Han v St Basil's Homes
[2023] FCA 1010
•25 August 2023
FEDERAL COURT OF AUSTRALIA
Han v St Basil’s Homes [2023] FCA 1010
File number: NSD 1226 of 2020 Judgment of: RARES J Date of judgment: 25 August 2023 Catchwords: INDUSTRIAL LAW – whether employer took adverse action in issuing first and final warning and or terminating employee because employee exercised workplace right to make a complaint or inquiry in relation to employment in contravention of ss 340(1)(a)(ii) and 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) or her race in contravention of s 351(1) – where multiple decision-makers took adverse action to terminate employee’s employment – whether any decision-maker had any proscribed substantial and operative reason for taking adverse action – whether s 793(2) or (3) attributed state of mind of one or more decision-makers to employer in relation to negating presumption in ss 360 and 361(1) of Act – where evidence by employer’s decision-makers not negate presumption that adverse action of termination of employee taken because employee exercised workplace right to make complaint or inquiry or because of employee’s race – Held: adverse action taken for proscribed reason in terminating applicant but not in issuing warning Legislation: Fair Work Act 2009 (Cth) ss 340(1)(a), 341(1)(c), 342(1), 351(1), 360, 361(1), 793(2), (3) Cases cited: Alam v National Australia Bank Ltd (2021) 288 FCR 301
Australian Federation of Air Pilots v Regional Express Holdings Ltd (2021) 290 FCR 239
Australian Red Cross Society v Queensland Nurses’ Union of Employees (2019) 273 FCR 332
Berry v CCL Secure Pty Ltd [2017] FCA 1546
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243
Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309
Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251
Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 551
Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186
Qantas Airways Ltd v Transport Workers’ Union of Australia (2022) 292 FCR 34
Rumble v The Partnership (t/as HWL Ebsworth Lawyers) (2020) 275 FCR 423
Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441
Whelan v Cigarette & Gift Warehouse Pty Ltd (2017) 275 IR 285
Wong v National Australia Bank Ltd (2022) 318 IR 148
Division: Fair Work Division Registry: New South Wales National Practice Area: Employment and Industrial Relations Number of paragraphs: 242 Date of hearing: 6–8 December 2021, 28–29 April 2022, 28 July 2022 Counsel for the Applicant: The applicant was self-represented Counsel for the Respondent: Mr H Pararajasingham Solicitor for the Respondent: McPhee Kelshaw Solicitors & Conveyancers
ORDERS
NSD 1226 of 2020 BETWEEN: WEI HAN
Applicant
AND: ST BASIL'S HOMES
Respondent
ORDER MADE BY:
RARES J
DATE OF ORDER:
25 AUGUST 2023
THE COURT ORDERS THAT:
1.It be declared that, on 23 January 2020, the respondent took adverse action against the applicant in contravention of s 340(1)(a) of the Fair Work Act 2009 (Cth), because she had exercised her workplace right as an employee to make a complaint or inquiry in relation to her employment.
2.It be declared that, on 23 January 2020, the respondent took adverse action against the applicant in contravention of s 351(1) of the Act, because of her race.
3.On or before 1 September 2023, the parties confer and file draft agreed orders or, in the event of disagreement, her and its draft orders providing for:
(a)the applicant to file and serve points of claim and evidence in support of:
(i)any compensation for any loss she claims under s 545(2)(b) to have suffered because of the contraventions declared in order 1 and 2 above;
(ii)any claim for reinstatement; and
(iii)any pecuniary penalty she seeks in respect of the contraventions;
(b)the respondent to file and serve any points of defence and evidence in response;
(c)written submissions:
(i)by the applicant limited to 5 pages;
(ii)by the respondent limited to 5 pages; and
(iii)by the applicant in reply limited to 2 pages; and
(d)an estimate of the length of the balance of the hearing in respect of this proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
RARES J:
INTRODUCTION
At the time of the summary termination of her employment on 23 January 2020, Wei Han, also known by her Anglicised name, Casey, had worked for over nine years in her profession as a registered nurse on a permanent part time basis for St Basil’s Homes at their Lakemba aged care facility in Sydney.
Ms Han, who represented herself in the proceeding, alleged that St Basil’s contravened the Fair Work Act 2009 (Cth) by taking adverse action against her twice, first, when St Basil’s wrote a letter to Ms Han on 10 September 2019 giving her a first and final warning (the warning) and, secondly, by terminating her employment on 23 January 2020 (the termination). She alleged that St Basil’s took each alleged adverse action because of one or both of the reasons that:
(a)she had exercised her workplace right to make a complaint or inquiry in relation to her employment in contravention of s 340(1)(a); and
(b)her (Chinese) race, in contravention of s 351(1).
Ms Han claimed orders for her reinstatement, compensation for loss of income, pain and suffering and for the imposition of pecuniary penalties under ss 545(1), (2) and 546 of the Act.
Many of the registered nurses, assistants in nursing (or AINs), recreational activity officers (or RAOs), other staff and a general manager at the Lakemba facility, Meriem Mota, with whom Ms Han worked at St Basil’s Lakemba, were Filipinos, some of whom, like her, also did not have English as their first language.
In her statement of claim, Ms Han alleged that, from June 2019, she had raised a number of complaints about the close relationship between her Filipino co-workers and their discriminatory and bullying conduct toward her because she was Chinese. Her complaints raised issues about her being overworked, unsupported, bullied and discriminated against in the workplace and that other employees had not provided appropriate care to residents in circumstances that Ms Han described. She alleged that, instead of investigating those complaints, St Basil’s took adverse action by, first, disciplining her (by giving her the warning), secondly, after she had made her complaints in her emails of 1 and 24 December 2019, terminating her employment and, thirdly, making a complaint about her to the Australian Health Practitioner Regulation Agency (AHPRA) and the Nursing and Midwifery Council of New South Wales.
On 6 December 2020, the first day of the hearing, I ordered that all issues relating to St Basil’s liability be heard and determined before issues relating to penalty, compensation and or damages.
The trial posed difficulties on both sides. Ms Han did not comply with an order that I had made on 10 September 2021 to serve outlines of evidence of any witness on whom she proposed to rely by 23 September 2021. Immediately before the trial began, Ms Han provided St Basil’s with an extensive bundle of paginated documents on which she sought to rely. The bundle was interleaved with statements by her about matters related to one or a group of nearby documents. She was assisted at the bar table by her partner, Matthew Cosgrove, during the trial.
At the outset of the trial, counsel for St Basil’s sought to ensure that the issues were clarified. Ms Han acknowledged that her claim for the trial was confined to the two instances of adverse action to which I have referred, namely the issue of the warning letter and her termination. Counsel for St Basil’s recognised the difficulties for his client, Ms Han and myself that Ms Han’s unfamiliarity with the rules of evidence and court procedure created. He sought properly to assist the Court and to protect St Basil’s interests while, very fairly, allowing Ms Han a considerable degree of latitude in presenting her case.
THE LEGISLATIVE SCHEME
Relevantly, Ch 3 of the Act provided in Div 3, headed ‘Workplace Rights’:
340 Protection
(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; or
…
Note: This subsection is a civil remedy provision (see Part 4‑1).
341 Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:
…
(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.
(emphasis added)
The table in s 342(1) set out “circumstances in which a person takes adverse action against another person” (original emphasis). Item 1 in that table provided that adverse action was taken by an employer against an employee if the employer dismissed him or her, injured him or her in his or her employment, altered his or her position to his or her prejudice or discriminated between him or her and other employees.
Division 5 in Ch 3, headed ‘Other protections’, commenced with s 351 which relevantly provided:
351 Discrimination
(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 orientation, 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).
(emphasis added)
Division 7 contained ancillary rules for the application of the provisions of Ch 3 of the Act, including:
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
361 Reason for action to be presumed unless proved otherwise
(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 that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(emphasis added)
In addition, s 793(2) provided that if, for the purposes of the Act, it is necessary to establish the state of mind of a body corporate, including a person’s knowledge, intention, opinion, belief or purpose and reasons for any such intention, opinion, belief or purpose (see s 793(3)) it is enough to show that, first, the conduct was engaged in by an employee of the body corporate within the scope of his or her actual or apparent authority and, secondly, that employee had the relevant state of mind.
LEGAL PRINCIPLES
In order to engage the presumption in s 361(1), an applicant must plead in the originating application, statement of claim or some other document the particular reason or intention for which he or she alleges that the respondent took the adverse action complained of in the proceeding. That pleading must make clear what the case is about and include the identification of that particular proscribed reason or intention: Australian Federation of Air Pilots v Regional Express Holdings Ltd (2021) 290 FCR 239 at 282 [140] per Bromberg, Kerr and Wheelahan JJ.
In order to be a workplace right within the meaning of s 341(1)(c), an employee must have the ability, founded on a source of entitlement (whether instrumental or otherwise), to make a complaint or inquiry in relation to his or her employment: Alam v National Australia Bank Ltd (2021) 288 FCR 301 at 331–332 [97] per White, O’Callaghan and Colvin JJ applying (at 288 FCR 325 [74]–[76]) Whelan v Cigarette & Gift Warehouse Pty Ltd (2017) 275 IR 285 at 298 [33] per Collier J as approved in Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46 at 56 [28] per Greenwood, Logan and Derrington JJ.
The central issue under Pt 3-1 of the Fair Work Act in the determination of a claim that a person has taken adverse action against another person in contravention of ss 340(1) or 351(1) is a factual one that must be evaluated in the matrix that the Parliament created through ss 360 and 361. The factual question requires the Court to ascertain, having regard to the rebuttable presumptions created by ss 360 and 361, what was the decision-maker’s substantial and operative reason for taking or engaging in the action alleged to be adverse: see Rumble v The Partnership (t/as HWL Ebsworth Lawyers) (2020) 275 FCR 423 at 430–432 [30]–[39] per Rares and Katzmann JJ and their analysis of Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243; see also Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441 at 447–448 [32] per Tracey and Buchanan JJ. In other words, the factual enquiry must answer the question “why was the adverse action taken?”. If the Court’s answer is a finding that the decision-maker’s reasons for taking that adverse action included a reason proscribed by ss 340(1)(a) or 351(1), then the applicant will have established that the other person, in taking the adverse action, contravened the relevant provision.
The effect of ss 360 and 361 is that the person alleged to have taken adverse action under Pt 3-1 of the Act has the onus of proving that the pleaded proscribed reason or intention for taking the action did not form the, or a, substantial and operative reason or intention of each of the decision-maker(s) or other individual(s) involved in the decision-maker(s) coming to have the relevant impugned state of mind in doing so: Qantas Airways Ltd v Transport Workers’ Union of Australia (2022) 292 FCR 34 at 86–87 [174], [177] per Bromberg, Rangiah and Bromwich JJ. Their Honours also held, in the context of considering the position where there is more than one decision-maker or individual involved whose reasons for taking the adverse action must be evaluated (at 101 [230]):
It must be kept steadily in mind that what is required is a causal and thus factual inquiry into all of the substantial and operative reasons for a decision being made. It is necessarily fact and circumstance specific, potentially with a multitude of such reasons being in play. In the field of causation, the question of fact as to whether something is a cause (or may have been a cause so as to trigger the presumption in s 361(1)), is required to be ascertained “by reference to common sense and experience and one into which considerations of policy and value judgments necessarily enter”: see Minister for the Environment v Sharma (2022) 291 FCR 311 per Allsop CJ at [305], citing March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 per Mason CJ (with whom Toohey J and Gaudron J agreed).
(emphasis added)
Where more than one person is involved in the taking of action, including the making of a decision, it is necessary to consider and evaluate the role that each played in that action or decision and whether that individual had the, or a, substantial and operative reason for the taking of the adverse action that, by force of s 793(2), would be the, or a, proscribed reason because of which that person or another person involved took that action.
The reason or intention for which a person takes adverse action for the purposes of ss 360 and 361 of the Act need not involve the person having an accurate appreciation of the legal nature of the action: Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 551 at 585–568 [61] per Kiefel CJ, Keane, Nettle and Edelman JJ. They explained (relying on what Gleeson CJ had said in Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309 at 330–331 [26]) that it is sufficient to establish the person’s intention or purpose by showing that he or she intended to take the particular action (here, giving Ms Han the warning or terminating her employment) with actual knowledge of the circumstance that, and engaged in that conduct because, relevantly, the employee had exercised the workplace right in issue or the conduct discriminated against him or her because of his or her race (or one or more other reasons or characterisations proscribed in s 351). But it is not relevant to establish liability that a person acts under a mistake of law as to whether an adverse action is lawful.
A person involved in a process that leads to the adverse action may be a decision-maker, or person whose state of mind suffices, pursuant to s 793(2), for the purpose of determining whether adverse action was taken for a proscribed reason, even though the ultimate act, such as termination, is taken or conveyed by another decision-maker: see Australian Red Cross Society v Queensland Nurses’ Union of Employees (2019) 273 FCR 332 at 347–348 [90]–[91] per Greenwood, Besanko and Rangiah JJ. That is because, as Lee, Madgwick and Gyles JJ held in Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251 at 260 [37], where a decision-maker takes adverse action in reliance on another individual’s input, such as his or her report or assessment of a matter that the ultimate decision‑maker took into account, and the individual was influenced in making the report or assessment for a reason, or with an intention, proscribed in Pt 3-1 of the Act, such as one in ss 340(1) or 351(1), whether disclosed or undisclosed, the participation in the decision-making process of that individual, while he or she acts with the impugned state of mind, will amount to a reason or intention for the taking of the adverse action within the meaning of s 360, even if the decision-maker is not aware that the individual acted because of that proscribed reason.
Thus, in Kodak 129 IR 251, an employee, Mr Lay, gave a ranking of employees to assist his superiors in determining whether to make particular ranked employees redundant. Mr Lay’s rankings played an indispensable part in the assessment process that his superiors undertook in arriving at the adverse action against Mr Elliot. Lee, Madgwick and Gyles JJ explained that, if Mr Lay was influenced in giving a low assessment for a proscribed reason, first, it was likely that he would have given a different assessment were he not so influenced, secondly, this inevitably would have affected the ranking process for employees based on the assessment, whatever the view of appropriate ranking by others, including one of the company’s directors, involved in the decision to take adverse action, and that, therefore, it “would have been a different assessment process”. Their Honours explained (at 260 [37]):
Furthermore, whatever debate there might be about the extent of [the director’s] power or involvement in the decision, his evidence was that he took the Lay/Shannon assessment and worked from there. It follows that if the Lay/Shannon assessment is affected (or infected) by either Lay or Shannon having held an undisclosed prohibited reason, then he [scil: the director] would have, in effect, inadvertently adopted it so that its force continued regardless of the lack of any express prohibited reason in the mind of [the director].
(emphasis added)
In Wong v National Australia Bank Ltd (2022) 318 IR 148 at 159 [37], 167–168 [78]–[83], Katzmann, Charlesworth and O‘Sullivan JJ applied Kodak 129 IR 251. In that case, an individual provided information to the decision-maker on which the latter proceeded without investigating its reasonableness, truth or accuracy (at 167 [79]). Their Honours said that, first, it is necessary to enquire into whether an individual contributed to the decision-making process culminating in the adverse action to a degree sufficient to warrant an evaluation as to whether he or she acted for a proscribed reason or with a proscribed intent (at 167 [78]). Secondly, where the decision-maker acts on the basis of such information, the state of mind of the individual who supplied it is relevant. They said (at 167 [80]):
an inquiry into the reasons of a corporate entity may require an examination of the states of mind of human actors other than the single individual having the authority to bind the corporation in the relevant act.
Depending on the nature and degree of the involvement of the other individual (or individuals) in the decision-maker’s process in arriving at the decision, it may be necessary to assess whether each individual relevantly had a proscribed state of mind, within the meaning of s 793(2), that affected the reason or intention why the decision-maker took the adverse action (at 167–168 [81]–[82]). Their Honours said (at 168 [83]):
it was necessary to inquire into Mr Arnott’s reasons for making the contribution that he did, whether it be described as “significant”, “plainly important”, “major”, “substantial” or “essential”. It is enough to identify that Ms MacLeod proceeded from factual assumptions that were detrimental to Ms Wong and that were principally (although not solely) based on an assumption that Mr Arnott’s assertions were true. Mr Arnott’s motivations were relevant and as such his actions and accompanying state of mind may be attributed to NAB in accordance with s 793 of the [Fair Work Act].
(emphasis added)
THE WITNESSES
Ms Han was the only witness in her case. I formed the view that she was honest and generally reliable. However, she was often repetitive, sometimes unresponsive, an advocate for her claim and dogmatic in giving her account. Nonetheless, I found her to be reasonably accurate in her testimony when she was focused.
Ms Han is Chinese. She spoke English reasonably fluently and was able to make herself clearly understood. However, as with many persons who speak a second or other language than their native tongue, Ms Han’s command of English lacked the command of idiom, vocabulary and syntax of a person for whom it is the natural means of expression. In saying this, I am not being critical of Ms Han, whose English skills were considerable and equipped her to fulfil the significant responsibilities of her profession in an English speaking environment. However, as I explain below, because of the way in which she spoke and understood English, she delivered what she believed was a humorous or harmless joke in a way that could be understood as inappropriate and offensive.
In Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 at 190 [21]–[22], Ipp JA, with whom Mason P and Tobias JA agreed, cautioned about the need to take “great care” in assessing, and making findings on, a witness’ demeanour when he or she is from a different cultural and ethnic background from one familiar to the judge (or jury). As I noted in Berry v CCL Secure Pty Ltd [2017] FCA 1546 at [196]:
Although Ipp JA and his quotation from Sir Thomas Bingham’s article: “The Judge as Juror: The Judicial Determination of Factual Issues” (1985) Current Legal Problems 1 at 10-11 concerned specifically the difficulty in making demeanour based findings, what both judges wrote has equal application to taking account of cultural differences in the behaviours of individuals. Sir Thomas Bingham wrote:
[H]owever little insight a judge may gain from the demeanour of a witness of his own nationality when giving evidence, he must gain even less when … the witness belongs to some other nationality and is giving evidence either in English as his second or third language, or through an interpreter. Such matters as inflexion become wholly irrelevant; delivery and hesitancy scarcely less so. … If a Turk shows signs of anger when accused of lying, is that to be interpreted as the bluster of a man caught out in a deceit or the reaction of an honest man to an insult? If a Greek, similarly challenged, becomes rhetorical and voluble and offers to swear to the truth of what he has said on the lives of his children, what (if any) significance should be attached to that? If a Japanese witness, accused of forging a document, becomes sullen, resentful and hostile, does this suggest that he has done so or that he has not? I can only ask these questions. I cannot answer them. And if the answer be given that it all depends on the impression made by the particular witness in the particular case that is in my view no answer. The enigma usually remains. To rely on demeanour is in most cases to attach importance to deviations from a norm when there is in truth no norm.
St Basil’s called four witnesses who were in senior positions in it at the time of both occasions on which it took adverse action against Ms Han and who were involved in one or both decision‑making processes the subject of the two claims. Those were:
·Father Nicholas Stavropoulos, who then was the chief executive officer (CEO) of St Basils and left its employ in about August 2020;
·Stephen Rooke, who was, until 1 July 2019, the chief operating officer responsible for the operation of St Basil’s residential aged care facilities (of which the Lakemba premises was one), its home care, human resources and information technology departments and some financial strategy and risk management functions. After 1 July 2019, Mr Rooke became the chief risk officer when another executive took up his former responsibilities for the residential aged care facilities. He left St Basil’s employ in February 2021;
·Sonya Darwich, who was the director of care at St Basil’s for over three years until May 2021. She was responsible for clinical care at St Basil’s six sites, as well as dealing with complaints and interactions with the Commonwealth Aged Care Quality and Safety Commission. She was a registered nurse, held a bachelor of nursing degree and had a postgraduate qualification in education in business. She had worked in the aged care industry for over 20 years; and
·Ms Mota, who began working for St Basil’s as a care manager in September 2017. During 2019, Ms Mota was a general manager for the Lakemba premises. She ceased employment with St Basil’s in January 2022. She was a registered nurse and had worked in management roles for over 10 years. While a general manager at Lakemba, she had responsibility for a staff of about 160 to 170.
MS HAN’S CONTRACT OF EMPLOYMENT
On 10 August 2010, Ms Han signed an offer of employment with St Basil’s to work as a registered nurse. She agreed to become familiar, and carry out her responsibilities in accordance, with all relevant aged care legislation. St Basil’s had the right to terminate her employment without prior notice in cases of serious misconduct by her, including if she was, among other matters, first, “grossly negligent or incompetent in the performance of the duties of the position” and, secondly, “guilty of conduct that causes serious risk to the health and safety of a person”. She was also required, at all times, to abide by the policies and procedures in St Basil’s employment manual as published and amended from time to time. St Basil’s policies and procedures included its code of conduct, counselling and discipline policy, and a medication management – procedural framework policy. All of those policies were well drafted.
Importantly, as I will explain below, there was no St Basil’s policy or procedure relating to the administration of oxygen to a resident or specifying the employees who could administer it or direct its administration.
The code of conduct identified St Basil’s cultural expectations of behaviour in the workplace and set its core values as respect, dedication, working together and accountability. The code of conduct created three primary obligations, the second of which was that an employee deal with other employees equally and respectfully. Item 7.5 in the code of conduct stated:
7.5. Bullying, harassment and vilification
St Basil’s Homes does not tolerate any bullying, harassment or vilification. Any such conduct will be investigated, and appropriate corrective action will be taken. For further explanation about bullying, harassment and vilification please refer to St Basil’s Workplace Bullying Policy.
St Basil’s Homes expects that all individuals are to be treated with dignity, courtesy and respect. Therefore, St Basil’s Homes will not condone any behaviour or actions that may offend, insult, humiliate, or result in the risk of violence to another person or group of people.
The code of conduct concluded with a list of examples of breaches of professional conduct, including:
•Putting customers at risk through:
•Medication errors due to careless act.
…
•Any form of abuse towards a customer, employee or visitor, including physical, verbal and financial abuse
The counselling and discipline policy included section 4 which was headed ‘What is Misconduct?’. This specified that misconduct occurred when staff either behaved deliberately in a manner inconsistent with the continuation of their contract of employment or caused serious and imminent risk to the health and safety of another person or the reputation or profits of St Basil’s. The policy gave examples of misconduct and serious misconduct. One example of misconduct was: “Inappropriate behaviour at work such as telling inappropriate jokes, bullying, sexual harassment or discrimination”. An example of serious misconduct was: “Refusing to carry out work duties”.
The counselling and discipline policy laid out St Basil’s disciplinary procedure, which, in most cases, would involve five stages, although that might not apply in cases of serious misconduct attracting summary dismissal. The general manager, in consultation with the human resources manager, would investigate all cases of a serious nature. The five stages were investigation, disciplinary interview, disciplinary action, termination and documentation. During the investigation stage, pending its completion, St Basil’s could suspend the employee from duty on ordinary pay. Next, stage 2 provided, relevantly:
Disciplinary Interview: Once the investigation is completed, St. Basil’s management will make a determination whether or not the staff is required to attend a disciplinary interview to further discuss the allegations and concerns.
The following procedure must be adhered to when arranging and conducting a disciplinary interview:
•The staff must be given advance notice of the meeting and the allegations or concerns that will be discussed. Any relevant data and witness statements need to be attached to the notice of meeting for the staff.
•The staff will be given a reasonable opportunity to have a representative at the meeting. Please see Section 6: Role of a Support Person for more information.
•At the meeting, the allegations or concerns will be openly discussed with the staff, including any evidence upon which the allegations or concerns are based.
•The staff will be given the opportunity to respond to the allegations or concerns.
…
•Staff will be sent a copy of the meeting minutes, which they must sign and return a copy to be placed in their file.
(emphasis added)
If the disciplinary action were to be termination, then the CEO had to be consulted.
The procedural framework policy provided that a breach of it would be considered to be a breach of the medication management policy, which St Basil’s did not tender or seek to adduce in evidence. The procedural framework policy stated what it conveyed was important information and procedures on 28 topics, including items 12 and 24. Relevantly, item 12 provided:
12. Delegation of Medication Administration:
Registered nurses conduct assessments for competency of administration by non-registered staff and have a professional responsibility to take over the administration of medications in certain circumstances in accordance with the requirements of the Nurses and Midwives Board. Such assessments are made in the interests of safety for consumers based on the:
•Type of medication
•Route of administration
•Condition of the resident
•Training and competency of care staff who may administer medication
•Medication system in place
(emphasis added)
Item 24, headed ‘High Risk Medication Management’, set out in detail the legislative requirements for documenting the management and administration of schedule 8 medications, and provided, in particular:
To prevent any error or [misappropriation] of S8 [scil: schedule 8] Medications, St. Basil’s will ensure that the:
•Registered nurse and witness to administration must remove S8 medication from storage as required.
•Procedure for medication administration as outlined in Section 13: Medication Administration Procedure (DAA and non-packed Medications) of this document is followed by the registered nurse and observed by the witness.
•Removal of S8 medication for administration is recorded in S8 register by registered nurse including quantity of drug, time of day, quantity of drug held after administration and signature of registered nurse.
•Witness checks the entry and countersigns the entry if all details are correct.
•Remainder of S8 medication is returned to storage and locked away.
(emphasis added)
BACKGROUND
Prior to June 2019, Ms Han had not experienced any difficulties in her work for, or relationships with her fellow workers or management at, St Basil’s. She worked as the registered nurse assigned to the east/west wing at the Lakemba premises. Late in the first half of 2019, she perceived a change after a new senior registered nurse, or as Ms Han understood her to be, a new care manager, Djeddalyn Alcantara, was appointed. Ms Han and the registered nurse assigned to level 2 at the Lakemba premises reported to Ms Alcantara.
In fact, in about June 2019, St Basil’s increased Ms Han’s workload by about 40% from what it had been. Ms Han understood that Ms Alcantara was responsible for this. However, as Mr Rooke made clear in his evidence, St Basil’s board had required economies to be made and, in consequence, St Basil’s introduced a new model in July 2018 which increased the numbers of recreational activity officers on floors and decreased the qualified nursing staff. He said this was because, as he put it, “on the nursing staff, there was actually a big problem, because we had overspent because we had too many people on the floor … So, in 2019, we were clawing that back a little bit”. This involved allocating to Ms Han responsibility for, in addition to her then current 32 residents, five care staff and one team leader (a position below a registered nurse) in the east/west wing and an additional 10 residents, two care staff and one team leader in the dementia unit on level 1. Those two locations were about five minutes’ walk from each other. There were also about 35 residents on level 2 and about another 9 in the dementia unit on level 1 who had been allocated to the other registered nurse (the level 2 registered nurse) on duty with Ms Han. This appeared to be the result of a cost cutting measure that split the work previously done by the registered nurse in the dementia unit on level 1 between the level 2 and east/west wing registered nurses.
Ms Han perceived that Ms Alcantara caused a number of her Filipino relatives, friends and associates to be allocated to better, or less onerous, shifts or jobs while she (Ms Han) felt more and more overworked on her shifts because of her recent new workload allocation. Ms Han was now so busy that often she had no time in which to eat her lunch and felt unsupported by the new staff. Ms Han reported to Ms Mota and Ms Alcantara on several occasions that the increase in her workload from June 2019 had resulted in her not being able to take her lunch breaks and was upset at not being paid for working the corresponding extra time.
Importantly, after her termination, St Basil’s changed the east/west wing registered nurse’s duties to exclude responsibility for the level 1 residents.
Ms Han raised a number of incidents that caused her concern over the period from June 2019 which she perceived as either discriminatory or unfair treatment of her but were not the subject of the circumstances involved in the adverse action relating to either the warning or her termination. I will deal with those other incidents below only to the extent that they affect the resolution of the two issues relating to her adverse action claims.
THE WARNING ADVERSE ACTION CLAIM
The incident leading to the warning
On Sunday, 4 August 2019, during the handover, at around 3:00pm, Ms Han had a conversation with Sia Bangao, who was an aged care worker, in the presence of a new staff member, Aakash Dhungana, whom Ms Bangao was introducing to Ms Han. Ms Han said that Ms Bangao raised the topic of being called “a bitch” as follows:
she said “I don’t care they call me a bitch”. I said “Are you a bitch, Sia?.” Then I said to the male nurse, “There you go, you work with bitch. I’m going to, I’m going home.”
According to Ms Han, another registered nurse, Sharmila Pandey, caused Ms Bangao and Mr Dhungana to make a complaint to Ms Mota and Ms Alcantara (all of whom were Filipinos) accusing Ms Han of calling Ms Bangao “a bitch”. When pressed about this in cross‑examination, Ms Han adhered to her account that she had given consistently to her superiors at St Basil’s when they questioned her about the complaint and during the trial. She was asked about what occurred at a meeting with Ms Mota and another general manager, Rosy Thapa, on 5 September 2019 and said:
what I’m going to suggest is that, during this meeting, you admitted that you had called Ms Bangao a bitch. Correct? --- I admitted, I repeat - - -
And and - - -? --- ? --- I repeat what she said … I just repeat what she said. I’m not calling and saying, “You bitch”. I just said, “She said, ‘I don’t care, they call me bitch’”. I said, “Are you a bitch?” Yes. I was laughing. We … always joking. That’s exactly what I said. I didn’t call her a bitch. I just repeat what she said.
(emphasis added)
In Ms Han’s understanding, she was engaging in harmless repartee with Ms Bangao, making a joke with Mr Dhungana and did not intend to be offensive. I accept her evidence that, as she understood what she said, she was not accusing Ms Bangao of being “a bitch” and was attempting to be humorous. However, even as she re-enacted this scene on numerous occasions during the trial, both in evidence and submissions, her manner of delivery did not sound jocular or light hearted to me as a listener. This was even though Ms Han was, obviously, delivering her account in court in a way that she believed accurately reproduced what she had said and how she had said it to reinforce or justify the character of what, to her, was a benign episode of banter.
Even for fluent English speakers, jokes can misfire or fall flat, including when the delivery does not come across as entertaining. I think this is what happened here, but it had very serious consequences for Ms Han.
The incident developed within St Basil’s as follows.
At about 8:25pm on 4 August 2019, Ms Pandey emailed Ms Mota, Ms Alcantara, Ms Thapa and Danna Huang (who was also a general manager). Ms Pandey wrote:
We have a compliant [scil: complaint] about Sr Casey [viz: Ms Han] from the afternoon staff. As per the Care staff, Sia Bango [sic] and Akash Dhungana, CSE Sia was introducing to Sr casey at 1440, but Sr Casey replied to CSE Akash that “you know that you are working with bitch” and she repeat the sentence twice in front of CSE Sia. At the beginning CSE Sia though, she was joking but she never apologised to her or even say “Sorry”. CSE Sia was reporting me that she is very upset. The witness is CSE Akash.
I have told to both of the staffs that I will escalate the matter to the managers and they will investigate the issue.
(errors in original; emphasis added)
On 5 August 2019, Ms Bangao emailed Ms Huang, saying:
Sorry to bother u on sunday afternoon I had an issue with day shift Rn [registered nurse] during handover who labeled me a bitch in front of other staff. Her comments are offensive and embarrassing to be called that in front of other staff I never want to go thru that situation again I feel very upset at moment we should not be talking like this we do a job that is hard and need each other’s support hope u can help me with this situation the Rn involved was casey.
(errors in original; emphasis added)
Next, on 6 August 2019, Mr Dhungana emailed Ms Mota his corroborating version which he said was at the instigation of the registered nurse on level 2 (ie. Ms Pandey).
On 12 August 2019, Ms Mota wrote a letter to Ms Han requiring her to attend “a fact-finding meeting” with Ms Mota and Ms Darwich to discuss “An alleged serious breach of Code of Conduct” on 14 August 2019 (the first 12 August letter). The letter was bereft of any information at all about what the alleged serious breach was. The letter bore no relationship to the requirements in stage 2 of the counselling and discipline policy or the importance of giving Ms Han procedural fairness. As will appear, despite the requirements of that policy, Ms Mota gave evidence that “this is what we normally do in our process when we’re investigating and we try to determine … the severity of an incident that we’re trying to investigate”. She asserted (but I do not believe) that she would have sent that letter after “liaising with H[uman] R[esources]”.
Mr Rooke said (and I accept) that the first 12 August letter was not sent in accordance with “usual practice”. He said that “We provided some support to … Ms Mota, and advised that the correct approach to do this was to at least spell out what was to be discussed and that this letter by itself was not the most appropriate thing to have sent”. He said that such a letter would be likely to upset its recipient.
Later on 12 August 2019, soon after she received the first 12 August letter, Ms Han sent Ms Mota a text message asking for details of the incident, saying that the information in the letter was very general. At 4:42pm that day, Ms Mota emailed an amended letter (the second 12 August letter) which, in evidence, she said was “just to give her a bit more background”, that now included an opaque paragraph that read:
The allegations include use of inappropriate language, denigrating fellow employees, causing undue emotional distress to a fellow employee. These events are alleged to have occurred on 4 August.
Ms Darwich was aware that a letter was to be sent to Ms Han to attend a fact-finding meeting. She gave this evidence in answer to questions I asked her about the first 12 August letter, which was revealing about her insouciant attitude to treating a person in Ms Han’s position (who was asked to attend a fact finding meeting) fairly:
As the director of care, if I was sending out this letter I may have put a paragraph in there stating what the actual issues were so that Wei Han maybe had time to reflect or think about it prior to the meeting. But then again, the code of conduct is … a document that’s printed, that … if there was a breach, it is directly related to that document.
But the employee has no idea of … what the alleged serious breach is, and the code of conduct is a long document? --- But it is only a fact-finding meeting, it’s not a disciplinary meeting in any way. It’s only a fact-finding meeting, to come in and give Wei Han the opportunity to answer. It’s … not a disciplinary meeting, it’s only for her to come and it’s just a fact-finding. It’s not a formal disciplinary.
So am I to understand that you think it’s fair to say to an employee, “It’s alleged that you’ve committed a serious breach of the code of conduct”, and not tell the employee anything about what that alleged breach is in a letter sent to the employee and requiring her to come to a meeting? --- Your Honour, yes. … I believe that it should have had some additional information. But if I received this letter, I would know that it would directly relate to the code of conduct.
It would, but you wouldn’t know why - - -? --- No.
- - - would you? --- No.
And you would be - - -? --- But I would find out in the fact-finding meeting.
…wouldn’t you think the employee might be a bit distressed that … they’re being accused of something but not told what it was? --- Correct, but that’s why it’s only a fact-finding it’s not formal. … if we were bringing someone in to discipline them, then … the layout of the letter would be different where you would have all the issues listed, but the code of conduct is, it’s very descriptive, … and it’s there.
As you say, it covers the whole range of activity that the employee is expected to adhere to - - -? --- Correct.
(emphasis added)
This concept of a fair procedure seems to have been inspired by matters decried by Franz Kafka. Ms Darwich’s dealings with Ms Han reflected the peremptory and insouciant attitude that she displayed in that evidence.
On 14 August 2019, Ms Han attended a meeting with Ms Thapa and Mr Rooke (the 14 August meeting). She gave them a medical certificate from a traditional Chinese medicine practitioner and told them that she had taken some traditional medicine because she felt nervous, anxious and unwell. Mr Rooke said that they told her that this was not acceptable under the sick leave policy and gave her the opportunity to obtain a standard sick leave certificate from a general practitioner. Ms Han asked them to give her details about what was alleged against her because of the lack of content in both of the first and second 12 August letters. Mr Rooke told her that a staff member had reported that she had called them “a bitch” twice. She said that she was not aware of ever having had an argument with, or confronting, another staff member. Ms Thapa said that the alleged incident had occurred on 4 August 2019 at the handover time. Mr Rooke realised that Ms Han needed to be informed of the allegations and said that they would send them to her. Later on 14 August 2019, Ms Mota wrote to Ms Han and confirmed that she had been suspended for being in breach of the code of conduct.
On 21 August 2019, Ms Mota wrote to Ms Han giving her details of the allegations for the first time. The letter attached Ms Bangao’s and Mr Dhungana’s emails of 5 and 6 August 2019 which stated their version of events. The letter said that St Basil’s had found that the allegation, that Ms Han had referred to Ms Bangao as a “bitch” in front of another staff member, had been substantiated. It recorded that, at the “initial fact finding meeting”, Ms Han had “denied any knowledge of ever conducting [herself] in this manner”. It directed Ms Han to attend a meeting on 23 August 2019 “to show cause in relation to the sustained allegations against you”. It stated that St Basil’s believed that Ms Han’s conduct was a “serious breach of St Basil’s Mission and values, Policies and Procedures and Employee Code of Conduct”. The letter said that Ms Han could submit a written response before or at the show cause meeting and have a support person in attendance who should not be another St Basil’s employee.
Ms Han said that, because she was unwell, the meeting was rescheduled to 5 September 2019. She said that earlier, in June 2019, St Basil’s had refused to let her bring another employee as her support person to a meeting on an unrelated matter. She had no one to bring to support her on 5 September 2019.
On 5 September 2019, Ms Han attended the show cause meeting with Ms Mota and Ms Thapa (the 5 September meeting). Ms Han handed them a medical certificate and a written statement in which she apologised for the distress she had caused Ms Bangao and said that Mr Dhungana had told the truth. She wrote that she had a good relationship with Ms Bangao and they were friends who joked with each other. She said that she had not denied anything at the 14 August meeting but, rather, was then unaware of what or who was involved in the accusations against her. She wrote:
4.On 4/8/19, after handover (3:5pm [sic], I finished my duty) Sia starts making some complaints about some staff then she said “I don’t care if they call me a bitch”
I was joking to Sia “oh, you a bitch Sia?” she wasn’t upset and angry. Then I was laughing and said to the male staff “there you go, you working with a bitch”
I’m already late and need to go home “Have a good shift guys”
Then I left and went home
5.As the male staff stated that he thought we were close and friendly. All that happened in a very friendly way.
NOW I understand people are sensitive to certain word or certain things. I also understand that Sia got hurt from the word “bitch” even though it was purely a joke. I believe it is misunderstanding. However the damage already done. I wish Sia understand me that I did NOT intend to hurt her. I’d like to apologize and wish she accept my sincere apology
Ms Han admitted to Ms Mota and Ms Thapa that, indeed, she had called Ms Bangao “a bitch”, but in the context set out in her written statement and confirmed in her oral evidence as I have set out at [42] and [43] above.
On 10 September 2019, Ms Mota sent to Ms Han a two page letter headed ‘Final Written Warning’ (the 10 September letter). The letter recited that St Basil’s had made decisions based on interviews with, and statements from, the witnesses and Ms Han and stated:
The Investigation findings are:
1. Breach of St Basil’s Homes Unacceptable Workplace Behaviours policy: Substantiated. Our investigation found that you told a joke that humiliated, offended and caused unnecessary distress to your colleague.
2.Breach of St Basil’s Homes Code of Conduct: Substantiated. Our investigation found that you did not treat your colleague with dignity, courtesy and respect.
3.During the investigation period, you have claimed sick leave without providing a medical certificate for the effected period. This is a breach of the St Basil’s Homes Leave policy.
4.Despite initially denying the alleged behavior [sic], at our most recent meeting on 05/09/2019 you have confirmed that each of the above behaviors [sic] happened. You have also apologized for your behavior [sic] to your colleagues and you confirmed that you do not have a medical certificate for the period of sick leave.
(emphasis added)
The letter informed Ms Han that St Basil’s had decided to give her a final warning because of her breaches of the code of conduct, her unacceptable workplace behaviour and breaches of its leave policies. It required Ms Han, by 24 September 2019, to retake and pass St Basil’s bullying and harassment online module and to read, understand, sign and return the code of conduct. Next, it stated:
4.We have decided to support you by placing you on weekday morning shift on Mondays and Tuesdays so we can monitor your behavior [sic] towards your colleagues and provide more direct management support and guidance. This arrangement will be until further notice, with a view to a return to the weekend duties at some point in the future. The details of this timeframe will be discussed with you when you commence your new shifts. Prior to this arrangement, we are giving you 2 weeks to organize any necessary preparation to commence the new roster days.
Mr Rooke said that the reason for including in the 10 September letter the finding that Ms Han had breached the leave policy was that a manager had explained to him that, during the investigation process, Ms Han had had a “short period of HR authorised leave” prior to the investigation which had expired and that:
then there was meant to be a reconciliation process to come back to work and return to work. During that time when the return to work was scheduled, Ms Han was on sick leave and started her own period of sick leave after the end of the authorised process.
That answer reflected the statement below in the 10 September letter:
Your requested sick leave for the last fortnight has been denied. You did not obtain a medical certificate for the sick leave and acknowledged this at our meeting. The leave taken over the past 2 weeks has been recorded as unpaid leave and you will not be paid in the payroll period that is being processed on 11 September 2019.
(emphasis added)
Since Ms Mota signed the 10 September letter, I infer that she told Mr Rooke what he attributed to a manager.
During her evidence, Ms Darwich acknowledged that Ms Han did not need to provide a medical certificate because she had been suspended. In the end, nothing turned on this. That position became common ground in the hearing.
What were St Basil’s reasons or intent for the warning?
Each of Mr Rooke, Ms Darwich and Ms Mota gave evidence about the reason or intent each had in causing Ms Han to be given the warning that the 10 September letter conveyed to her.
Mr Rooke said that, during the 14 August meeting with Ms Han, St Basil’s had given Ms Han an opportunity to provide a compliant medical certificate but she did not do so by “the deadline we set to provide the letter. So the decision was made to say that it wasn’t sick leave in accordance with our policy”. Mr Rooke said that Ms Han had characterised her use of the word “bitch” as not intended to give offence but as an attempt at humour that had been misunderstood. He said that, even accepting that Ms Han had not intended to harm the employee, she (Ms Bangao) had told St Basil’s that she:
felt humiliated and that they had been vilified in front of another staff member. So we felt that the language was inappropriate for the culture and being around the consumers and the space we were in. And that whether it was a joke or not, we did not put intent behind what Ms Han had said but we said it was inappropriate notwithstanding, given our policies of conduct and behaviour.
(emphasis added)
In examination in chief, Mr Rooke said that he had reviewed and approved Ms Mota sending the 10 September letter and the final warning that it gave to Ms Han. He said that his review and approval occurred in the context of his authority, in relation to serious warning letters, “to check them, to make sure the process had been correct and to sign off”. He gave his approval to Ms Mota sending the 10 September letter based on the four findings in it, in the context that, while the first two related to the one incident involving Ms Han using the word “bitch”, that conduct had been in breach of two different policies. He said:
There are four investigation findings here. There is a breach of unacceptable workplace behaviour, which was substantiated. There is a breach of code of conduct, which was substantiated. There is a breach of the sick leave policy, which … we gave time to rectify, and wasn’t rectified. And there was confirmation during discussion that the behaviours had happened without intent, but they had happened. In combination, these workplace, employee relations behaviours were of sufficient standing for us to issue a warning.
(emphasis added)
He said that his role was to look at the process that Ms Mota, as a general manager, had followed and to decide whether she had the discretionary power to issue the warning, but if she had that power, it was for the general manager to exercise as she saw fit. He said that, while he provided advice, perhaps based on information from an external service provider, about which of St Basil’s policies had been breached, the manager (scil: Ms Mota) “dealt with Ms Han in terms of their own feedback in that process, because it was a standard incident and did not go to my desk” (emphasis added). I accept this evidence of Mr Rooke.
Ms Darwich said that she discussed the findings in the draft of the 10 September letter with Mr Rooke and Ms Mota. She said that she came to an understanding with them that:
As a healthcare professional you don’t have the right to go to work and call anyone a bitch. Whether you apologise or not, the fact that it still happened … caused other staff members … within the workplace distress and anxiety. Then regardless of whether someone apologises or not, the incident occurred, people were affected by it and that was the outcome decided by the organisation.
She said that “for a healthcare professional to call another staff member a bitch within the workplace … doesn’t show respect, it doesn’t show dignity and it’s not courteous”. Ms Darwich said that the behaviour did not comply with the code of conduct. She believed that a registered nurse was a leader in the workplace to whom the assistants in nursing looked up and that people “don’t go to work to be treated badly or to be called a bitch”. Ms Darwich understood that Ms Han was scheduled to be on leave for the whole of the period during which the 10 September letter required Ms Han to retake and pass the bullying and harassment online module and sign the code of conduct. However, she was not aware that that would cause Ms Han to cancel her planned trip to China during that leave.
I accept Ms Darwich’s evidence that her reasons for approving the warning were only those she gave in the evidence I have summarised above.
Ms Mota said that, during the 5 September meeting, she tried to explain to Ms Han that, even though she may not have intended to harm Ms Bangao, the latter “was really upset by what happened”. Ms Mota thought that Ms Han was “open and honest”. In deciding to send the 10 September letter, Ms Mota said that she discussed the outcomes with the human resources team (scil: Mr Rooke and his team) to see what could be done to support Ms Han “and at the same time be able to give us the confidence that this behaviour is not happening … at any point … when you’ve got someone in … a leadership role”. Ms Mota regarded the incident of calling Ms Bangao “a bitch” to be a major breach of the code of conduct. I accept Ms Mota’s evidence on this issue.
Ms Han’s submissions on the reasons for the warning
Ms Han alleged (in essence in her statement of claim) that St Basil’s took adverse action against her in giving her the warning because, from June 2019, she had complained to St Basil’s about the close relationship between her Filipino co-workers, their discriminatory and bullying conduct towards her and because she was Chinese. She asserted that St Basil’s gave her the warning, denied her sick pay while suspended because she had not provided a medical certificate and changed her shifts from weekend to weekdays so that another, newly employed, Filipino registered nurse, Heidee Lee, could be given her weekend day shifts, which were more favourable for Ms Lee, because she was a relative or friend of the Filipino employee cohort.
Was the warning adverse action taken because of a proscribed reason?
I reject Ms Han’s argument that St Basils contravened ss 340(1)(a)(ii) or 351(1) of the Act in giving her the warning in the 10 September letter.
I am satisfied that each of Mr Rooke, Ms Darwich and Ms Mota decided to give the warning and to send the 10 September letter to Ms Han only because she had contravened the code of conduct by calling Ms Bangao “a bitch” and for the mistaken, but, for present purposes, irrelevant reason, that they thought she had contravened the sick leave policy. I am satisfied that each of them regarded Ms Han’s use of the word ‘bitch’ as unacceptable in the workplace and because that conduct had caused Ms Bangao to be distressed, even though they each accepted that Ms Han did not intend to cause distress or harm when she said it. I accept Ms Mota’s evidence that she regarded Ms Han’s use of the expression “a bitch” to be a major breach of the code of conduct.
While Ms Han alleged that Ms Alcantara, who appears to have encouraged Ms Bangao to complain, and Mr Dhungana were all Filipino and Ms Han suggested they acted to discriminate against her, because she was Chinese, there was no direct evidence that the actual or perceived state of mind of those co-workers was shared by St Basil’s, through its decision-makers (Mr Rooke, Ms Darwich and Ms Mota), when each gave or agreed to give Ms Han the warning or that they acted in doing so for a substantial and operative reason that included that state of mind.
Here, Ms Han had a workplace right to make a complaint or inquiry in relation to her employment pursuant to s 341(1)(c) of the Act under the following policies of St Basil’s:
(a)the code of conduct as to breach of:
(i)professional conduct, including putting customers (ie. residents) at risk through medication errors and physical abuse;
(ii)expectations that all individuals be treated with dignity, courtesy and respect (see [30]–[31] above);
(b)the counselling and discipline policy as to behaviour by staff that caused serious and imminent risk to the health and safety of a resident (see [32] above); and
(c)the procedural framework policy as to errors in administration of schedule 8 medicines, such as Targin (see [35]–[36] above).
Of course, the crucial issue is whether St Basil’s took the adverse action of termination for one or more reasons that included a proscribed reason, not whether St Basil’s gave her a fair procedure or unfairly dismissed her.
St Basil’s employees created at least three documents that recorded varying reasons for Ms Han’s termination, namely:
·Ms Mota’s minutes of the 23 January meeting between her, Ms Darwich and Ms Han;
·Ms Darwich’s complaint to AHPRA; and
·St Basil’s 6 February letter to Ms Han.
There are discrepancies between, first, those three documents and, secondly, their assertions in respect of Ms Han’s conduct attending to Ms Toliopoulos when compared to the objective material in St Basil’s medical records and written statements by Mr Agbada, Ms Young and Ms Kakias.
There was no report or summary of any investigation of Ms Han’s 24 December complaint or conduct beyond Ms Mota’s handwritten notes of her interviews, Ms Young’s note, Mr Agbada’s email and the belated entries on the incident report forms (see [175]–[177] above). Mr Rooke had no real recollection of involvement beyond being shown materials and settling the form of an unspecified draft letter. As I have found, Mr Rooke was only involved in relation to the decision to terminate Ms Han after the event when he settled the form of the 6 February letter that occurred after her dismissal.
Ms Darwich had done none of the “investigation” before Ms Mota sent the 13 January letter. Ms Darwich relied on Ms Mota’s oral reporting to her of whatever Ms Mota’s investigation had found and did no work to check any of what Ms Mota told her.
Moreover, the only matter of concern that Ms Mota asserted in the 13, 20 and 21 January letters was in relation to the clinical care of unnamed residents. That did not involve any suggestion that Ms Han had given an inappropriate instruction to Ms Young to administer oxygen to any resident.
I am not satisfied that Ms Mota believed that Ms Han had acted in breach of any duty as a nurse in giving Ms Young the instruction to administer oxygen on 15 December 2019. This is because Ms Mota knew that there was no such policy and there had been no communication to staff that a team leader, whom a registered nurse had assessed as competent to do so, could not administer oxygen (see [192]–[194] above).
Even on Ms Darwich’s evidence (that I have not accepted because I found that she gave Ms Han no reasons), on 17 January 2020, she gave as the only reason for her suspension to Ms Han that it was in relation to “the clinical care of a resident at Lakemba” (see [169] above).
Ms Mota sent Ms Han the 13, 20 and 21 January letters and knew, when doing so, that she had not given Ms Han any prior opportunity to know that her conduct was now being called into question. There was no objective basis for St Basil’s or Ms Mota to have any concern about Ms Han’s clinical care of anyone at those times, as I have explained above. As Ms Mota admitted, it was she who raised concerns about Ms Han by purportedly “investigating” her complaints without affording any procedural fairness to Ms Han or acting with any objectivity in doing so. Instead, Ms Mota brushed aside the substantive issues with the conduct of her two fellow Filipino employees, Mr Agbada and Ms Young, because she asserted that there “was no performance issues with Von and same with Charito” (see [157] above).
I reject St Basil’s submission that Ms Mota took, or participated in, the adverse action of terminating Ms Han with a genuine and sincere belief that Ms Han had asked Ms Young to act outside the scope of her duties by administering oxygen to Ms Toliopoulos.
Moreover, the AHPRA complaint stated that one reason for Ms Han’s termination was “Breach of privacy and confidentiality- High level, clinical information observed on her phone by the CEO”. That observation of Father Nicholas occurred because, and only because, Ms Han was attempting to exercise her workplace right to explain why she should not be terminated in the course of elaborating her 1 December complaint about Ms Pandey and the treatment of Mr Arnaoutis, a photograph of whose significant bruising she was showing Father Nicholas on the Leecare access she still had on her phone. As he acknowledged to Ms Han in cross‑examination, “you were trying to report issues of care that you felt were problematic” (see [202] above).
The 6 February letter referred to “opportunities for you to understand and respond to the allegations, including at our meetings on 12/12/2019 and 23/01/2020”. There were no allegations against Ms Han at the 12 December meeting. The purpose of that meeting was to discuss her 1 December complaint.
Mr Rooke, Ms Mota and Ms Darwich did not explain how the 6 February letter came to include its reference to allegations against Ms Han discussed in the 12 December meeting. I infer that this reference was to Mr Rooke’s and Ms Mota’s disapprobation of Ms Han’s exercise of her workplace right to complain about her bona fide and reportable allegations of breaches by other staff of their duties as employees, including those in her 1 and 24 December complaints.
Ms Mota favoured her fellow Filipino co-workers over the Chinese, Ms Han, by reporting to both Mr Rooke and Ms Darwich (who each relied on her reports) that there were no issues with the conduct of Mr Agbada or Ms Young, as well as Ms Pandey and Ms Lee, despite the reasonable material to which Ms Han referred in her 1 and 24 December complaints in St Basil’s records.
Ms Mota’s adverse reporting to Father Nicholas, Mr Rooke and Ms Darwich affected their attitudes to Ms Han, including the false creation of “serious concerns”, for at least Ms Darwich, by the time Ms Mota sent the 13 January letter to Ms Han. Ms Mota’s pejorative reporting about Ms Han to Ms Darwich and Mr Rooke created a different assessment process than should have obtained when St Basil’s took the adverse action of terminating Ms Han: Kodak 129 IR at 260 [37]; Wong 318 IR at 167–168 [78]–[79], [82].
For the above reasons, I am not satisfied that St Basil’s discharged its onus of proof to displace the presumption in s 361(1) of the Act that, when it took the adverse action of terminating Ms Han’s employment on 23 January 2020, it did so because she had exercised her workplace right to make a complaint or inquiry in relation to her employment or because of her Chinese race.
CONCLUSION
Accordingly, I find that, on 23 January 2020, St Basil’s took adverse action against Ms Han by terminating her employment because each of the following was a substantial and operative reason for that action, namely:
(a)Ms Han’s exercise, as an employee, of her workplace right to make a complaint or inquiry in relation to her employment; and or
(b)because of her Chinese race.
I will make declarations to this effect and list the matter for a hearing to determine what remedies and penalties should be ordered.
I certify that the preceding two hundred and forty-two (242) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares. Associate:
Dated: 25 August 2023
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