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 Regulations 2009 (Cth), r.3.01 |
| 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:
The application filed on 18 August 2014 be dismissed.
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
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…
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- Case
- [2016] FCCA 209
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the Red Cross took adverse action against Ms Franic for a prohibited reason under section 346 of the *Fair Work Act 2009* (Cth), and whether her dismissal was in contravention of section 352 of the Act. Additionally, the court needed to consider the liability of the second and third respondents as accessories under section 550 of the Act for any contraventions by the Red Cross. Central to these determinations was the interpretation and application of sections 360 and 361 of the Act, which deal with the definition of "reason" for taking action and the statutory presumption that applies in adverse action proceedings.
In reaching its decision, the court applied the principles established in *Board of Bendigo Regional Institute of Technical and Further Education v Barclay*. This precedent dictates that for an applicant to succeed in an adverse action claim, the prohibited reason must be a "substantial and operative factor" in the employer's decision-making process. The court considered the evidence presented by both parties, including the extensive history of Ms Franic's performance issues, her complaints about workload, and the various communications and meetings leading up to her dismissal. The court found that the Red Cross had established that Ms Franic's performance and conduct were the substantial and operative reasons for the adverse action taken against her, and that these reasons were not prohibited reasons under the Act. The court also found that the evidence did not support the claim that Ms Franic was dismissed contrary to section 352 of the Act.
Consequently, the application filed by Ms Franic was dismissed. The question of costs was reserved.
Orders
Orders of the court
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
2.
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.
3.
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
4.
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)
5.
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.
6.
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.
7.
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
8.
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.
9.
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.
10.
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.
11.
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.
12.
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
18.
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.
19.
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.
20.
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.
21.
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.
22.
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.
23.
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.
24.
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.
25.
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.
26.
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.
27.
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.
28.
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.
29.
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”).
30.
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.
31.
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.
32.
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.
33.
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.
34.
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 21st 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 21st 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 …
35.
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.
36.
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.
37.
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.
38.
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.
39.
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.
40.
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.
41.
Ms Franic returned to work on 2 January 2014. During the intervening time other employees had completed her work in her absence.
42.
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 -27th 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.
43.
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.
44.
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 13th 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)
45.
On 12 February 2014, Ms Wilson replied to Ms Franic by email saying that she was required to attend the formal meeting.
46.
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 …
47.
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.
48.
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.
49.
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.
50.
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.
51.
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
52.
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 28th 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 …
53.
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.
54.
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!
55.
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.
56.
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!
57.
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.
58.
Ms Franic denied those allegations, except that she agreed that she had refused to accept the directive.
59.
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 1st 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 …
60.
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.
61.
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
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.