George v Northern Health (No.3)
[2011] FMCA 894
•28 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GEORGE v NORTHERN HEALTH (No.3) | [2011] FMCA 894 |
| INDUSTRIAL LAW – General protections application – claim employment terminated as a result of applicant making complaint or inquiry – respondent’s burden of proof – application dismissed. |
| Fair Work Act 2009 (Cth), ss.336, 340, 341, 342, 351, 352, 360, 361, 370(2) Federal Magistrates Court Rules 2001 (Cth), r.15.09A |
| Bency George v Northern Health [2011] FMCA 445 Bency George v Northern Health (No.2) [2011] FMCA 853 Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2011] FCA FC 14 Khiani v Australian Bureau of Statistics [2011] FCAFC 109 Sallehpour v Frontier Software Pty Ltd [2005] FCA 247 Galvin v Renito Pty Ltd [1999] FCA 1005 Jones v Dunkel (1959) 101 CLR 298 General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235 Ramos v Good Samaritan Industries (No.2) [2011] FMCA 341 Khiani v Australian Bureau of Statistics [2010] FCA 1059 |
| Applicant: | BENCY GEORGE |
| Respondent: | NORTHERN HEALTH |
| File Number: | MLG 1571 of 2010 |
| Judgment of: | O’Sullivan FM |
| Hearing date: | 20 October 2011 |
| Date of Last Submission: | 20 October 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 28 November 2011 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Mr Millar |
| Solicitors for the Respondent: | Middletons |
ORDERS
The application filed on 12 November 2010 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1571 of 2010
| BENCY GEORGE |
Applicant
And
| NORTHERN HEALTH |
Respondent
REASONS FOR JUDGMENT
On 12 November 2010 Bency George (“the applicant”) filed a general protections court application making allegations of a breach of s.340 and 341 of the Fair Work Act 2009 (“the Fair Work Act”). The applicant alleges that Northern Health (“the respondent”) terminated her employment because she had exercised a workplace right and made a complaint against her manager. The respondent denies this and says that the applicant was terminated because of poor work performance.
Background facts
In what follows a statement of fact constitutes a finding of fact unless the context suggests otherwise.
The applicant lives in Victoria. The applicant, has a diploma from St Johns Pharmacy College, Bangalore. Between 2000 and 2010 the applicant lived in New South Wales and worked as a Pharmacy Technician and Administration Officer at Canterbury Hospital.
In 2010 the applicant moved to Victoria. The applicant applied for a “maternity leave replacement” position of Pharmacy Technician with the respondent. The respondent provides health services across several campuses in the Melbourne metropolitan area including the Northern Hospital at Epping, Bundoora Extended Care Centre, Broadmeadows Health Services and Craigieburn Health Service.
On 28 May 2010 the applicant was offered a fixed term position (maternity leave cover) by the respondent as a Pharmacy Technician. The offer was expressed in terms that the “employment status” was “full time employee-fixed term until 18 March 2011.” The offer of employment was “subject to a probationary period of six months.”
On 21 June 2010 the applicant commenced employment with the respondent.Initially the applicant undertook training at the respondent’s Epping campus and after two weeks commenced at the Broadmeadows campus where she continued until her employment was terminated on
6 September 2010. It is the events surrounding and in the lead up to that termination that concern the controversy between the parties in these proceedings.
Procedural background
The application filed on 12 November 2010 was given a first return date of 28 January 2011. On 23 November 2010 the respondent filed a notice of address for service. The first return date of the application was vacated by consent and the matter came before the Court for directions on 11 March 2011.
By this time the respondent had filed a response on 25 February 2011, and the following orders and directions were made:
“1.The proceedings shall be subject to mediation to be held by 1 May 2011 with the mediation to be conducted by a Registrar of the Court as mediator appointed by the Registrar of the Court.
2.The trial shall proceed on affidavit evidence with the affidavits of each witness if adopted to stand as the evidence in chief of the witness.
3.The Applicant file and serve any affidavit material and any documents upon which he intends to rely at final hearing on or before 13 May 2011.
4.The Respondent file and serve any affidavit material and any documents on which it intends to rely at final hearing on or before 20 May 2011.
5.The Applicant have until 27 May 2011 to file any further affidavit material in reply.
6.The parties to file and serve an outline of submissions addressing relevant legislative provisions and a minute of orders sought on or before 3 June 2011.
7.The proceeding be listed for trial in the Federal Magistrates Court at Melbourne at 10:00 am on 6 June 2011 with an estimated hearing time of 1 day.
8. There be general liberty to apply for both parties.”
On 28 April 2011 Job Watch filed a notice of address for service on behalf of the applicant. The parties attended a mediation and following a further directions hearing on 20 May 2011 at which Job Watch were given leave to withdraw as the applicant’s solicitors the matter returned to Court on 6 June 2011. Before the Court that day, as well as the substantive application was an application in a case filed by the applicant on 27 May 2011 for an adjournment of the hearing.
For the reasons set out in Bency George v Northern Health [2011] FMCA 445 on 6 June 2011 the applicant’s request for an adjournment was granted and the following orders were made:
“1. The applicant’s adjournment application be granted.
2.The respondent’s costs thrown away as a result of the adjournment be fixed at $1,320.00 and those costs be reserved.
3.The hearing be adjourned to 20 October 2011 at 10.00am (with an estimate of 2 days) at the Federal Magistrates Court of Australia at Melbourne.
4.The applicant file with the Court and serve on the respondent all affidavit material 28 days prior to adjourned date.
5.The respondent file with the Court and serve on applicant any further affidavit material on which it seeks to rely 14 days prior to adjourned date.
6.The applicant and respondent file and serve an outline of submissions 72 hours prior to adjourned date.”
Following this the applicant sought assistance from the Public Interest Law Clearing House (“PILCH”) and filed a subpoena on 8 August 2011. After the respondent filed a notice of objection to the subpoena the matter returned to Court on 14 September 2011. Both parties were represented and the subpoena was set aside pursuant to Rule 15.09A of the Federal Magistrates Court Rules 2001 (“the Rules”). The matter remained fixed for hearing on 20 October 2011.
On 23 September 2011 the applicant filed an affidavit. On 10 October 2011 another notice of address for service was filed on behalf of the applicant. There were also submissions filed on behalf of the applicant on 18 October 2011.
Also on 18 October 2011 the applicant acting on her own filed another application in a case supported by an affidavit sworn that day. In that application in a case the applicant sought an adjournment of the hearing.
On 20 October 2011 solicitors who had filed the notice of address for service on 10 October 2011 on behalf of the applicant having been engaged pro bono through PILCH were given leave to withdraw pursuant to Rule 9.03 of the Rules as there had not been the requisite agreement under the Legal Profession Act 2004 (Vic) signed.
Then for the reasons delivered ex tempore in Bency George v Northern Health (No.2) [2011] FMCA 853 the request for an adjournment made by the applicant in the application in a case filed 18 October 2011 was refused and the hearing proceeded.
Hearing
At the hearing on 20 October 2011 the applicant confirmed she relied on:
·the application and Form 4 filed 12 November 2010;
·her affidavit filed 23 September 2011; and
·submissions filed on her behalf on 18 October 2011.
Mr Millar of Counsel who appeared on behalf of the respondent, told the Court his client relied on:
·the response filed 25 February 2011;
·the affidavit of Liam Carter sworn 3 June 2011;
·the affidavit of Barbara Hunt also sworn 3 June 2011; and
·the respondent’s submissions filed 2 June 2011.
After explaining to the applicant the material the Court would have regard to and the manner in which the hearing would proceed the applicant gave evidence and was cross examined as did the witnesses upon which the respondent relied. At the close of the evidence, each of the parties had the opportunity to make submissions and the Court reserved its decision.
Relevant legislation
The applicant’s claim is a general protections court application as defined in s.370(2) of the Fair Work Act to mean “an application to a Court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.” Section 370(2) is contained in Part 3-1 of the Fair Work Act. For the purposes of this application the following are relevant legislative provisions.
Section 336 of the Fair Work Act provides:
“The objects of this Part are as follows:
(a) to protect workplace rights;
(b) to protect freedom of association by ensuring that persons are:
(i) free to become, or not become, members of industrial associations; and
(ii) free to be represented, or not represented, by industrial associations; and
(iii) free to participate, or not participate, in lawful industrial activities;
(c) to provide protection from workplace discrimination;
(d)to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part.”
Section 340 of the Fair Work Act provides:
“(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right;
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.
Note: This subsection is a civil remedy provision (see Part 4-1).”
Section 341 of the Fair Work Act provides:
“(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or …
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee--in relation to his or her employment.”
Section 342 of the Fair Work Act relevantly provides:
“(1) Adverse action is taken by an employer against an employee if the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee's prejudice; or
(d) discriminates between the employee and other employees of the employer.
…
(2) Adverse action includes:
(a) threatening to take action covered by the table in subsection (1); and
(b) organising such action.
(3) Adverse action does not include action that is authorised by or under:
(a) this Act or any other law of the Commonwealth; or
(b)a law of a State or Territory prescribed by the regulations.
(4) Without limiting subsection (3), adverse action does not include an employer standing down an employee who is:
(a) engaged in protected industrial action; and
(b) employed under a contract of employment that provides for the employer to stand down the employee in the circumstances.”
Section 351 of the Fair Work Act provides:
“(1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or
(b) taken because of the inherent requirements of the particular position concerned; or
(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed--taken:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3) Each of the following is an anti-discrimination law :
…”
Section 352 of the Fair Work Act provides:
“An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.”
Sections 360 of the Fair Work Act provides:
“For the purpose of this Part a person takes action for a particular reason if the reasons for the action include that reason.”
Section 361 of the Fair Work Act provides:
“(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.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.”
Approach to legislative provisions
These provisions were considered by the Full Court of the Federal Court in Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2011] FCA FC14 (“Barclay”). In that case the majority said (albeit in the context of considering the provisions of s.346 in Part 3-1 of the Fair Work Act) at paragraphs [27] to [34] that:
“[27]The central question under s 346 is why was the aggrieved person treated as he or she was? If the aggrieved person was subjected to adverse action, was it “because” the aggrieved person did or did not have the attributes, or had or had not engaged or proposed to engage in the industrial activities, specified by s 346 in conjunction with s 347?
[28]The determination of those questions involves characterisation of the reason or reasons of the person who took the adverse action. The state of mind or subjective intention of that person will be centrally relevant, but it is not decisive. What is required is a determination of what Mason J in Bowling (at 617) called the “real reason” for the conduct. The real reason for a person’s conduct is not necessarily the reason that the person asserts, even where the person genuinely believes he or she was motivated by that reason. The search is for what actuated the conduct of the person, not for what the person thinks he or she was actuated by. In that regard, the real reason may be conscious or unconscious, and where unconscious or not appreciated or understood, adverse action will not be excused simply because its perpetrator held a benevolent intent. It is not open to the decision-maker to choose to ignore the objective connection between the decision he or she is making and the attribute or activity in question.
[29]So much is evident from the use of the word “because”. It is also consonant with the objective and protective purposes of s 346. Further, it is consistent with the approach to construction taken in relation to provisions in anti-discrimination legislation where, in a similar context, the word “because” is utilised: see in particular Purvis at [142]–[166] per McHugh and Kirby JJ and at [234]–[236] per Gummow, Hayne and Heydon JJ; and Toben v Jones [2003] FCAFC 137 ; (2003) 129 FCR 515 at [31] per Carr J, [61]–[63] per Kiefel J and [151] per Allsop J.
[30]Section 360 continues the long-standing position that, where adverse action is taken against a protected person, culpability will be established if the reasons for that conduct include a reason for conduct that is within the ambit of s 346. The reason must be an operative or immediate reason and need not be the sole or dominant reason (see the Explanatory Memorandum at para 1458). But the drawing of distinctions between proximate or immediate reasons for conduct (Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349; (2001) 112 FCR 232 at [216]), or between the cause of conduct and the reason for conduct (Greater Dandenong at [164]), is not helpful. Those distinctions fail to give sufficient attention to whether or not the reason was operative, and they also draw distinctions between a reason and a factor in a reason. As Gray J (with whom Woodward and Jenkinson JJ agreed) said in Lewis Construction Co Pty Ltd v Martin (1986) 17 IR 122 at 125:
(i)The Act and the authorities do not distinguish between a “reason” and a “factor”; indeed, in Bowling, these terms are used interchangeably.
[31]Further, that no distinction is to be drawn between the cause of conduct and the reason for conduct is supported by our earlier conclusion at [24] as to the meaning of “because” and the interchangeable use by the relevant provisions (ss 340, 346 and 360, 361) of cause and reason.
[32]The onus cast by s 361 on the person taking the adverse action means that, to succeed, that person has to establish that he or she was not actuated by the attributes or industrial activity which s 346 seeks to protect. As Mason J said in Bowling at 617, that objective will not be achieved unless the evidence establishes that the real reason for the adverse action lies outside the ambit of the provision — in this case s 346. The real reason or reasons for the taking of the adverse action must be shown to be “dissociated from the circumstances” that the aggrieved person has or had the s 346 attribute or has or had engaged in or proposes to engage in the s 346 industrial activity.
[33]It is important, however, to appreciate that not all of the circumstances specified by s 346 (in conjunction with s 347) are circumstances specified for the purpose of identifying whether the causal link of an operative reason exists. Objective facts, dependent on the determination of questions of mixed fact and law, have now been included in s 346 to a much greater extent than they were in the section’s predecessors. Section 347 is replete with examples. For instance “lawful activity” in (b)(ii) and (iii) and “lawful request” in (b)(iv). Whether a person is or is not a member or officer of an industrial association is also a fact to be ascertained objectively by reference to a legal standard, usually the rules of the association.
[34]It is for an applicant to prove the existence of objective facts of the kind we have identified: see Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2010] FCA 590 at [44] and the cases there cited. The specification in ss 346 and 347 of facts of this kind is designed to delineate the area of protection from adverse action afforded by s 346. For instance, an employee is not protected by s 346 (in conjunction with s 347(b)(ii)) where the activity promoted for or on behalf of an industrial association is not a lawful activity. However, it is not necessary that the subjective belief held by the person accused of the adverse action about such a fact should correlate with the legal conclusion as to the existence or non-existence of that fact. Thus a contravention of s 346 (in conjunction with s 347(b)(ii)) may occur where the activity promoted by the employee was lawful, but where the employer taking the adverse action held a subjective belief that it was not. In such a case, a failure by the employer to establish that the real reason for the taking of the adverse action was dissociated from the circumstance that the employee was promoting a lawful activity for or on behalf of an industrial association will result in a finding of contravention, irrespective of the employer’s subjective belief that the activity was unlawful. The “connection” between the adverse action and the industrial activity will be sufficiently made out in those circumstances: see the Explanatory Memorandum at para 1400.”
In Ramos v Good Samaritan Industries (No.2) [2011] FMCA 341 at paragraph [40] Driver FM said of the decision in Barclay (supra) that:
“40.The majority of the Full Federal Court held that the employer must show that the “real reason” or reasons for taking the adverse action are “dissociated from [the impugned] circumstances:
(a)the real reason may not be the reason that the relevant decision maker asserts it is;
(b)the real reason is not necessarily the reason the employer thinks it might have been – it might be an unconscious reason – and it does not matter that the employer had a benevolent intent; and
(c)if there is an objective connection between the decision to take the action and the attribute or activity in question (for example, exercising a workplace right) a conclusion can be reached that the action we taken because the person affected had that attribute, or engaged in that activity.”
In addition to the decision in Barclay (supra) the legislative provisions relevant to this application have been considered in a subsequent Full Court decision in Khiani v Australian Bureau of Statistics [2011] FCAFC 109, (“Khiani”) where at paragraphs [31] to [36] it was said:
“31.…A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts. In the present case, the question is whether the respondent has taken adverse action against the appellant because she had a workplace right to be on sick leave, or because she had exercised that right.
32.The first question to be addressed in such a case is whether adverse action was taken. Determining this question requires identification of the adverse action alleged. In the present case, the appellant’s further amended application identified injury in her employment “by workplace stress due to underperformance action imposed and employment terminated”; alteration of the appellant’s position to her prejudice “by imposing underperformance action”; and discrimination between the appellant and other employees of the respondent, the nature of which was not explained by means of particulars or otherwise. To the extent to which the appellant raised allegations of adverse action prior to 1 July 2009, including the decision to review her performance and the actions taken in respect of that review, the primary judge was correct to say that it was not open to the appellant to allege adverse action, because the Fair Work Act is not retrospective in its application. The appellant could have amended her claim to rely on the provisions of the Workplace Relations Act that continue to operate in respect of conduct prior to 1 July 2009, if she wished to contend that what was done in relation to her performance review prior to that date was adverse action. She did not do so. Accordingly, as the primary judge said, it was only the preliminary decision and the final decision to terminate the appellant’s employment to which the appellant could point as adverse action.
33.To the extent to which the appellant attempted to claim on appeal that the requirement to respond within seven days to the preliminary decision amounted to the taking of adverse action, there is a question whether she was attempting to make a case she had not made before the primary judge. Although, at one point when she was addressing the primary judge during the trial, the appellant said that she was asked to respond to the preliminary decision while she was on sick leave and that she had responded, stating that she was on sick leave, she did not appear to be raising this issue as an aspect of adverse action. Her complaint was that Ms Jones did not give any consideration to the fact that she was on sick leave. If the appellant were intending to raise this form of adverse action by that submission, she was doing so in final addresses, after Ms Jones had given evidence. An attempt to raise the issue on appeal has the effect of depriving the respondent of the opportunity to call evidence specifically in relation to it. As the respondent carried the onus of proving, on the balance of probabilities, of the absence of a causal connection between adverse action and a right to take, or the taking of, sick leave, pursuant to s 361(1) of the Fair Work Act (with the exception of the interim injunction claim, which does not appear to have been pursued in any event), the appellant ought not to be permitted to raise a new claim of adverse action on appeal.
34.The question therefore is whether the adverse action to which the preliminary decision and the final decision to terminate the appellant’s employment amounted was taken because the appellant had a right to sick leave or had exercised it. The same question arises in relation to sick leave as a workplace right, pursuant to s 340(1), or because of the direct ban on dismissal during temporary absence from work because of illness or injury, pursuant to s 352 of the Fair Work Act. In each case, the respondent was required to prove that neither the preliminary decision nor the final decision was taken because the appellant was on sick leave.
35.The primary judge accepted that the written reasons for the preliminary decision, and for the final decision, were the operative reasons for those decisions. The reasons for making those decisions did not include the fact that the appellant was on sick leave.
36.At [64] of her reasons for judgment, the primary judge said that the appellant had “not established that the adverse action against her was taken because of a workplace right.” That conclusion involved a misstatement of the incidence of the onus of proof. Pursuant to s 361 of the Fair Work Act, the onus of proof as to causation fell on the respondent. Despite this error, it is clear from what was said earlier in her Honour’s reasons for judgment that the respondent had discharged its onus in relation to both the preliminary decision and the final decision. The primary judge accepted the evidence of Ms Jones as to what her reasons were. She did so in the context of the circumstances of the case, which would have made the opposite conclusion remarkable. The fact that there was a temporal connection between the adverse action and the taking of leave by the appellant did not require the conclusion that there was a causal connection. In circumstances in which the preliminary decision and the final decision were the culmination of a long process of attempting to review the performance of the appellant, in which she failed to achieve a satisfactory level of performance and otherwise frustrated the conduct of the process, makes it abundantly clear that the respondent was not simply taking advantage of the fact that the appellant was on leave in order to dismiss her.”
Against that background, the relevant legislative provisions and the authorities of the Federal Court the Court now turns to consider the application and response in these proceedings.
Application
The application filed 12 November 2010 was supported by a Form 4 which set out that the respondent was alleged to have contravened:
“Section 340/341. A person must not take adverse action against another person (sic) because the person has a workplace right or to prevent the exercise of a workplace right by and (sic) person. A person has a workplace right if the person is able to make a complaint or enquiry (sic).”
In the Form 4 accompanying the application, when asked to describe the action the applicant claims had been taken the applicant said:
“I have sent an email to Liam Carter the deputy director of Pharmacy about the Pharmacy-in-charge (sic).”
In that Form 4 the applicant sought by way of a remedy that there be an order for compensation. The amount of compensation was not particularised.
In submissions filed on 18 October 2011 it was contended:
“1. The Applicant submits that:
(a)she exercised a workplace right by making a complaint or inquiry to Liam Carter about the pharmacist in charge at Broadmeadows, Mr Ihab Barsoum (“Bob”) by telephoning him on 13 August 2010 and/or sending the email dated 16 August 2010 to Liam Carter (“LC-2”);
(b)further or alternatively, she exercised a workplace right by making an inquiry in relation to her employment by sending the email dated 5 September 2010 with attachments relating to expiry checks to Liam Carter (“LC-3”);
(c)the Respondent terminated the Applicant’s employment “because”:
(i) the Applicant exercised such workplace right by making the complaint or inquiry about Bob; and/or
(ii) the Applicant exercised such workplace right by sending the email and attachment relating to expiry checks exhibited as “LC-3” to Liam Carter.
2.The Applicant has alleged in this proceeding that the Respondent took action (termination of her employment) for a particular reason, being her complaint about Bob (see affidavit of the Applicant, paragraph 71).”
Exhibit BG3 to the applicant’s affidavit filed on 23 September 2011 was a termination of employment notice dated 6 September 2010 which recorded that the reason for termination was:
“…
Reason for termination: Poor work performance/compliance and interpersonal problem with line manager
…”
The applicant relied on her affidavit filed 23 September 2011. Having set out the background to her employment and what she said she did, the applicant deposed:
“33.On Friday 13 August 2010 when I was discarding the expired drugs Bob came across a bottle and syringe in the pharmaceutical waste bin. The bin was just a cardboard box on the floor, and was used to put various items to be thrown out such as expired injections, tablets, oral liquids, and inhaler sprays. He hot very angry and started screaming and gave me a scary look. I told him I put the syringe in there because it was in the sealed packet which was okay. I told Bob you don’t have to scream at me, you can just talk properly. Then I asked him, “where is the bin for asthma puffers? All he said was to call Les and ask him. I asked him why should I call Les, he doesn’t even work here? Bob did not respond.
34.Then I called Les and explained to him what happened and he said to speak to Liam, When I telephoned Liam he was not in his office. I left a message for him to call me back, and he returned my call shortly later. I explained to him what had happened with Bob but not in much detail. He came to Broadmeadows that evening what I was about to go home. He did not speak to me about the matter at that time.
Email to Liam Carter about Bob
35.Late on Sunday night I sent an email to Liam from home regarding Bob, which is exhibited to Liam Carter’s affidavit which is Exhibit “LC2”. I had spoken about some of the issues with Bob to other staff members, but I wanted to put it in writing and send it to Liam so that there was a record of what had happened and so they couldn’t deny that something had happened or that they didn’t know about it. I wanted Liam to take it seriously and to do something about how Bob had been treating me. I did not get any response to my email from Liam at any time.
No discussion with Liam Carter
36.The next day, Monday the 16th of August 2010, Liam came to Broadmeadows however he did not speak to me about my email about Bob or the issues it raised. I refer to paragraph 8 of Liam Carter’s affidavit and say that there was any such discussion with me on Monday 16 August 2010 or at any other time. I believe Liam may have spoken to Bob that day but I am not really sure. I did notice that Bob’s behaviour towards me improved that day. He seemed more relaxed towards me and did not scream or yell at me after that. Bob’s behaviour was generally better after that apart from a few comments here and there that I did not like.
No further training
37.I refer to paragraph 11 of Liam Carter’s affidavit. I did not get any further training from Les Kirby. Les Kirby and I together sorted out the problems in the wards and theatre as described above. The only new thing I was shown by Les was how to record on the computer an adjustment to the computer record when expensive stock was returned from the wards to the pharmacy shelves.
Computer issues
38.During the period between 16 August 2010 and the end of August 2010, both Bob and Liam had done stock adjustments on the computer using my login user name. The system automatically records who has done the adjustment according to who is logged in at the time.
39.About the end of August, Les Kirby came across stock adjustments on the computer under my name which I believe he pointed out to Liam. Liam came to the pharmacy and said to me “About these adjustments I have blocked you from making any more stock adjustments”. I pointed out to Liam on the computer the items he himself had adjusted using my login. I also told him that Bob did stock adjustments on my computer without my knowledge but he did not accept that and told me I just think Bob did it. I was upset that he did not believe me.
40.I understood Liam to have meant that I would only be blocked from doing stock adjustments. However when I came back to the computer later that day or on morning? I was not able to receive the drug orders on the computer. I told Bob. He just said “if you can’t do it then give it to me”. Bob said that he would fix the problems. I left it and went to the wards to check the imprest stock. When I came back to the computer to record the imprest stock orders the computer wouldn’t let me do it. I told Bob again that I couldn’t do the work. I think Bob then contacted Liam about these problems. I believe Liam can block people’s access to their computers from his office. I also sent Liam an email from my work email address that I was having these problems and to let him know that there will be delays if I cant get on to the computer and do things. I sent the email in case I was questioned about why things had not been done. I do not have a copy of this email. Liam came to the pharmacy the next day, did something to my computer and said “if you have any more issues, call me”. By the end of the day I was able to do all tasks on the computer except stock adjustments.
Expiry checks
41.On 3 September 2010 when I was doing the expiry checks in the ward I came across a few things which I thought I should bring to Liam’s attention as I had told Bob about them a few times but he didn’t give me any feedback at all. This email (Exhibit “LC3” to Liam Carter’s affidavit) was sent on Sunday night 5 September at 10.02pm. I sent it from home as I did not have time to write the email while at work. I sent it to Liam because I was seeking his help as to what to do about those matters and to ask Bob to send an email to the nursing staff about the drug cupboard.
Termination Meeting – 6 September 2010
42.On 6 September 2010, I went to work at Broadmeadows. I was about 30 minutes late. I arrived at about 9.15am. When I got there, Liam was waiting for me in corridor near the Human Resources department. When I saw Liam in the corridor, he said “Okay Bency, we’ll got to the HR first”. I said “Okay” and I just followed him. I didn’t know what he was going to do. I though he was going to discuss the email I had sent to him the pervious night about expiry checks with Barbara.
43.We went into Barbara’s office. Barbara was already sitting in her seat. When we walked in, Liam spoke first “Okay, this is Bency”. I hadn’t met Barbara before. Liam said “We are her to discuss a couple of things”. He started to talk about emails sent from theatre in some detail. He did not show the emails to me. He said things like Bency failed to provide those medications to the theatre. I think I said this is a common issue at the pharmacy.
44.Then he mentioned the email I had sent to him about Bob dated 16 August 2011 (Exhibit “LC2”). He said that Barbara “Bency sent me an email about some problems she having with Bob in the Pharmacy”. He did not describe to Barbara what I had said in that email. He made a point of saying to Barbara that I had sent the email from home. I didn’t understand why he made a point about that.
45.Liam said “Bency had problems with some of the staff in the pharmacy”. I interrupted him and said that I didn’t have any problems with any of other staff, just with Bob. I said “from the time I started my training in Northern, he was troubling me”. I told them that:
(a)at the end of the first day that Bob was in the pharmacy with me, he came and asked me whether I had don’t the ordering:
(b)I responded to Bob that I was not trained to do the ordering;
(c)Bob said that he thought I went to Northern to do all the training;
(d)Bob made me stay back until 5:30pm that night and also the following day to do the ordering.
(e) I had spoken to the other staff members about this.
46.Liam interrupted me and said that I didn’t speak to him about this issue. I said that I didn’t want to complain on my first day. He then interrupted me again and started speaking about the theatre running out of supplies.
47.Liam said that I couldn’t remember things. I disputed that. I mentioned that there are interruptions to my work when he or others request that I deliver the medication to the wards. He said there were complaints about me from the theatre. He said there were emails from the theatre. He didn’t show me these emails at the meeting.
48.Barbara then said that there had been complaints about me from the theatre about my performance and not providing the medications. I explained to her that I had problems in the pharmacy because Bob was not giving any advice about how to control the supply of medications to the wards. I said when I approached Bob for instructions, he didn’t give me any and tells me to call Les.
49.Then I told him about the email that I sent detailing Bob’s behaviour (Exhibit “LC2”). I told them that Bob had been screaming and yelling at me in the pharmacy. I said his behaviour towards me was not acceptable and was not good.
50.Liam interrupted me and said “Yes, Bency, when that issue was there, I came down to speak to you”. He then said to Barbara “Bency couldn’t adjust to being in a small team, So I think I’m going to terminate her”.
51.I said to them “That’s not right. I am not the person creating the problems, and I didn’t have any other problems with anyone else in the pharmacy”.
52.Then Barbara said “Okay Bency, there are performance issues”. At some point, Barbara mentioned that Les came down to help me but my performance was still not good enough. I think she then said that “Liam’s decision is right and we’re going to terminate you”.
53.I said “That’s not right, the performance issue is not right”, and “I can’t promise that none of the wards will not run out of medications”. I said words to the effect that “if it was my performance, why didn’t I get any warning about?” I can’t recall whether they responded to this or not.
…
58.When I got home after the meeting, I sent Liam an email at 11:13am 6 September 2011 (Exhibit “LC4” to Liam Carter’s affidavit). I wrote “thanks for all the support you have given me”. I wrote this because Liam had initially been supportive towards me in the following ways:
(a)Liam had agreed to be my mentor in my completion of Certificate IV in Pharmacy Support which I had previously enrolled in – with support of my mentor – in New South Wales. The mentorship included training on the job under the supervision of a pharmacist. He signed some of the relevant paperwork which allowed him to become my mentor. However, as the Certificate was through a New South Wales university, the mentorship could not commence until Liam completed further paperwork. At the time of my termination, he had not commenced the mentorship though he had agreed that he would do so.
(b)On occasions Liam made himself available and did answer my question and provide some guidance to me during the training period at Northern.
(c)Liam allowed me some time off work to go home to delivery of my household goods which were being delivered at short notice from New South Wales.
59.In the second paragraph of my email, I stated “About the disposal no one had mentioned anything to me. You can ask Les. The week when Les came to Broadmeadows that is the first time I started sorting the ward returns. Bob never told me anything. That is the truth”. I was referring to the incident between Bob and I about the syringe in its packaging being in the cardboard box bin. I mentioned this because Bob never told me how to dispose of anything.
60. I did not get a response from Liam to this email.”
Response
In the response filed 26 February 2011 the respondent opposed the orders sought by the applicant and sought that the application be dismissed.
The respondent’s reasons for opposing the application, in the response filed 26 February 2011 were as follows:
“1.The Applicant’s employment with the Respondent was not terminated by reason of her exercising a workplace right or for reasons including her exercising a workplace right.
2.The Respondent terminated the Applicant’s employment during her Qualifying Period for reasons relating to the Applicant’s performance, including:
(a)difficulty remembering tasks and procedures having been shown on a number of occasions by more than one person;
(b)failure to utilise time effectively and to prioritise tasks;
(c)lack of attention to detail including a frequent failure to scan pharmaceutical items and the incorrect entry of names and quantities of pharmaceutical items into the computer system;
(d)frequent use of her personal mobile phone during work hours, including during training sessions which the Applicant had specifically requested;
(e)lack of knowledge regarding standard pharmacy procedures including with respect to the storage and disposal of drugs and use of the specialised computer programs; and
(f)lack of communication skills and an inability to function well in a team environment.”
The respondent relied on inter alia the affidavit of Mr Liam Carter, Pharmacist sworn 3 June 2011. In that affidavit Mr Carter (who is the Deputy Director of Pharmacy for the respondent and responsible for the pharmacy division in which the applicant was employed) deposed:
“…
5.Soon after her commencement, problems were evident in the Applicant’s performance. It became clear to me that the Applicant was not competent in her role. In particular the Applicant:
(a)had difficulty in remembering tasks and procedures which had already been shown or explained to her;
(b)failed to untilise (sic) her time effectively to prioritise tasks;
(c)showed a lack of attention to detail, particularly concerning a frequent failure to scan pharmaceutical items and incorrectly entering names and quantities of pharmaceutical items into the computer system;
(d)frequently used her personal mobile telephone during work hours;
(e)demonstrated a lack of knowledge of standard pharmacy procedures, and in particular the storage and disposal of pharmaceutical items – for example which items were to be refrigerated and which were not, and the property disposal procedures for discarded pharmaceuticals;
(f)showed a lack of communication skills and an inability to function well in a team environment.
6.The performance issues referred to above were based on my own observations, and were supported by discussions with other staff who worked with the Applicant, and in particular Mr Barsoum, Les Kirby (the Manager of Pharmacy Inventory Control) and Cattia Ferdaws (a pharmacist who has subsequently left the Respondent’s employment). Of particular concern were orders from the Applicant of incorrect quantities of pharmaceuticals – demonstrated by e-mails which were copied to Ihab Barsoum dated 5 August 2010 (1 page), and from Lilly Chan dated 9 August 2010 (3 pages). Now produced and shown to me and marked LC-1 are copies of the said e-mails. Of further concern were the Applicant’s responses to performance issues that where raised with her. She constantly replied with words along the lines of “No one has shown me”, “You haven’t taught me”, “They did things differently where I last worked” etc.
7.On 13 August 2010, I received a telephone call from the Applicant. She wanted to speak to me about concerns which she was having about criticism from Mr Barsoum about her performance in that role. I travelled over to Broadmeadows as soon as I was able to, but arrived just as the Applicant was leaving. I went in and spoke to Mr Barsoum, who was obviously frustrated about the Applicant’s performance. He told me that he had to speak with her concerning her failure to correctly dispose of syringes and drugs. He said he did raise his voice at the Applicant but he denied that he had shouted at her. He also expressed his frustration and concerns that the Applicant was not performing her duties properly. The focus of his concern was that he could not get through to her. I emphasised with Mr Barsoum that we should “draw a line” under what had happened and move forward.
8.On Monday morning, 16 August 2010, I travelled into work via Broadmeadows where I spoke to the Applicant. We had a discussion about the incidents of the previous week. We agreed that the incidents were over, and that we would draw a line and move forward. I told her I did not necessarily agree with what she was saying but that it was important to resolve the matter and move on. This was to similar effect as my discussion with Mr Barsoum three days before.
9.Following the discussion I received an e-mail which the Applicant had sent at 12.09 am on 16 August 2010, which was similar in content to the discussion which I had held with the Applicant on Friday 13 August 2010. Now produced and shown to me and marked LC-2 is a copy of the said e-mail and attachment.
10.I did not again deal with, refer to, or consider, the Applicant’s email of 16 August 2010, or the discussions with Mr Barsoum and the Applicant on 13 and 16 August 2010. As far as I was concerned, that issue had been dealt with.
11.In the weeks that followed, the issues concerning the Applicant’s performance continued to accrue. She was provided with an additional week’s training by Les Kirby, the Manager of Pharmacy Inventory Control (as well as the initial standard two weeks’ training that was provided to the Applicant). My observations of the Applicant’s performance, and discussions with others with whom she worked, made it clear to me that the employment relationship was not operating satisfactorily.
12.On Friday 3 September 2010, I had a discussion with Mr Barsoum and informed him I would be coming over with Barbara Hart to talk with the Applicant on Monday, first thing. I did not discuss with Mr Barsoum the complaint which the Applicant had made about him.
13.That afternoon, 3 September 2010, I visited Barbara Hart, Senior employee Relations Consultant of the Respondent. We discussed the poor work performance of the Applicant, who was by that stage half was through her probationary period. Barbara asked me, “Do you think it is going to work?” I said, “No”. At this meeting, as decided in principle that the employment would be terminated during the probationary period, subject only to anything the Applicant might say which changed that view.
14.On the morning of Monday, 6 September 2010, Ms Hart and I travelled to Broadmeadows and met with the Applicant. I told he that her performance was unsatisfactory, and discussed with her the problems which had been identified with her performance. I told her that we had reached the view that her employment would be terminated, subject to anything she might say in response. She did not provide any response which gave us reason to not proceed to termination of employment. We offered the Applicant the opportunity to resign, but the Applicant elected to instead be terminated by the Respondent.
15.Following the termination of employment, I received two emails from the Applicant. The first was sent the previous night, on 5 September 2010, concerning an “expiry check” which the Applicant had apparently conducted. Although I was unaware of the email at the time of the termination of employment, as I had travelled directly to Broadmeadows without checking emails, its contents would not have changed the decision that was taken. Now produced and shown to me and marked LC-3 is a copy of the said email and attachment. The second email was sent following the termination of employment, on 6 September at 11.13 am. Now produced and shown to me and marked LC-4 is a copy of the said email.”
The affidavit of Mr Carter exhibited a series of emails. Those emails detail concerns about the applicant’s performance that were raised with Mr Carter since early August 2010 and before the complaint relied on by the applicant.
The Respondent also relied on the affidavit of Ms Barbara Hart, Human Resource Manager for the respondent sworn 3 June 2011.
In that affidavit Ms Hart deposed:
“…
3.I first became aware of performance issues concerning the Applicant when Liam Carter, the Deputy Director of Pharmacy came to see me on Friday 3 September 2010. Mr Carter explained to me that there were a range of performance issues concerning the Applicant, and in particular her ability to retain information and her ability to perform fundamental parts of her position. Mr Carter told me that the Applicant had been provided with more than adequate training, yet was still unable to perform her role.
4.I asked Mr Carter whether he believed the Applicant would be able to improve sufficiently for the arrangement to work. He told me he did not. On that basis, it was agreed that approval would be sought from the CEO of the Respondent to terminate employment. I spoke to the CEO that afternoon who gave formal approval to the decision to terminate employment, subject to anything which the Applicant said when we met with her.
5.Mr Carter and I met with the Applicant at Broadmeadows on 6 September 2010. Mr Carter explained the performance issues which the Respondent had. The Applicant did not say anything at the meeting which gave reason to change the in principle decision to terminate her employment. The Applicant was offered the opportunity to resign, but refused.”
6.The Applicant was provided with two weeks’ pay in lieu of notice. Her last day of employment was 6 September 2010.”
Consideration
I have not recited, nor do I intend to recite all of the evidence that was presented at hearing although all of that evidence has been considered and taken into account. The Court’s consideration of this matter has been assisted by the helpful written submissions filed by both parties.
Having had the opportunity to observe the applicant give evidence and be cross-examined it is clear she regards herself as having been unfairly dealt with by the respondent.
However I note what was said by Marshall J, in Sallehpour v Frontier Software Pty Ltd [2005] FCA 247 at [38], where his Honour pointed out that proceedings of this sort do not call upon the Court to determine whether the termination of the applicant’s employment was in itself fair or unfair.[1]
[1] see also Khiani v Australia Bureau of Statistics [2010] FCA 1059 at [8]
Whilst the applicant was unrepresented at the hearing, on the basis of my observations of her during the hearing she had no difficulty recalling issues that she believed were important to her case.
However, whilst I am satisfied she sought to give her evidence truthfully on the balance of probabilities the version of events given by Mr Carter where it is in conflict is more probable than the applicant’s version.
This is an unfortunate case where it appears the applicant has convinced herself, only she was in the right. It appears the applicant is so aggrieved by the termination of her employment that she has reconstructed events in her own mind in an effort to fit them into a scenario that she believes her employment had been terminated because or for the reasons including that she had made a complaint or inquiry.
In this application whilst the respondent raised threshold question as to whether the applicant had a workplace right (and subject to the court being satisfied she did) it contended the evidence would show that the termination of the applicant’s employment was because of the applicant’s performance.
Did the applicant have a workplace right?
As an employee the applicant will have a workplace right if she can show she was able to make a complaint in relation to her employment (see s.341(1)(c) of the Fair Work Act).
In this case the existence of a number of emails from the applicant was not in dispute. The respondent in submissions contended that whether the email from the applicant constituted the exercise of workplace right was far from clear.[2]
[2] see para 4 of respondent’s submissions
In submissions before the Court Counsel for the respondent contended that the email of 16 August 2011[3] did not constitute a complaint within the terms of the Fair Work Act. Counsel for the respondent submitted it was something that expresses a degree of disquiet but not a complaint in any meaningful sense. Counsel submitted if every expression of disquiet of an employee in the workplace was held to give rise to the individual rights which flow from the making of a complaint the legislation would extend beyond the protection that was intended. Counsel did not refer the Court to any authority for this proposition.
[3] exhibit LC2 of affidavit of Mr Carter sworn 3 June 2011
The applicant did not point to any process that allowed her to make a complaint or any document that contained a process, policy or procedure for workplace complaints. Mr Carter’s evidence was he was the one who investigated any complaint made. Ms Hart’s evidence was she understood any concerns the applicant had, had been addressed by Mr Carter and if there had been a “formal” complaint it would have been dealt with by Human Resources.
In the submissions upon which she relied the applicant contended the email to Mr Carter on 16 August 2011 came “comfortably within the ordinary meaning of the words complaint or inquiry found in s.341(1)(c). The applicant’s submissions buttressed this contention by reference to inter alia the Explanatory Memorandum to the Fair Work Act and a number of decisions of this Court and the Federal Court[4].
[4] see paras 14-17 of the Applicant’s submissions
In Ramos v Good Samaritan Industries (No.2) [2011] FMCA 341 Driver FM found the employee in that case who was concerned about statements made to him in the course of his employment and was able to make a complaint about those statements. In this case I am satisfied the applicant had a right to make a complaint or inquiry.
Was the applicant’s employment terminated because of the exercise of workplace right?
Subject to the argument referred to above the respondent acknowledged it had to meet the burden pursuant to s.361(1) of the Fair Work Act.
As noted earlier in Barclay (supra) it was said (albeit in the context of other similar provisions in Part 3-1 of the FW Act):
“27.The central question under s 346 is why was the aggrieved person treated as he or she was? If the aggrieved person was subjected to adverse action, was it “because” the aggrieved person did or did not have the attributes, or had or had not engaged or proposed to engage in the industrial activities, specified by s 346 in conjunction with s 347?
28.The determination of those questions involves characterisation of the reason or reasons of the person who took the adverse action. The state of mind or subjective intention of that person will be centrally relevant, but it is not decisive. What is required is a determination of what Mason J in Bowling (at 617) called the “real reason” for the conduct. The real reason for a person’s conduct is not necessarily the reason that the person asserts, even where the person genuinely believes he or she was motivated by that reason. The search is for what actuated the conduct of the person, not for what the person thinks he or she was actuated by. In that regard, the real reason may be conscious or unconscious, and where unconscious or not appreciated or understood, adverse action will not be excused simply because its perpetrator held a benevolent intent. It is not open to the decision-maker to choose to ignore the objective connection between the decision he or she is making and the attribute or activity in question.”
Furthermore and again noted in Khiani (supra) the comments made by the Full Court are particularly apposite in this matter:
“31.…A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts. In the present case, the question is whether the respondent has taken adverse action against the appellant because she had a workplace right to be on sick leave, or because she had exercised that right.”
Both parties submissions addressed this issue. The applicant’s submissions sought to impugn the reasons given by the respondent for termination by taking issue with the rationale for or basis for the reason for termination and by extension arguing that they lacked the quality of a rational or probable or significant reason for termination. Accordingly so the argument put on behalf of the applicant went the Court could not be objectively satisfied the respondent had discharged the onus of proof.[5]
[5] see para 27-54 of Applicant’s submissions
The respondent however maintained the “requisite linkage” was not present on the facts. The respondent contended that the evidence demonstrated serious concerns about the applicant’s performance and that the Court was not required to find whether those concerns were made out only whether the respondent’s concerns in that regard represented the real reason for termination and to do so to the conventional standard.[6]
[6] see para 5-9 of Respondent’s submissions
In the context of this matter I bear in mind that the Full Court in Barclay (supra) said at paragraph [32] that:
“32.The onus cast by s 361 on the person taking the adverse action means that, to succeed, that person has to establish that he or she was not actuated by the attributes or industrial activity which s 346 seeks to protect. As Mason J said in Bowling at 617, that objective will not be achieved unless the evidence establishes that the real reason for the adverse action lies outside the ambit of the provision – in this case s 346. The real reason or reasons for the taking of the adverse action must be shown to be “dissociated from the circumstances” that the aggrieved person has or had the s 346 attribute or has or had engaged in or proposes to engage in the s 346 industrial activity.”
It is in this context that Mr Carter’s evidence about the performance problems the applicant was having before the first of the emails from the applicant referred to above were sent is important. Exhibit LC1 to Mr Carter’s affidavit set examples that had been brought to his attention in early August 2010.
Mr Carter’s evidence which was not contradicted was that he himself spent time with the applicant explaining amongst other things the stock ordering processes and other things required of the applicant. Whilst the applicant denied she had received adequate training she did not deny Mr Carter had raised these sorts of issues with her.
It appears uncontroversial that on Friday 13 August 2010 the applicant telephoned Mr Carter but as he was unavailable she left a message. It is also uncontroversial that Mr Carter returned the applicant’s phone call and his evidence was having spoken to her he drove to Broadmeadows campus that afternoon.
Mr Carter’s evidence was, as he arrived, the applicant was leaving and he then spoke to Mr (Bob) Barsoum the Pharmacist in charge. The applicant did not dispute this.
Importantly for present purposes the “complaint” upon which it appeared the applicant relied was at exhibit LC-2 to Mr Carter’s affidavit. Exhibit LC-2 which is an email dated Monday, 16 August 2010, sent at 12.09am by the applicant was as follows:
“Dear Liam,
I would like to bring to your attention that I’ve had a few issues in the Pharmacy, one of which is regarding the phone call I made to you last Friday-13th August 2010.
I find it difficult to tolerate Bob’s behaviour at times. On Friday, he was passing me when he caught sight of two syringes and a bottle inside the disposal bin. Immediately, he got furious and started questioning me about why it was in there. Naturally I had no clue about the bottle because I hadn’t placed it there but I had put the syringes there because they were in their packets. Then he starts screaming and shot me a scary look and he went on and on about it and he reacted as if I had just committed a crime.
I know that he is in-charge of the Pharmacy but he could have expressed his concerns in a professional way rather than screaming and threatening me of risk man, etc. Then whin I was discarding the puffer I didn’t find the bin so I asked him where the bin for the inhalers were. Then he told me to call Les. I asked him why I should call Les, I mean, he doesn’t work here and Bob is in charge, he should know. Since I came to Northern for the training he was very upset and angry I don’t understand why?
Every time if I have a doubt if I ask him anything, he says I thought you learned all that from Northern, that is why you to Northern, call Les etc. Next was the theatre issue. Instead of handling all these situations he escalated the problem and creates a big scene.
I really didn’t want to bother you with all of these issues but it’s getting out of hand. I feel very humiliated and nervous time to time. If he can address the problems in a professional and a friendly way no one will get upset and the work place can be more productive and enjoyable than getting frustrated and humiliated. If it continues it can be health issue.
Please explain to Bob how I feel about his attitude towards me so that I will be able to work in peace.
…”
Mr Carter’s evidence, which I accept was having spoken to Bob (“the Pharmacist in Charge”) on Friday, 13 August 2010 and on Monday,
16 August 2010 he drove straight to Broadmeadows without checking his work emails and had not seen the email at exhibit LC-2 before speaking with the applicant that morning.
In her evidence before the Court the applicant did not dispute that Mr Carter had not got that email until after he had spoken to the pharmacist in charge and herself on Friday, 13 August 2010 and again on Monday, 16 August 2010. The applicant also did not dispute Mr Carter’s evidence (which I accept) that all those involved agreed to “draw a line under the matter and move forward”.
Despite what was in her affidavit the applicant’s evidence before the Court was that Mr Carter did not refer to that email after that and that the applicant did not have similar problem with Bob again.
Mr Carter’s evidence which I accept was in the weeks that followed and on the basis of the applicant’s performance and discussions with others his assessment was the applicant not performing satisfactorily. Mr Carter’s evidence was having discussed the applicant’s poor work performance with Ms Hart on Friday, 3 September 2011 they decided in principle that the applicant’s employment would be terminated.
Exhibit LC-3 was an email dated 5 September 2010 sent at 10.02pm by the applicant and the “inquiry” referred to in her submissions.
The applicant’s evidence was she accepted it was not seen by Mr Carter until after the termination on Monday, 6 September 2010. It was as follows:
“…
Expiry check
When I did the expiry check on the imprest stock in Rehab and Gem wards, I noticed a few things that I wanted to bring to your attention as I am not sure what has to be done. I have told Bob about it but thought I should seek you advice as well.
I have seen in-patients who are discharged from the wards, their medications are on the imprest stock in Adult Mental Health, Palliative and Gem which they use if for other patients. I have mentioned to the nurses in the wards to put them in to the box with a label saying “pharmacy returns” and not to be used on other patients.
I also saw a few injections in the Gem ward which are Zyprexa and Serence, which are not on their imprest but was kept on the imprest cupboard.
Vita D Capsules and Paracetamol Tabs are disappearing very fast in Gem ward. Isn’t that a concern? I have mentioned this to Bob a few times, but his view is we have charged the ward so it is okay. Gem and Rehab had 5-6 boxes of Alendronate Once Weekly tablets on their imprest cupboard, all of which had the same expiry date. This shows that they are not using this tab very often. So should we take it off the list or decrease the quantity?
I took nearly 2 and half hours to go through Gem ward’s imprest cupboard because if they have 10 boxes of one item, all of them are opened and not marked as opened and if the bar code is on one end the medication is on the other end, it makes it difficult for everyone to find the drugs. If you can ask Bob to send an e-mail to the nursing unit managers to remind their staff to keep their cupboard in order, it can save everyone’s time.”
Exhibit LC-4 was an email sent by the applicant dated 6 September 2011. The applicant’s evidence was this was not sent until after the termination. It provided as follows:
“Dear Liam,
Thanks for all the support you have given me. Fortunately or unfortunately Bob and me couldn’t get on very well. If this has given you any tension my apologies. It was not deliberate. I didn’t try to give any troubles to anyone, but I defend myself when somebody hassle me that is my nature. That’s all I did here.
I send the email from home because I don’t get any time to check my emails or send emails from work most of the time. If you get on to my email you can see my unread mails from last week. About the disposal no one had mentioned anything to me. You can ask Les. The week when Les came to Broadmeadows that is the first time I started sorting the ward returns. Bob never told me anything. That is the truth.
…”
In her evidence before the Court the applicant did not dispute that Mr Carter had also not seen that email until after the termination meeting on Monday, 6 September 2010. The applicant’s evidence was Mr Carter did not say anything about this latter email.
The applicant’s evidence before the Court made plain she acknowledged that at the time of her termination she was still in the probationary period provided for in her letter of offer. The applicant did not dispute Mr Carter had spoken to her about the need to follow policies and procedures.
The applicant’s evidence before the Court made plain she believed she should have received a warning before being terminated and/or that there was no valid probationary period in place. However, those issues were not the subject of the claims made in the application.
In considering arguments made in submissions for the applicant I note as the Full Court noted in Khiani[7] that the fact that there were a temporal correction between the adverse action and the complaint by the applicant doesn’t require the conclusion that there was a causal connection.
[7] see para 36 in Khiani (supra)
The evidence in this case is during the applicant’s short period of employment there had been a long history of concerns regarding her performance. The evidence of Mr Carter both in his affidavit and most importantly in his evidence before the Court was the decision to terminate the applicant’s employment was the culmination of a long process of attempting to assist the applicant to improve her performance. Mr Carter’s evidence was that the applicant (so far as the respondent was concerned) had not and would not achieve a satisfactory level of performance.
The applicant’s evidence was Mr Carter raised theatre problems with her during the termination interview but that evidence made plain she believed those performance issues should have resulted in a written warning before being terminated. The applicant’s evidence was that Mr Carter raised problems with theatre issues. Whilst the issue was not pursued before the Court it is more likely than not this was a reference to the issue raised in the emails attached to Mr Carter’s affidavit.
Mr Carter’s evidence which I accept was that the applicant was told her performance was unsatisfactory and having spoken to the applicant her employment was terminated for the reasons given.
Finally Mr Carter’s evidence which the applicant did not dispute was that he did not receive either of the two latter emails mentioned above until after termination. Whilst the applicant’s evidence was Mr Carter referred to her sending emails from home during the meeting the whole of Mr Carter’s evidence satisfies the Court there was no objective connection between this and the reason for termination.
Mr Carter gave evidence he had made the decision to terminate the applicant as she had not demonstrated she was able to obtain and sustain a satisfactory level of performance. Ms Hart’s evidence was she was satisfied that was the case.
The relevant provisions of the Fair Work Act upon which the applicant relied do not prevent the termination of an employee who has made a complaint. As the Full Court in Khiani (supra) notes[8] the crucial issue in an application under the provisions of Part 3.1 of the Fair Work Act is the casual connection between adverse action and one or more of the factors mentioned in Part 3.1 of the Fair Work Act.
[8] see para 31 in Khiani (supra)
In submissions the applicant contended that either her complaint in the email at LC-2 to Mr Carter’s affidavit or her inquiry about expiry checks in the email at LC-3 was one of the reasons for the termination of her employment. The applicant’s submissions appeared to proceed on the basis that because she did not accept the reasons for termination they could not been seen as a rational or probable or significant reason for termination.
In considering that submission I note that in Galvin v Renito Pty Ltd [1999] FCA 1005 at [33] to [36] Ryan JR said of the issues involved in analogous provisions (albeit dealing with unlawful termination under the Workplace Relations Act 1996 (Cth)) in earlier legislation that:
“33. Performance as a reason for termination
Both parties spent a great deal of time at trial in assessing documentation including activity reports, sale incentive programs, group sales figures and visitor’s reports.
Given my assessment of evidence and my findings on evidence the document are of far less significance than attached to them by the parties. Nevertheless, the documents were of some importance in terms of assessing whether performance was a reason for termination.
34.Performance as a reason for termination is in itself only important in that a termination allegedly based on performance, be that a legitimate or unjustified basis, has that reason as a reason for termination. If that is a valid or invalid reason for termination, it is at least a reason.
In some circumstances, a termination which includes a reason of performance may assist an employer establish a defence that, whatever the reason or reasons for termination, the reasons did not include a proscribed reason. At the end of the day that is as far as such evidence can extend.
35.If the employer has terminated the employment, and I have found that to be so, and if an application is made under s170CK and the allegation of termination for a proscribed reason is maintain, the employer must prove that a proscribed reason was not a reason of termination and no amount of evidence, weak or strong, of termination on grounds of performance, will of itself avoid the onus or the test of proving that termination was not for a proscribed reason. Strong evidence of a performance-based termination may assist the employer but the employer must meet the test. Weak evidence of a performance-based termination might assist the applicant in that it might make it less likely that the employer will discharge the onus. Either way and separate from evidence of performance, the respondent still must prove the termination did not include a proscribed reason.
36.In this case there is substantial evidence that a reason for termination, firmly entertained and expressed by the respondent as the reason for termination of the employment, was inadequate performance following warning, counselling and assistance. It is not part of this Court’s function to rule on whether the employment was validly terminated on the grounds of performance. It is not part of the Court function to consider whether the termination was in any way harsh, unjust or unreasonable.”
As the extract referred to above makes clear it is not part of the Court’s function in the context of this application to rule on whether the applicant’s employment contract was invalid or the termination itself was harsh, unjust or unreasonable.
So much is clear from what the Full Court in Khiani (supra) said at paragraph [39] where it was said:
“…a general protections application however requires that there be adverse action taken because of a specific characteristic of the person against whom the action has been taken…Proving invalidity of the acts that amounted to the adverse action does not itself establish the existence of the causal link.” (emphasis added)
Unfortunately much of the applicant’s evidence both in her evidence before the Court and her affidavit appeared to be proceeding on the basis that whether her termination was unfair or the probationary period invalid were issues before the Court.
It is necessary to deal with one other matter. The evidence of Ms Hart was that approval of the Chief Executive Officer (“CEO”) was sought before the decision to terminate was taken. There was no evidence called from the CEO. The applicant asked the Court why there was no evidence from the CEO.
I note in Barclay (supra) the Full Court referred to the decision in General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235 (“Bowling”). In considering whether the onus of proof that applied in those proceedings had been discharged Mason J in Bowling looked at the evidence and who were the real and effective decision makers and at paragraphs [241] and [242] dealt with the situation where there had been the unexplained failure to call evidence from the effective decision makers.
Gibbs J agreed with Mason J’s reasons for judgment in Bowling.
He added a number of observations, one of which is pertinent in this case at [239]:
“If in the present case evidence had been given by [those] responsible that the employee was dismissed because he was guilty of misconduct or because his work was unsatisfactory, and that in dismissing him they were not influenced by the fact that he was a shop steward or indeed that he was dismissed in spite of that fact, and that evidence had been accepted, the onus would have been discharged.”
In this case given the comprehensive nature of the evidence regarding the reasons for decision for the applicant’s termination, where on the evidence the Court is satisfied Mr Carter and Ms Hart were the real and effective decision makers and Ms Hart’s evidence explained the CEO’s absence I am not satisfied an adverse inference is open.[9]
[9] see Jones v Dunkel
Mr Carter’s evidence could not have been more definitive. It was to the effect that any complaint or inquiry made by the applicant played no part in (the decision to or) the termination of the applicant’s employment. The evidence given by Mr Carter was unequivocal on this issue and I accept it as to the real and operative reason. I am satisfied the decision to terminate was ‘dissociated’[10] from any complaint or inquiry made by the applicant.
[10] see Barclay (supra) at para 32 referred to at para 61 above
In this case having regard to the claims made in the application on the evidence before the Court I am satisfied the respondent has discharged the onus of proof under s.361 of the Fair Work Act.
Conclusion
It is the view of the Court that the respondent did not terminate the applicant’s employment for the reason, or for reasons which included that the applicant made a complaint or inquiry.
In conclusion, the Court has come to the view on the evidence, that the applicant was terminated for reasons unrelated to her complaint or inquiry. It follows her application should be dismissed.
I certify that the preceding ninety four (94) paragraphs are a true copy of the reasons for judgment of O’Sullivan FM
Date: 28 November 2011
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