues, she was issued with a first formal warning. As part of the outcomes, she was advised that in order to help her improve in her role, we will be implementing a Performance Improvement Plan which will begin on 11 March and cease on 3 June.

   I will be issuing her with written confirmation of the outcomes today.

   Regards

   Lana Rajsic
   Senior HR Consultant

6. The “first formal warning” referred to in Ms Rajsic’s email was provided to Ms Franic and was as follows:

   Dear Romana

   FIRST FORMAL WRITTEN WARNING

   This letter is provided to you as a written confirmation of the outcomes from the meeting and discussions conducted on Thursday 6 March 2014 with you regarding performance and conduct concerns. Lana Rajsic (Senior HR Consultatn) and I were in attendance at the meeting. Joanna Cunningham (Lawyer) from Professionals Australia attended as your support person via teleconference.

   During this meeting, you were provided with an opportunity to respond to concerns regarding your performance and conduct in the workplace. The concerns are outlined below, with a summary of your response:

   1.Failure to dispatch a Blood Pressure calibration kit to the Hamilton Donor Centre in a timely fashion which resulted in expired equipment.

   Your response was that you missed it and that your workload is too large. You were reminded by Cameron that he has requested a daily workload/task list from you in order to analyse your workload. In addition, Cameron reminded you that he has repeatedly requested that you escalate to him when tasks and activities are not going to be completed by a deadline with sufficient advance notice to assist you with managing your work.

   2.Failure to respond on Wednesday 13 November 2013 to a request from your manager, Cameron Botterill, to provide a summary of events which lead to the incident above.

   Your response to this was that since Cameron had received a Deviation for the incident you presumed that it contained the information he wanted. Cameron explained to you during the meeting that if you are requested to provide information, you are to provide it in a timely manner or clarify whether it is still needed. Cameron clarified that urgent requests need to be actioned and responded to on the same business day. Cameron also explained to you that he had not received the Deviation and clarified with you when you responded to the Deviation. You noted that you responded on Wednesday 5 March 2014. Cameron advised you that this was significantly overdue.

   3.Tone in an email to your manager, Cameron Botterill on
   11 February 2014 at 3.59pm regarding your failure to attend the meeting scheduled for 1.30pm.

   In response to the final issue that was raised with you, your response was that you didn’t believe that you had breached the Code of Conduct or our Values when you sent the email noted above to your Manager.

   During the meeting you were provided with an opportunity to respond to the matters raised and your responses were discussed. Following full consideration of the facts and your responses, we have determined that you have breached the terms and conditions of your employment, as well as the Code of Conduct and the Blood Service Values.

   The Blood Service considers this to be unacceptable and you are reminded of your responsibility as an Equipment Coordinator that you are required to fulfil all aspects of your role, in particular critical tasks such as dispatching calibration equipment. You are also reminded that as an Employee of the Blood Service, you have a responsibility under the Code of Conduct to treat our donors, customers and staff fairly and with respect and conduct yourself in a professional manner at all times.

   This letter constitutes a first formal written warning with regard to your performance and conduct as outlined above, and you will be placed on a Performance Improvement Plan to address the concerns around your performance and behaviour in the workplace, specifically:

   ·   Service – focusing on meeting the needs of donor centres, customers and external stakeholders

   ·   Accountability- being accountable for managing self, prioritizing work and escalating appropriately

   ·   Code of Conduct – understanding your responsibilities and working collaboratively

   In addition, during the meeting you agreed to the following actions:

   ·   You agree to provide Cameron with your daily workload/task list by Friday 21 March 2014. This timeframe has been extended as a result of your planned annual leave, which was not noted in the meeting, to Friday the 28^th March.

   ·   You agree to provide timely responses to information sought by Cameron

   ·   You agree to escalate matters that you are not able to complete by the due date with sufficient advance notice.

   You are reminded that your performance and conduct will continue to be monitored. Failure to comply with Blood Service Policies and Procedures and the terms and conditions of your employment (including the Code of Conduct and our Values), may result in further disciplinary action, up to and including termination.

   The Blood Service hopes to see you improve and ultimately succeed in your role. Should you have any questions or queries regarding the content of this letter please contact me at any time.

   EMPLOYEE ASSISTANCE PROGRAM

   The Blood Service and I recognise that work related issues can affect your quality of life. We are committed to helping you address any problems in your life in order to enhance your general well-being, safety and productivity.

   Using the EAP will not jeopardise your job in any way and is for use by people experiencing difficulties at work or in their personal life.

   The EAP is available 24/7 for all staff and direct family members and the provider can be contacted on … For further information on the EAP, please visit ppconline.info/au and login using username: … and password: …

   I understand that this may be a difficult time for you. Therefore, if you have any questions, please contact Lana Rajsic – Senior HR Consultant on …

7. Digitherms need to be calibrated every six months.  Ms Franic was responsible for:

   a)      identifying when digitherms were due for calibration;

   b)      sending loan digitherms to the relevant donor centre when required;

   c)      receipting the digitherms that had been received;

   d)      sending the digitherms that had been received to the laboratory for calibration;

   e)      sending the recalibrated digitherms back to the relevant donor centre with the appropriate paperwork; and

   f)      receipting the loan digitherms that the donor centres returned.

8. On 7 March 2014, the manager of the Bendigo donor centre emailed Mr Botterill saying:

   It has been brought to my attention that most of the loan digitherms that I have on-site were due for calibration at the end of February! Can I please have 6 replacement digitherms ASAP!!! The remaining 4 or so are due at the end of March!

9. Mr Botterill emailed Ms Franic asking her to urgently send the Bendigo donor centre the requested digitherms.  Ms Franic replied saying that she had been attending to meeting requests instead of donor services and resources needed to be looked at immediately.  At 5.52pm on Friday 7 March 2014, Ms Franic sent Mr Botterill an email saying that she would be on annual leave the following week.

10. On 18 March 2014, Mr Botterill and Ms Franic had the performance improvement plan meeting that was contemplated in the first formal warning letter.  That letter also required Ms Franic to provide to Mr Botterill a daily task list.  Ms Franic sent Mr Botterill an email saying:

    So what am I supposed to do today, other than summarising what[’]s outstanding!

11. Mr Botterill and Ms Franic had a review meeting on 2 May 2014.  Ms Franic had included in her summary of activities comments on the occupational health and safety and deviation consequences of the Hamilton calibrator incident.  Mr Botterill directed her to remove those comments as he considered them to be irrelevant.  He said at paragraph 127 of his affidavit:

    [Ms Franic] became aggressive, started shouting at me, stood up from her seat and leant over me in my seat and refused to accept the directive.

12. Ms Franic denied those allegations, except that she agreed that she had refused to accept the directive.

13. Mr Botterill said that he considered that Ms Franic’s work had not improved, she had refused to accept responsibility for her poor performance, she had been dilatory in sending Mr Botterill her daily work lists and she had not escalated tasks that she was unable to complete in a timely manner.  Consequently, Mr Botterill, Ms Rajsic and Ms Bower decided to require Ms Franic to attend a second formal meeting.  Mr Botterill sent Ms Franic a letter on 13 May 2014 requesting her attendance at a second formal meeting on 14 May 2014 at 2pm.  The letter, which was signed by Mr Botterill, was in the following terms:

    Dear Romana

    RE: PERFORMANCE AND CONDUCT CONCERNS

    I request that you attend a meeting to discuss performance and conduct concerns.

    You have failed to abide by the agreed outcomes of the meeting you attended on Thursday 6 March 2014. During this meeting, you were advised that your performance and conduct would continue to be monitored, and any further breaches would result in further action.

    Subsequently to the abovementioned meeting, you have failed to:

    ·Demonstrate progress against the requirement of your Performance Improvement Plan (PIP) to addres concerns regarding your conduct and performance, specifically around Service, Accountability and Code of Conduct

    ·Provide your daily task list by 28 March 2014, with a further extension being granted until 30 April. The task list was supplied on the 1^st May.

    ·Escalate matter that you were not able to complete by their due date with sufficient advance notice.

    In addition to the above, you are also in breach of the Code of Conduct, when you acted in an inappropriate manner by raising your voice repeatedly at me during our routine meeting on 2 May 2014 and acting in an inappropriate manner towards me. Further, you refused to accept accountability when I raised this with you at the PIP meeting on the 6 May 2014 and you stated that you were not committed to the PIP process.

    I request that you attend a meeting with Management to discuss these concerns in full. At this meeting you will be given an opportunity to respond to the above matters and you are welcome to bring any documentation you believe will assist with your response.

    This meeting will be held at the Melbourne Processing Centre at 100-154 Batman Street, West Melbourne in Meeting Room 9 on Wednesday 14 May 2014 at 2.00pm. It is likely that Lana Rajsic (Senior HR Consultant) and I will conduct this meeting.

    FOLLOW UP MEETING

    You are also required to attend a follow up meeting with management in Meeting Room 9 following the above meeting at which you will be advised of the outcome of the Blood Service’s examination which may result in disciplinary action, up to and including termination.

    SUPPORT PERSON

    You are invited to have a support person (such as a family member or friend) attend the meeting with you. If you would like to have a support person present, please provide me with the details of your support person no later than one hour prior to the meeting.
    
    
    Your support person should not be any person who is a witness to work related issues that are likely to be discussed during the meeting.

    The role of the support person is to act as [your] witness and support you throughout the meeting. Your support person may choose to take notes during the meeting and you may also request short breaks during the meeting to consult with your support person if you wish. Support persons must maintain confidentiality requirements which are stated at the commencement of the meeting. If the Blood Service believes that your support person is hindering open and honest communication (e.g. behaving in a domineering, disrespectful or disruptive way) they will be asked to leave, and the meeting will continue without them.

    EMPLOYEE ASSISTANCE PROGRAM

    The Blood Service and I recognise that work related issues can affect your quality of life.

    The EAP is available 24/7 for all staff and direct family members and the provider can be contacted on … I understand that this may be a difficult time for you. Therefore, if you have any questions, please contact Lana Rajsic – Senior HR Consultant on …

14. Ms Franic did not attend the meeting on 14 May 2014.  She did not attend work on that day, on the basis that she was unwell.  Ms Franic returned to work on 19 May 2014, took personal leave on 20 May 2014, and returned to work on 21 May 2014.  Ms Franic took personal leave on 26 and 27 May 2014.  She returned to work on 28 May 2014, but left work at 2.30pm.

15. On 30 May 2014, Mr Botterill sent Ms Franic another letter at 2.30pm requiring her to attend a second formal meeting on 5 June 2014 at 3pm.  The letter was as follows:

    Dear Romana

    RE: PERFORMANCE AND CONDUCT CONCERNS

    It is noted that you were unable to attend a meeting scheduled from 2.00pm Wednesday 14 May 2014 to discuss performance and conduct concerns due to you calling in on personal leave. The meeting has been rescheduled as per below.

    I request that you attend a meeting to discuss performance and conduct concerns.

    You have not abided by the agreed outcomes of the meeting you attended on Thursday 6 March 2014. During this meeting, you were advised that your performance and conduct would continue to be monitored, and any further breaches would result in further action.

    Subsequently to the abovementioned meeting, you have failed to:

    ·Demonstrate progress against the requirement of your Performance Improvement Plan (PIP) to address concerns regarding your conduct and performance, specifically around Service, Accountability and Code of Conduct

    ·Provide your daily task list by 28 March 2014, with a further extension being granted until 30 April. The task list was supplied on the 1^st May.

    ·     Escalate matters that you were not able to complete by their due date with sufficient advance notice.

    In addition to the above, you acted in an inappropriate manner by raising your voice repeatedly at me during our routine meeting on 2 May 2014 when I reaffirmed and reiterated the outcome from the failure to issue a blood pressure calibration kit to Hamilton which resulted in expired equipment. Your behaviour towards me in respondent to this was inappropriate. Further, you refused to accept accountability for your behaviour when I raised this with you at the PIP meeting on the 6 May 2014 and you stated that you were not committed to the PIP process.

    I request that you attend a meeting with me to discuss these concerns in full. At this meeting you will be given an opportunity to respond to the above matters and you are welcome to bring any documentation you believe will assist with your response.

    This meeting will be held at the Melbourne Processing Centre at 100-154 Batman Street, West Melbourne in Meeting Room 6 on Thursday 5 June 2014 at 15:00pm. It is likely that a Senior HR Consultant and I will conduct this meeting.

    FOLLOW UP MEETING

    You are also required to attend a follow up meeting with me in Meeting Room 6 following the above meeting at which you will be advised of the outcome of the Blood Service’s examination which may result in disciplinary action, up to and including termination.

    SUPPORT PERSON

    You are invited to have a support person (such as a family member or friend) attend the meeting with you. If you would like to have a support person present, please provide me with the details of your support person no later than one hour prior to the meeting.
    Your support person should not be any person who is a witness to work related issues that are likely to be discussed during the meeting.

    The role of the support person is to act as you witness and support you throughout the meeting. Your support person may choose to take notes during the meeting and you may also request short breaks during the meeting to consult with you support person if you wish. Support persons must maintain confidentiality requirements which are stated at the commencement of the meeting. If the Blood Service believes that your support person is hindering open and honest communication (e.g. behaving in a domineering, disrespectful or disruptive way) they will be asked to leave, and the meeting will continue without them.

    EMPLOYEE ASSISTANCE PROGRAM

    The Blood Service and I recognise that work related issues can affect your quality of life.

    The EAP is available 24/7 for all staff and direct family members and the provider can be contacted on … I understand that this may be a difficult time for you. Therefore, if you have any questions, please contact Lana Rajsic – Senior HR Consultant on …

1. Ms Franic did not attend that meeting, although she was at work.  She told Mr Botterill that HR would be hearing from her support person shortly.  Mr Botterill said that he would reschedule the meeting to 4pm, but Ms Franic did not attend then either. 

2. The meeting was rescheduled to 11 June 2014 at 2pm.  Ms Franic emailed Mr Botterill at 1.13pm on that day saying that she was unwell and was going home.

3. On 12 June 2014, Ms Franic’s current solicitor telephoned Mr Botterill and suggested that the Red Cross permit Ms Franic to resign and pay her a cash figure.  (There was no objection to this passage in Mr Botterill’s affidavit.)  Mr Botterill spoke to HR and then told Ms Franic’s solicitor that the Red Cross would accept Ms Franic’s resignation and pay out her notice period.  The solicitor said he would get instructions.

4. Also on 12 June 2014, Mr Botterill gave Ms Franic a letter of that date requiring her to attend a disciplinary meeting at 10am on 17 June 2014.  The letter was as follows:

   RE: DISCIPLINARY MEETING – FAILURE TO COMPLY WITH REASONABLE MANAGEMENT DIRECTION

   I refer to repeated attempts to meet with you to discuss performance and conduct concerns as outlined in the most recent letter to you dated 5 June 2014, directing you to attend a meeting at 2.00 p.m. on Wednesday 11 June 2014 (see attached).

   Subsequent to this direction, you again failed to attend the meeting scheduled for 2.00 pm on Wednesday 11 June 2014 and follow notification procedures for absences. You were provided with a formal direction to attend the scheduled meeting at COB Thursday 5 June 2014 and were reminded of the meeting, on the morning of 11 June 2014.  The letter also required that you or your support person was to contact me by no later than COB Tuesday 10 June 2014 if you wished to discuss the time and date of the meeting.

   At 1:19pm on 11 June 2014 you sent an email advising that you would be leaving the office as you were “not well”. The expectation as communicated to the Donor Services Support Hub team on 22 April 2014 in the “Process Notification of Absence from Duty (Vic/Tas)[”is] that you contact your manager by phone if you are to be absent from work. I also note that you have not provided a medical certificate for this absence.

   It is also noted that a formal performance and conduct meeting was conducted with you [on] 6 March 2014, and that in this instance you failed on numerous occasion to comply with reasonable management directions to attend the meeting. That is, the initial meeting request was for 21 November 2013 and the meeting was required to be re-scheduled on 7 occasions due to your failure to attend, prior to it taking place on 6 March 2014.

   Following your most recent failure to attend the performance and conduct meeting scheduled to take place at 2.00 pm on Wednesday 11 June 2014, you are directed to attend a disciplinary meeting to respond to the allegation that you have failed to comply with reasonable management directives:

   ·       to attend meetings to discuss performance and conduct concerns

   ·       to provide notice within prescribed timelines of your inability to attend formal meetings, most recently on 5 June and 11 June 2014

   ·       to comply with required notification processes to your manager in relation to absences from work

   If this allegation is substantiated, this is considered to be a serious breach of the Blood Service Code of Conduct and the Employee Performance Policy, specifically  the requirement for Employees to “Adhere to ARCBS policies and comply with lawful instructions” (see attached)

   At the meeting you will be provided with the opportunity to respond to the above allegation and show cause as to why the Blood Service should not terminate your employment. You are welcome to bring any documentation you believe will assist with your response.

   The meeting with take place at 10.00 a.m. on Tuesday 17 June 2014 in Meeting Room 7 at the Melbourne Processing Centre. If you fail to attend this meeting, the Blood Service will have no option but to make a determination of the matters based upon the evidence and information available to us. Both Carlie Ward, Senior HR Consultant and I will conduct this meeting.

   FOLLOW UP MEETING

   You are also required to attend a follow up meeting with me in Meeting Room 7 following the above meeting at which time you will be advised of the Blood Service determination of the matter.

   SUPPORT PERSON

   You are invited to have a support person (such as a family member or friend) attend the meeting with you. If you would like to have a support person present, please provide me with the details of your support person no later than one hour prior to the meeting.
   Your support person should not be any person who is a witness to work related issues that are likely to be discussed during the meeting.

   The role of the support person is to act as [your] witness and support you throughout the meeting. Your support person may choose to take notes during the meeting and you may also request short breaks during the meeting to consult with your support person if you wish. Support persons must maintain confidentiality requirements which are stated at the commencement of the meeting. If the Blood Service believes that your support person is hindering open and honest communication (e.g. behaving in a domineering, disrespectful or disruptive way) they will be asked to leave, and the meeting will continue without them.

   I understand that this may be a difficult time for you. I would also like to remind you that free and confidential counselling is available through the Blood Service’s Employee Assistance Program, which can be contacted on … – 24 hours a day, 7 days a week.

   Should you have any questions regarding the content of this letter, please contact me at your earliest convenience.

5. At 4.14pm on 16 June 2014, Ms Franic emailed Mr Botterill stating that she was attending a dental appointment on 17 June 2014 when the disciplinary meeting was scheduled and would bring a certificate on

   
   

   18 June 2014.

6. At 4.38pm on 16 June 2014, Mr Botterill telephoned Ms Franic and said her leave the following day was not approved.  Mr Botterill telephoned Ms Franic a little later and asked her the time of her appointment.  She said it was at midday.  She said that it would not take more than one hour to get to her appointment.  Mr Botterill said that she was expected at work on 17 June 2014 from her normal starting time until 11am.  Mr Botterill went to speak to Ms Franic at her desk and reiterated that she was expected at work the following morning.  He also said that, if she did not attend the meeting, a decision would be made in her absence.

7. At 5pm on 16 June 2014, Ms Franic’s solicitor telephoned Mr Botterill and said that six month’s pay would be more reasonable.  (There was no objection to this passage in Mr Botterill’s affidavit.)

8. Ms Franic did not attend the disciplinary meeting on 17 June 2014 and did not attend work at all on that day.  Ms Bower issued Ms Franic with a further letter, essentially giving her 48 hours to explain why her employment should not be terminated.  That letter said the following:

   Dear Romana

   RE: NOTICE OF DETERMINATION REGARDING DISCIPINARY MEETING

   I refer to the disciplinary meeting that was scheduled for 10.00am on Tuesday 17 June 2014. You were provided with notice of this meeting on Thursday 12 June 2014 and were directed to attend the meeting to respond to the allegations to be put to you and show cause as to why the Blood Service should not terminate your employment.

   While you provided notice at 4.16 p.m. on Monday 16 June 2014 that you had a dental appointment on 17 June 2014, upon further inquiry you advised that the appointment was at 12.00 noon. Your manager advised that you were still required to attend the meeting and assured you that you would be able to leave by 11.00 a.m. to attend your appointment by 12.00 noon.

   As you failed to comply with reasonable management direction to attend this meeting and provide a response, the Blood Service has formed the conclusion based on the information available to us, that your employment should be terminated. However the Blood Service has also determined to provide you with a further 48 hours to provide reasons in writing as to why your employment should not be terminated on the following grounds:

   1. You have failed to meet the requirements of your role as outlined in your Position Description and you have further failed to comply with reasonable measures that management has put in place to improve your performance to the required standard. In particular:

   a.  You have not demonstrated progress against your Performance Improvement Plan (PIP) to the required standard and have refused to actively participate in the process as demonstrated by the statement you made to your manager that you were not committed to the PIP process.

   b. You have failed to abide by and meet requirements of the agreed action items arising from your first written warning discussion, which were put in place to support you including your failure to provide daily task list and to escalate matters in accordance with requirements specified by the warning.

   2. Your Manager and the Blood Service have lost trust and confidence in your ability to perform the requirements of your role to the required standard and to perform your role in accordance with the Blood Service Code of Conduct and Values. This has resulted from your failure to appropriately engage in the process and accept appropriate feedback and support from your manager and the Blood Service. This has been demonstrated by the inappropriate conduct you have demonstrated towards the process and your manager in meetings and other face to face, telephone and email interactions.

   3. You have repeatedly failed to comply with reasonable management directions to attend formal performance, conduct and disciplinary meetings or provide notice, within prescribed timelines, of your inability to attend formal meetings. This is a breach of the Blood Service Code of Conduct and the Employee Performance Policy, specifically the requirement for Employees to “Adhere to ARCBS policies and comply with lawful instructions.”

   As a result of all of the above, the Blood Service has lost trust and confidence in you as an employee and believes that the employment relationship has irretrievably broken down.

   As stated, the Blood Service now provides you with an opportunity to provide reasons in writing by 10.00 a.m. on Friday 20 June 2014 as to why the Blood Service should not terminate your employment. The response should be provided to me in either hard copy or by email: … with a copy to Josie Scarfo, Regional HR Manager Vic/Tas: … by no later than the prescribed time.

   The Blood Service has decided that it is not appropriate for you to continue to perform your duties until this matter is resolved. Accordingly, you are stood down on full pay and you are not to attend work until you receive further notice. You will continue to receive your full pay during this period.

   During this time, you will remain an employee of the Blood Service and you will continue to be bound by its policies and procedures and the terms of your contract of employment. However, you are not permitted to:

   ·     contact any other employee of the Blood Service about any work-related matter; or

   ·     discuss this matter with any other employee of the Blood Service other than your Manager, Human Resources or support person (where relevant)

   A failure to comply with this instruction may prejudice the outcome of this disciplinary matter and may also constitute misconduct.

   If you do provide a response by 10.00 a.m on Friday 20 June 2014, the Blood Service will consider your response and advise you of the outcome. The outcome may be that your employment will be terminated.

   If you do not provide a response by 10.00 a.m. on Friday 20 June 2014, the Blood Service will terminate your employment, effective Friday 20 June 2014.

   I understand that this may be a difficult time for you. I would also like to remind you that free and confidential counselling is available through the Blood Service’s Employee Assistance Program, which can be contacted on … – 24 hours a day, 7 days a week.

   Should you have any questions regarding the content of this letter, please contact me at your earliest convenience.

9. As indicated in that letter, it was decided to suspend Ms Franic on full pay. On 18 June 2014, Ms Franic attended work. She was given Ms Bower’s letter. On 19 June 2014, Ms Franic filed an application under s.372 of the Act in the Fair Work Commission. Ms Franic did not provide any other response to Ms Bower’s letter. Ms Franic’s employment was terminated on 20 June 2014 by letter of that date. It said:

   Dear Romana,

   RE: NOTICE OF TERMINATION OF EMPLOYMENT

   I refer to the “Notice of Determination Regarding Disciplinary Meeting” provided to you on Wednesday 18 June 2014. In that notice you were advised that the Blood Service had determined to provide you with a further 48 hours to provide  reasons in writing as to why your employment should not be terminated. The letter further advised that the response was to be provided by 10.00 a.m. on Friday 20 June 2014, and that if you do not provide a response by 10.00 a.m. on Friday 20 June 2014, the Blood Service will terminate your employment, effective Friday 20 June 2014.

   You failed to provide a response to the Blood Service outlining any reason why your employment should not be terminated. Accordingly, I regretfully advise that the Blood Service has decided to terminate your employment on the following grounds:

   1. You have failed to meet the requirements of your role as outlined in your Position Description and you have further failed to comply with reasonable measures that management has put in place to improve your performance to the required standard. In particular:

   a. You have not demonstrated progress against your Performance Improvement Plan (PIP) to the required standard and have refused to actively participate in the process as demonstrated by the statement you made to your manager that you were not committed to the PIP process.

   b. You have failed to abide by and meet requirements of the agreed action items arising from your first written warning discussion; which were put in place to support you including your failure to provide daily task list and to escalate matters in accordance with requirements specified by the warning.

   2. Your Manager and the Blood Service have lost trust and confidence in your ability to perform the requirements of your role to the required standard and to perform your role in accordance with the Blood Service Code of Conduct and Values. This has resulted from your failure to appropriately engage in the process and accept appropriate feedback and support from your manager and the Blood Service. This has been demonstrated by the inappropriate conduct you have demonstrated towards the process and your manager in meetings and other face to face, telephone and email interactions.

   3. You have repeatedly failed to comply with reasonable management directions to attend formal performance, conduct and disciplinary meetings or provide notice, within prescribed timelines, of your inability to attend formal meetings. This is a breach of the Blood Service Code of Conduct and the Employee Performance Policy, specifically the requirement for Employees to “Adhere to ARCBS policies and comply with lawful instructions”.

   As a result of all of the above, the Blood Service has lost trust and confidence in you as an employee and believes that the employment relationship has irretrievably broken down.

   The termination of your employment is effective Friday 20 June 2014 and you will be provided with 5 weeks pay in lieu of notice in addition to all outstanding entitlements. This payment will be deposited by electronic funds transfer into your nominated bank account on the next pay date of Thursday 26 June 2014.

   I understand that this may be a difficult time for you. I would also like to remind you that free and confidential counselling is available through the Blood Service’s Employee Assistance Program, which can be contacted on … – 24 hours a day, 7 days a week. This counselling service will remain available to you for up to 3 months beyond your termination date of

   
   

   20 June 2014.

The formal warning

1. The first issue is whether the Red Cross took adverse action against Ms Franic, consisting of issuing her with a formal warning on 6 March 2014, because she had exercised her workplace right:

   a)           to take personal leave on seven occasions; and/or

   b)           to make complaints about her excessive workload.

2. The respondents accepted that the formal warning constituted adverse action as defined in the Act. However, they submitted that the formal warning was issued for reasons relating to the applicant’s performance and conduct, rather than the reasons put forward by Ms Franic. Under s.361 of the Act, it is to be presumed that the adverse action was taken for the reasons put forward by Ms Franic unless the respondents prove otherwise.

3. The authorities make it clear that the first step is to identify who took the adverse action, so that person’s or those persons’ reasons can be determined.  Ms Franic said in closing submissions that the sole decision maker in relation to the formal warning was very probably Mr Botterill.  The respondents did not submit otherwise.  Therefore, I proceed on the basis that Mr Botterill was the sole decision maker in relation to the formal warning issued to Ms Franic on 6 March 2014, even though, at paragraph 103 of his affidavit, Mr Botterill said “we”, meaning he and Ms Rajsic, decided to issue the formal warning.

4. At paragraph 103 of his affidavit, Mr Botterill said the decision to issue the formal warning was based on:

   a)      Ms Franic’s responses during the meeting on 6 March 2014;

   b)      her refusal to accept responsibility for the Hamilton calibrator incident; and

   c)      the ongoing issues with her performance.

5. Mr Botterill said in has affidavit that he went to the meeting with a prepared script.  It was as follows:

   SCRIPT FOR MEETING w ROMANA FRANIC + JOANNE CUNNINGHAM
   (PROFESSIONALS AUSTRALIA)

   THURSDAY 6 MARCH 2014

   Introduction / Purpose of Meeting

CBThank you for attending this meeting. The purpose of this meeting is to discuss matters highlighted in the letter sent to you in regarding performance and conduct

One support person present?
We note that you have brought a support person with you. The purpose of the support person is to listen and support the person with them. Your support person can discuss issues in confidence with you and the may take notes during the meeting. We are happy to pause should you need to consult with them prior to responding to any questions.

Process Outline

CBI’m briefly going to explain the process today before going into any details.

We will be discussing the concerns raised in the letter given to you raising specific concerns relating to your performance and/or conduct.

You will be given the opportunity to respond during the discussion today.

After we cover all the matters raised, we will take a short break to consider your responses and determine an outcome based on evidence at hand.

Following this break, we will reconvene and advise you of the outcome of our examination, which may include disciplinary action.

Do you understand the process?

Statement of Concerns

CBI have identified ongoing performance concerns with you previously in an informal manner, such as the non-delivery of calibration kits in August of last year and also in Mildura in July where the kit was requested in May 2013.

During these discussions, I explained the consequences of further incidents and we agreed that you would put in place systems to assist you and ensure that similar issued don’t happen again.

On Wednesday 13 November 2013, an issue was raised at the Hamilton Donor Centre that the Blood Pressure (BP) calibrator kit had not been received. The BP devices within the Hamilton Donor Centre were due to be calibrated during October, and as they hadn’t received their kits, the devices expired.

Part of your role as an Equipment Coordinator, is to organise the delivery of BP calibration kits to Donor Centres to ensure the equipment remains compliant and in working order [to] meet our regulatory requirements. Your failure to organise the delivery of the kits in a timely manner had the potential to result in a cessation of collections at the Hamilton Donor Centre, compromised donor safety, created a risk of non-compliant equipment being used [in] a GMP regulated environment and impacted on productivity and process flows on the day.

What is your understanding regarding your role’s responsibilities in relation to BP kits?

Can you tell me your understanding of the implications of not having calibrated equipment onsite?

Can you tell me why you didn’t send the kit in a timely manner?

If you didn’t have the kits, why didn’t you raise this with me?

Subsequently to the incident that occurred on the
13 November, further performance concerns were identified, when you failed to respond to my request to provide me with a summary of events which lead to you not sending out the calibration kits to the Hamilton Donor Centre.

Can you tell me why you didn’t acknowledge or respond to my email?

Why did you fail to respond even though the email was marked as urgent?

Further questions may need to be asked during the meeting depending on her answer.

On February 11 2014, you sent me an email regarding your failure to attend the meeting scheduled for that day. The tone of your email to me, your manager, was inappropriate and is in breach of the Blood Service Values and Code of Conduct.

According to the Code of Conduct, it is all employee’s responsibility to treat other staff fairly and with respect. The CoC also states that employees will be accountable for their own behaviours and actions.

How do you respond?

In light of this, do you believe that your email to me was appropriate considering our professional relationship?

Concluding Remarks

CBIs there anything else you would like to add?

You have been given the opportunity to respond and make comments, and as I mentioned previously we will now take a short break to consider your responses.

When we return we will present you with the outcome of our examination.

Do you have any questions?

END OF MEETING

ADDITIONAL INFORMATION

Referring to Romana’s email to you on 11/02/2014 at 3.59pm, there is a chance that she will bring up similar issues, which you will need to have answers prepared for so that you’re able to keep the meeting on track.

Some of the things to keep in mind are:

·     Is she doing overtime and has it been approved?

·     Have we done anything to compromise safety regulations and TGA guidelines?

·     Do we know what the regulations and guidelines are?

·     Why is an Incident Report an inappropriate action to take in these situations?

·     Would the OH&S legislation cover any of these incidents?

·     Clearly be able to explain why some deviations result in performance issues and others don’t

·     Was a deviation ever raised? If so, what’s the status? Print and bring along

Requests for Hamilton staff or other parties, you can respond by explaining that this is not an investigation and there will be no other parties involved in the process. (errors in original)

1. Mr Botterill described the meeting in his affidavit as follows:

   98. In the meeting I raised three concerns with the Applicant as set out in the Formal Meeting request letter, namely:

   (a)the Calibrator Incident in the context of previously failing for deliver calibrator kits (sic);

   (b)the Applicant’s failure to provide a summary of events leading up to the Calibrator Incident, as requested by me on 13 November 2013;

   (c)the Applicant’s tone in an email sent to me on
   11 February 2014 after she refused to attend the scheduled Formal Meeting.

   99. During the meeting, it was difficult to keep the discussion on track and on several occasions I had to keep bringing the Applicant’s focus back to the topic we were discussing at the time. The Applicant provided her response to each of the three issues, namely

   (a)the Calibrator Incident occurred because her workload was too onerous. I responded by reminding the Applicant that I had been asking her for a workload list for a number of months and that without a workload list I could not do a workload analysis to work out how to assist her. I also stated that the Applicant had been advised on numerous occasions to use the BEIMS system to prompt her when tasks such as these were due so that she could action them;

   (b) she did not think a summary was required as a deviation report was provided to me. At the time of the meeting, I had seen a copy of the original Deviation as submitted by Ms Templeton. I responded to the Applicant that whilst I had seen the Deviation submitted by Ms Templeton, I had not seen any response from the Applicant at that time, despite me having requested this of her; and

   (c)she did not think there was anything inappropriate in her email to me.

   100. The Applicant’s attitude, body language and behaviour during the discussion were wholly inappropriate. On four occasions Ms Rajsic had to interrupt the Applicant to ask her to lower her voice, and a further four times to ask the Applicant to respect me and let me finish answering her questions and address her concerns. Overall, the Applicant refused to accept any responsibility or accountability for her actions in relation to the Calibrator Incident.

   101. I refer to paragraph 51 of the Franic Affidavit and say that the Applicant did complain about OH&S issues and asked why the Blood Service was not following processes. I advised the Applicant that this was not a OH&S matter and that advice had been sought from our OH&S consultant at the time, Ms Allison Mead, confirming this.

   102. I refer to paragraph 52 of the Franic Affidavit and say that the Applicant’s email of 11 February 2014 was discussed in the meeting. I advised the Applicant that the e-mail contained tone such as capitalising, bolding and underlining words and that it was not in alignment with the Blood Service’s Value of collaboration.

2. Ms Franic submitted that Mr Botterill’s claims about his reasons for issuing the warning should not be accepted for a number of reasons. 

3. Firstly, Ms Franic submitted that Mr Botterill admitted in cross examination that Ms Franic’s failure to deliver the calibrator kit to the Hamilton donor centre on time was not deliberate and that she worked to the best of her ability.  I do not consider that these matters undermine the credibility of Mr Botterill’s stated reasons.  He never suggested that Ms Franic was deliberately failing to achieve the required time frames.  Rather, his consistent claim was that Ms Franic was disorganised, by, for example, failing to regularly check BIEMS to find out when tasks were due.

4. Secondly, Ms Franic submitted that Mr Botterill’s requests for daily work lists did nothing to help reduce Ms Franic’s excessive workload.  However, Mr Botterill’s requests for daily work lists were not intended, in themselves, to alleviate any work load problems.  Rather, they were intended to ascertain whether there was a workload problem at all. 

5. Also, Ms Franic’s submission assumes that her workload was excessive.  She attributes her failures to meet deadlines to an excessive workload.  However, the question for this court is not whether Ms Franic had an excessive workload, or whether she was treated fairly.  The question for this court is whether Mr Botterill’s reasons for issuing the formal warning were as he claimed or as Ms Franic claimed. 

6. In relation specifically to Ms Franic’s workload, it is clear from Mr Botterill’s evidence that he did not consider that Ms Franic did have an excessive workload.  He maintained that Ms Franic’s interstate counterparts could manage their workloads, and others who filled in when Ms Franic was away could also manage at least the bulk of her workload.  Consequently, I am not persuaded that Ms Franic’s allegations about her excessive workload detract from the credibility of Mr Botterill’s evidence about his reasons for issuing the warning.

7. Thirdly, Ms Franic submitted that Mr Botterill went into the meeting on 6 March 2014 with a prepared script, which showed that he did not want to accept that Ms Franic had an excessive workload.  I do not see anything untoward in Mr Botterill going into the meeting with a prepared script.  The meeting was a serious step and considerable care was needed with what was said.  The script was a sensible precaution.  As previously discussed, Mr Botterill did not consider that Ms Franic had an excessive workload. The question for the court is not whether Mr Botterill went into the meeting with a fixed view about whether Ms Franic’s workload was excessive.  Rather, the question for the court is, what were his actual reasons for issuing the warning?

8. Fourthly, Ms Franic said that Mr Botterill did not read her statement in the deviation report about the Hamilton calibrator incident because he was determined to issue the warning regardless of her response.  Ms Franic’s statement in the deviation report, under the heading, “Describe the remedial actions required”, was, “Raise workload issue with management”.  However, Mr Botterill’s evidence in re-examination was that, although he did not see the physical document that Ms Franic had completed, or an electronic copy of it, he had seen the text recorded in that document in the quality systems register.  I accept that evidence.  Consequently, the factual foundation for this submission is lacking.

9. Fifthly, Ms Franic submitted that, in cross examination, Mr Botterill was unable to nominate any Code of Conduct values that Ms Franic’s email of 11 February 2014 had breached, and could only say that her tone was not collaborative.  In fact, Mr Botterill also said that Ms Franic’s tone was abrupt and he nominated phrases used by Ms Franic such as, “Let me remind you” and “your actions are illegal”.

10. Overall, Ms Franic’s email of 3.59pm on 11 February 2014 was aggressive and argumentative.  She may have thought that she was raising valid points about occupational health and safety and incident reports.  However, she had raised them previously and management had already decided that her points were not valid.  In my view, Mr Botterill’s stated concerns about the email were open to him, and give credence to his stated reasons for issuing the formal warning.  Having said that, I do not consider that the email alone would have warranted a formal warning.

11. Sixthly, Ms Franic submitted that the Hamilton calibrator incident was described in the deviation report as minor, but the respondents persisted in exaggerating its importance.   As the Red Cross saw it as necessary to exaggerate the significance of the Hamilton calibrator incident, Ms Franic argued, her actual performance was not sufficient to justify the warning that followed.

12. The description of the Hamilton calibrator incident in the deviation report as minor must be seen in the context of deviations that can result in very serious health outcomes, such as the notorious transmission of HIV from donated blood.  On a spectrum that includes incidents of that magnitude, the Hamilton calibrator incident probably was properly characterised as minor.  However, that does not mean that it was not a serious lapse.  It generated considerable work for other staff and created risks of various sorts, including to the Red Cross’s TGA licence and compliance with the GMP.  Consequently, it is plausible that Mr Botterill did perceive the Hamilton calibrator incident, with the other matters he identified, as sufficiently serious to justify a formal warning. 

13. Seventhly, Ms Franic argued that the respondents had falsely asserted that the blood pressure calibrator kits had expired, when in fact they had “passed calibration with no adverse consequences”.  However, the fact is that Ms Franic sent some calibration kits much later than the Red Cross’s procedures required.  If there were no serious adverse consequences, that was merely fortuitous.  However, at the very least, Ms Franic’s tardiness generated additional work and worry for other staff.

14. Eighthly, Ms Franic said that she had not attended the series of requested meetings because the Red Cross had not complied with her simple request to provide an agenda and sufficient notice for the meeting.  There was absolutely no need for the Red Cross to provide an agenda for the meeting.  The topics to be discussed were set out in the letter requiring Ms Franic to attend the meeting.  Nothing more was required.

15. The amount of notice provided for the meetings seems to me to have been sufficient.  The subjects of the meetings were discrete topics of which Ms Franic had personal knowledge.  In any event, by the time Ms Franic did attend the meetings, she had received weeks’ or months’ notice of what was to be discussed, and she had a professional adviser in attendance by telephone for the meeting on 6 March 2014.

16. However, the question before the court is not whether Ms Franic was given natural justice, or whether she was treated fairly or reasonably.  The question is simply whether the reasons for the warning were Mr Botterill’s stated reasons, or prohibited reasons, or some other reasons.  

17. Ms Franic submitted that, for the above mentioned reasons, it could be seen that Mr Botterill had made up his stated reasons for issuing the formal warning, and that his real reasons were that Ms Franic had complained about her workload and taken personal leave.

18. I accept that a person’s stated reasons for a particular action can properly be doubted if they have no connection with reality.  On the other hand, a person might be completely mistaken about a particular fact, but that supposed fact might nevertheless genuinely be the reason for that person’s actions. 

19. For example, an employer might dismiss an employee for theft.  If it were proved that the employee had not stolen any property, the court would still need to consider whether the employer genuinely believed that the employee had stolen the property. If so, the court would probably find that the reason for the dismissal was the supposed theft, rather than any prohibited reason that the employee suggested. If not, then the court would probably conclude that the dismissal was for whatever prohibited reason the applicant proposed.

20. In the present case, I found Mr Botterill’s stated reasons for issuing the warning to be plausible.  His credibility was not significantly damaged in cross-examination.  I am satisfied that Mr Botterill genuinely perceived Ms Franic to have seriously underperformed, to have been rude in her email of 11 February 2014 and to have been rude and aggressive in the meeting on 6 March 2014.  On balance, I accept that Mr Botterill decided to issue the formal warning for those reasons.  That is, I consider that the respondent’s have discharged the reverse onus of proof in relation to the formal warning.

The threat to dismiss

1. Ms Franic alleged that the Red Cross took adverse action against her by threatening to dismiss her because she had exercised her workplace right:

   a)      to take personal leave on seven occasions;

   b)      to make complaints about her excessive workload; and

   c) to make a complaint or enquiry under s.341(1)(c) of the Act in that she had instructed her lawyers to negotiate a resolution prior to her termination.

2. Ms Franic alleged that Ms Scarfo-Williams threatened her with dismissal in that Ms Scarfo-Williams told Ms Franic’s solicitor, Mr McDonald, that Ms Franic’s employment would be terminated if she failed to attend the scheduled meeting on 17 June 2014. Ms Franic said that the dismissal threat altered her position to her prejudice and hence was adverse action as defined in the Act.

3. The respondents argued that Ms Scarfo-Williams had not threatened Ms Franic with dismissal, but with possible disciplinary action, if she did not attend the scheduled meeting on 17 June 2014.  Ms Franic said in reply that whether Ms Scarfo-Williams threatened dismissal or possible disciplinary action was neither here nor there, because both versions of the threat amounted to adverse action.

4. Ms Scarfo-Williams denied at paragraph 36 of her affidavit that she had threatened that Ms Franic would be dismissed if she attended her dental appointment and said that she had told Mr McDonald that Ms Franic may be subject to disciplinary action if she did not attend the formal meeting because it was a reasonable management direction. Ms Scarfo-Williams was not cross-examined about that issue. Mr McDonald was not called as a witness. The only evidence in support of Ms Franic’s version of this particular event was contained in paragraph 74 of her first affidavit which was struck out by consent.

5. In these circumstances, I accept Ms Scarfo-Williams’s version of her statement to Mr McDonald. That is, I accept that Ms Scarfo-Williams told Mr McDonald that, if Ms Franic did not attend the meeting, she might be subject to disciplinary action because requiring her to attend the meeting was a reasonable management direction.   

6. I do not accept that Ms Scarfo-Williams’s statement altered Ms Franic’s position to her prejudice. That is because the Red Cross could have taken the action it eventually did whether Ms Scarfo-Williams had made the statement or not. Moreover, Ms Scarfo-Williams merely stated the possible consequences of Ms Franic’s non-attendance at the meeting, and ensured that she was aware of those consequences. Therefore, I do not accept that Ms Scarfo-Williams statement to Mr McDonald constituted adverse action as defined in the Act.

7. For completeness, I note that Ms Scarfo-Williams said in her affidavit that her reason for issuing the threat was that requiring Ms Franic to attend the meeting on 17 June 2014 was a reasonable management direction.  Ms Franic argued that it was not reasonable to require her to attend a meeting on 17 June 2014 at 10am because she had a dental appointment at 12md on that day.  However, Mr Botterill had ascertained that it would take one hour for Ms Franic to travel to the dental appointment and he had undertaken to ensure that the meeting would finish by 11am.  In those circumstances, and in all the circumstances of this case, I consider that it was a reasonable management direction to require Ms Franic to attend the meeting on

   
   

   17 June 2014 at 10am.

8. Ms Scarfo-Williams was not cross examined about the reasons for making her statement to Mr McDonald.  I accept her affidavit evidence that she made that statement to Mr McDonald because it was a reasonable management direction to require Ms Franic to attend the meeting on 17 June 2014.  I do not accept that Ms Scarfo-Williams made that statement for any of the prohibited reasons suggested by Ms Franic.  That is, I accept that the respondents have discharged the reverse onus of proof in relation to this issue.

The dismissal

1. Ms Franic alleged that the Red Cross took adverse action against her by dismissing her because she had exercised her workplace right:

   a)      to take personal leave on seven occasions;

   b)      to make complaints about her excessive workload;

   c) to make a complaint or enquiry under s.341(1)(c) of the Act in that she had instructed her lawyers to negotiate a resolution prior to her termination; and

   d) under s.341(1)(a) and (b) of the Act, to make an application to the Fair Work Commission prior to termination.

2. The respondents accepted the obvious fact that Ms Franic’s dismissal was adverse action as defined in the Act. However, the respondents said that her dismissal was not for any of the reasons alleged by Ms Franic but rather for the reasons set out in the letter dated 18 June 2014.

3. The decision to dismiss Ms Franic from her employment was made by Ms Scarfo-Williams and Ms Bower.  Ms Scarfo-Williams said at paragraph 53 of her affidavit that her decision was based on:

   a)      Ms Franic’s failure to comply with reasonable management directions to attend meetings;

   b)      her failure to improve her work performance;

   c)      her failure to engage with the performance improvement process; and

   d)      her failure to respond to the show cause notice, being the letter dated 18 June 2014.

1. Ms Bower said at paragraph 71 of her affidavit that she made the decision to terminate Ms Franic’s employment due to:

   a)      her failure to respond to the letter dated 18 June 2014;

   b)      her poor performance; and

   c)      her ongoing refusal to follow reasonable management directions.

2. Ms Franic argued that the reasons offered by Ms Scarfo-Williams and Ms Bower were not the real reasons for their decision to terminate Ms Franic’s employment. 

3. Ms Franic noted that Ms Scarfo-Williams and Ms Bower had both admitted under cross examination that they had no information about the matters set out in the letter dated 18 June 2014, except information provided by Mr Botterill.  Ms Franic said that Ms Bower had been alerted to the serious differences between Mr Botterill’s version of events and Ms Franic’s version of events by the letter from Ms Franic to Ms Wilson.  Ms Franic said that Ms Bower, in those circumstances, should have taken additional steps to check the veracity of what Mr Botterill had said.  Ms Franic submitted that Ms Scarfo and Ms Bower were reckless as to the truth and, therefore, the reasons stated in the termination letter cannot be taken to be the real reasons for Ms Franic’s termination from her employment.

4. However, Ms Franic’s conclusion does not follow.  The issue in an adverse action case is not what should have happened if proper enquiries had been made, but what were the actual reasons for the adverse action.  In the present case, it was not surprising that Ms Scarfo-Williams and Ms Bower accepted Mr Botterill’s version of events, as he was more senior than Ms Franic.  While Ms Scarfo-Williams and Ms Bower might have taken a different view if they had looked more closely at the history of the matter, the fact is that they did not.  They may have been mistaken about the rights and wrongs of Ms Franic’s work history and her interactions with Mr Botterill.  But that does not mean that their stated reasons for the dismissal were not their actual reasons. 

5. Ms Franic also argued that Mr Botterill had set her up by failing to respond to her numerous cries for help and by failing to advise Ms Scarfo-Williams and Ms Bower of this.  I do not accept that there was anything untoward in the respondents not accepting Ms Franic’s claims that her workload was excessive.  In any event, the question is, what were the actual reasons for Ms Scarfo-Williams and Ms Bower deciding to terminate Ms Franic’s employment?  On the evidence, there were numerous instances where Ms Franic had performed poorly, had failed to comply with reasonable management directions and had failed to engage with a performance improvement process.  It cannot be said in this case that the reasons given by Ms Scarfo-Williams and Ms Bower were not supported by reasonable evidence.

6. Ms Franic also said that, contrary to the view taken by Ms Scarfo-Williams and Ms Bower, she had responded to the letter of 18 June 2014, which gave Ms Franic an opportunity to say why her employment should not be terminated.  Ms Franic said her response was her application in the Fair Work Commission.  That application sets out a great deal of Ms Franic’s versions of events but does not squarely and concisely say why Ms Franic’s employment should not be terminated.  I consider that Ms Scarfo-Williams and Ms Bower were correct to not regard it as a response to the letter of 18 June 2014. 

7. Ms Franic also said that Ms Scarfo-Williams and Ms Bower:

   a)      chose not to consider the issue that Ms Franic had repeatedly raised about being overworked; and

   b)      chose not to try to assist Ms Franic, in circumstances where she had repeatedly said that she was overworked and had been absent due to ill-health on a number of occasions.

8. Those allegations may be true.  However, again, they do not mean that the reasons given by Ms Scarfo-Williams and Ms Bower for terminating Ms Franic’s employment were not their actual reasons.  Ms Scarfo-Williams and Ms Bower obviously did accept what Mr Botterill told them about Ms Franic’s work performance, and there was a proper basis for doing so. 

9. Taking into account all of the circumstances of this case, and all of the evidence presented, I am satisfied that the reasons stated by Ms Scarfo and Ms Bower for their decision to terminate Ms Franic’s employment were their actual reasons.  That is, I am satisfied that the respondents have discharged the reverse onus of proof on this issue.

Section 352: absence due to illness or injury

1. Ms Franic alleged that the Red Cross dismissed her contrary to s.352 of the Act because she was temporarily absent from work due to illness or injury of a kind prescribed by the regulations.

2. To the extent that this allegation concerned Ms Franic’s absence from work on 17 June 2014 to attend a dental appointment, the respondent argued that such appointments were not illnesses or injuries as defined in the Act. Under s.352 of the Act, an employer must not dismiss an employee due to temporary absence from work due to illness or injury as defined in the regulations. Regulation 3.01 of the regulations defines such illnesses and injuries.

3. However, whether or not a dental appointment is an illness or injury as defined, for the reasons set out above, I do not accept that Ms Franic was dismissed for reasons connected with any injury, illness or dental appointment she may have had. 

Section 550: accessorial liability

1. Ms Franic alleged that Ms Scarfo-Williams and Ms Bower were knowingly concerned in the Red Cross’s contraventions. However, as I have found that the Red Cross has no liability under the Act, Ms Scarfo-Williams and Ms Bower have no liability either.

Conclusion

1. As none of Ms Franic’s grounds has been made out, the application must be dismissed.  The parties have all sought to be heard on the question of costs.  Consequently, costs will be reserved.

I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge Riley.

Date: 10 February 2016