Milonas v Monash Health
[2022] VCC 1964
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CI-20-04467
| VIVIAN MILONAS | Plaintiff |
| v | |
| MONASH HEALTH | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28, 29 and 30 September 2022, 3, 4, 5, 6, 11, 12, 13, 14, 17, 18, 19 and 20 October 2022, 9 November 2022 | |
DATE OF JUDGMENT: | 9 December 2022 | |
CASE MAY BE CITED AS: | Milonas v Monash Health | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1964 | |
REASONS FOR JUDGMENT
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Subject:TORTS – WORKERS’ COMPENSATION – CONTRACT LAW – DAMAGES
Catchwords: Psychological injury – Plaintiff falsified work timesheets pursuant to an alleged verbal agreement – whether there was an agreement – workplace investigation – whether procedural fairness afforded – Plaintiff fixated on termination of employment – credibility of the Plaintiff – novel duty of care in the course of workplace investigations – incorporation of policies and Enterprise Agreement into employment contract – alleged breach of employment contract
Legislation Cited: Health Services Act 1988 (Vic)
Cases Cited:Fox v Percy (2003) 214 CLR 118; Briginshaw v Briginshaw (1938) 60 CLR 336; State of NSW v Paige (2002) 60 NSWLR 371; Shaw v State of NSW [2012] NSWCA 102; Govier v The Uniting Church In Australia Property Trust (Q) [2017] QCA 12; Sullivan v Moody (2001) 207 CLR 562; Farah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89; Irving & Ors v Kleinman [2005] NSWCA 116; Kioa v West (1985) 159 CLR 550; Lloyd v Healthscope Operations Pty Ltd [2021] VSCA 327; Byrne v Australian Airlines Ltd (1995) CLR 410; Goldman Sachs JB Were Services v Nikolich (1993) 176 CLR 344; Baltic Shipping Company v Dillon (1993) 176 CLR 344; Aldersea v Public Transport Corporation (2001) 3 VR 499
Judgment: Judgment for the Defendant
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram KC with Mr L Perilli | Carbone Lawyers |
| For the Defendant | Ms M Britbart KC with Ms C Kusiak | Hall & Wilcox |
HIS HONOUR:
Introduction
1Vivian Milonas[1] was terminated from her position with Monash Health after 36 years of service in May 2013. The reasons for that termination, the employer’s actions in coming to the decision to terminate and the process it undertook in the course of the termination, are alleged to have caused injury to Ms Milonas. Such injury is said to sound in damages because there has been either a tortious breach of duty owed by Monash Health to Ms Milonas, or by reason of breach of contractual terms said to be implied into Ms Milonas’ employment contract. To succeed, Ms Milonas must demonstrate that a duty of care exists in the circumstances of this case. Similarly, she must show that certain terms are implied into her employment contract. Debate over these matters, however, cannot obscure the fundamental factual question as to whether Ms Milonas wrongly falsified timesheets from 2007 to 2013, and improperly enriched herself. I find that the answer to that question is that she did falsify her timesheets. It follows then that even if a duty of care was imposed, as submitted, it was not breached, nor were any contractual terms breached because in either event, Monash Health was entitled to summarily dismiss her in the manner it did.
[1]The transcript footnotes in this Judgment refer to the pagination of the hard copy version of the Trial transcript
Brief factual background
2Ms Milonas was born in April 1953 in Greece. She was at school until the age of fourteen, and then migrated to Australia. In about 1977 she commenced working at the Queen Victoria Medical Centre in Melbourne City.[2] From that time, she commenced working afternoon shifts; these were from 5pm to 10pm, and later on in her employment became 1pm to 10pm. Such a shift attracted an afternoon shift penalty which was at a pay-rate above that received by those who worked day shifts, being 9am to 5pm.[3] Ms Milonas worked in the food services department.
[2]The footnotes in this Judgment refer to the pagination of the electronic copy version of the documents tendered at Trial, except the transcript reference; Defendant’s Court Book (“DCB”) 70
[3]Transcript (“T”) 152, Line (“L”) 15
3In the late 1980s, the Queen Victoria Medical Centre was relocated to Monash Medical Centre (MMC) in Clayton. Ms Milonas moved there in the same role she held at the Queen Victoria Medical Centre in the food services unit. In that unit her job was described as a Food Services Assistant, which held a classification known as “FSA” HA1.[4] From at least 2001, Ms Milonas would also act in the higher position of assistant manager, also known as “Food Services Assistant In Charge”,[5] a role which had a classification of “FS1”.[6] Above the Food Services In Charge position was the role of Assistant Manager Food Services (“NV1”), then Food Services Manager, then Group Services Manager, and above that Director.
[4]T227
[5]T230, L2
[6]DCB 72
4Relevantly, in mid-2006 Ms Milonas was employed as a Food Services Assistant (FSA).[7] The Assistant Manager Food Services (NV1) position was occupied then by Ms Eleanor Starkey, and above her in the hierarchy was Mr Arvind Sharma, the Food Services Manager, and above him, Ms Denese Unicomb, Group Services Manager.[8] At this time, Monash Health began a process of bringing all staff onto new standardised in-house classifications.[9] This meant there were changes to job roles, titles, pay rates and classifications. During this time, in mid to late 2006, Eleanor Starkey left the organisation. At the time she left she occupied the role which carried a classification of NV1, commensurate with being an Assistant Manager Food Services. This came with certain pay-rates and certain job functions. Under the new classifications, the NV1 classification was abolished. Most duties under the NV1 classification were absorbed into the Food Services In Charge role with the FS1 classification.
[7]DCB 74
[8]Ms Unicomb has now reverted to her maiden name of Ms Billings, but for consistency I will continue to refer to her using her surname as of 2006 of Unicomb
[9]Southern Health, under which Monash Medical Centre fell, subsequently changed its trading name to Monash Health, the named Defendant. For consistency I will continue to use the Defendant’s title of Monash Health
5Up to this point the parties are broadly in agreement, and thereafter in heavy disagreement. For this reason, I will now give a very broad overview of the factual landscape. I will then come to make findings as to the contested matters later in this judgment under specific topics.
6Broadly, it is alleged that Ms Milonas took up the new FS1 position in about October 2006 on a temporary basis. However, on her case, she only agreed to do so if Monash agreed to maintain her old wages. This is because the FS1 position was a 9.30am to 5.30pm role, Monday to Friday, which attracted no afternoon-shift penalties and had no weekend work – the loss of which meant Ms Milonas would technically have a more senior position but receive less in her pocket for it. To remedy this situation, Ms Milonas alleges that she and her manager, Arvind Sharma, and the Group Services Manager, Denese Unicomb at the time, agreed that Ms Milonas would:
(a) move to the new FS1 role working Monday to Friday between 9.30am and 5.30pm;
(b) receive an increase in her hourly rate commensurate with an FS1 position from $17 to $21;[10]
(c) write timesheets which falsely recorded her working evening and weekend shifts, as she had been working for her last 30 years, in order to “maintain” her earnings.
The above matters at (a) – (c) are defined for the purposes of this judgment as “the alleged agreement”.
[10]There is some debate over whether this was a term discussed. See the contrast of the Affidavit of Arvind Sharma sworn on 1 August 2022, at paragraph [10] and yet at DCB 75 the Variation signed by Ms Sharma was said to reflect part of the agreement of an increase in the hourly wage rate
7The Defendant denies that any such meeting with Ms Unicomb occurred, it further denied there was any alleged agreement and submits that the terms comprising the alleged agreement were never agreed to.
8What is not in dispute is that from 2007 to 30 April 2013 Ms Milonas wrote timesheets in accordance with the alleged agreement; Mr Sharma authorised them; and Monash paid in line with the times so verified.
9Pausing there. This is the first factual dispute: was there an alleged agreement struck between Ms Milonas, Mr Sharma, and Ms Unicomb?
10Returning to the chronology. It will be recalled that Monash denies the alleged agreement and, further, alleges that it did not have knowledge of it until about April 2013. At that time, an anonymous letter appeared on a staff noticeboard, in the food services area. The letter alleged that Ms Milonas and Mr Sharma had colluded to falsify her timesheets, resulting in a substantial windfall for her; mismanagement and cronyism in the operation of the food services area; and unhygienic facilities under their care. A very similar letter was received by Ms Sharon McNulty, the Director with responsibility for the food services area. Ms McNulty sought assistance from Mr Ryan Willmott from the Monash Human Resources Department. Together they commenced an investigation. They called in the Group Services Manager, Mr Alfred Matthews, who denied knowing of the alleged agreement and the submitting of time sheets in purported accordance with it. He was the manager next up the chain from Mr Sharma. They also contacted Ms Unicomb, who had left Monash in January 2007. She could not remember Ms Milonas or the alleged meeting. She stated she would not have authorised an arrangement which involved inaccurate time-sheet recording.
11The above factual matters in the preceding paragraph are fairly settled between the parties. Thereafter, however, there is a substantial dispute. Once again, a very broad factual survey sketches the contested ground, which I will then go on to make factual findings about later on.
12As the evidence unfolded the following seems to be the broad sequence. Before setting this out I make it clear that this is not the Plaintiff’s case. It appears that on 14 May 2013, Ms McNulty called the Plaintiff and Mr Sharma and told them about the allegations. She followed this up with a letter inviting them to a meeting on 16 May 2013. At those meetings, held separately for the Plaintiff and Mr Sharma, Ms McNulty and Mr Willmott were told of the alleged agreement. They invited the Plaintiff and Mr Sharma to provide any material in support of the alleged agreement. On 17 May 2013 a further meeting was held with Mr Sharma. No further material was produced to support the existence of the alleged agreement. On 20 May 2013 a further meeting was scheduled with Ms McNulty, Mr Willmott, the Plaintiff and a representative of the Plaintiff from the Health Services Arbitration and Mediation Service, Ms Pauline Fegan. Ms Milonas produced no further information, and she was terminated with effect immediately on the basis of fraudulently completing timesheets and unduly enriching herself.
13The Plaintiff alleges that the manner of her treatment in the weeks leading up to 20 May 2013, and the manner of her treatment on 20 May 2013 have led to her developing a permanent recognised psychological injury and being rendered totally incapacitated for work. She claims both general and pecuniary loss damages.
14From that brief survey, I now turn to the first specified issue to be answered: was there an alleged agreement struck between Ms Milonas, Mr Sharma, and Ms Unicomb? I find that the answer to that question is no.
Did the alleged agreement exist?
15The first thing to note is that the evidence given by the Plaintiff’s witnesses as to the formation of the alleged agreement varies substantially. The variations are so significant that they go beyond what could be expected from witnesses recalling matters from some 15 years ago. I find the differences are material, and weigh against the acceptance of there being an agreement as alleged. This material difference can be seen from the Plaintiff’s own evidence. Initially she gave evidence that she, Mr Sharma and Ms Unicomb met and discussed the hours and penalty rates that she would receive if she took the new FS1 position.[11] At that time she refused to work in the FS1 role because she would lose her penalties.[12] She gave evidence that Ms Unicomb and Mr Sharma in that same meeting, then said to her that she could complete her timesheets so that she could continue receiving her penalty rates.[13]
[11]T160, L8 - T164, L15; particularly T160, L24-31
[12] T160, L31 – T161, L1
[13]T161, L2-4
16She alleged in her evidence that Ms Unicomb said she could “continue on with…[her]… old roster, the way…[she was]… paid before”.[14]
[14]T331, L16-17
17However, in cross-examination she admitted her memory may not be accurate and it may not have been Ms Unicomb but another manager.[15] She was emphatic, though, that when Ms Unicomb offered her the job she said she would not take it unless she got her penalties.[16] She could not time the meeting to a specific date.
[15]T252, L10-13
[16]T253, L23-24
18Mr Sharma, however, gave evidence that the meeting involved all three of them[17] and occurred on the last day of Ms Unicomb’s employment.[18] When he swore an Affidavit some three months prior to trial and gave evidence in chief, he timed this meeting to about June 2007.[19] In cross-examination, Mr Sharma said that the proposal for Ms Milonas to falsely record time worked as evening shifts was suggested by him.[20] However, he said that Ms Unicomb said nothing at all in the meeting about the Plaintiff’s wages.[21] This point is of fundamental importance. Critically, Mr Sharma said as to Ms Unicomb’s agreement to the proposal:
Q:“She said nothing about timesheets or wages or anything else?---
A:She didn’t say anything, yes.”[22]
[17]T511, L9-10
[18] T511, L16-17
[19]Affidavit of Arvind Sharma sworn on 1 August 2022, Exhibit D7, at paragraph [8]-[9]; T510, L19 -L24
[20] T551, L10
[21]T551, L8-25
[22]T551, L24-25
19It is unclear how, on Ms Milonas’ evidence, Ms Unicomb discussed hours and penalty rates, and yet on Mr Sharma’s evidence she said nothing about this at all. I find this to be a very significant difference on a crucial part of the Plaintiff’s case. I find it weighs against her version of events.
20It must be remembered that it is the Defendant’s position that this meeting did not occur, and that no agreement of the type alleged was entered into. There are a number of matters which strongly support this contention. This follows on from the confusion in the evidence between Ms Milonas and Mr Sharma. It commences with the fact that it was Ms Milonas who applied for the FS1 job voluntarily.[23]
[23]T249, L1-2
21The job that she applied for was as the Food Services Supervisor with the FS1 classification. Its hours were known to be Monday to Friday, 9.30am to 5.30pm. It came with no afternoon or weekend penalty rates. As was made clear by Ms McNulty, the Director, a change from shift hours with penalty rates to daytime office hours often results in a reduction in pay. This is a well-recognised fact. But the new position came with a higher base rate, more stable hours, and potentially more career progression as a worker step into management. Therefore, the fact that Ms Milonas, a long-time employee of Monash, expected to make such a move into management and off shift work meant that she was likely to have known there would be a commensurate reduction in earnings.
22I am mindful that the High Court in Fox v Percy reminds Court’s making findings of fact that it is preferrable to rely on, “…contemporary materials, objectively established facts and the apparent logic of events…”[24] to explain patterns of behaviour. Taking this into account I find that it is improbable that an experienced worker would expect to retain shift penalties when voluntarily taking on a non-shift role. This tells against Ms Milonas’ version.
[24] Fox v Percy (2003) 214 CLR 118 at [31]
23Next, the evidence of Ms Unicomb was called in aid by the Defendant. Ms Unicomb arrived at Monash Health in mid-2006 and left in January 2007.[25] On her evidence she was very experienced in hospital management. She worked initially at the Royal Melbourne Hospital; then at North Western Health; then at the Freemasons Hospital; and then ultimately at Monash Health. She was called by both the Plaintiff and the Defendant. She gave very clear, helpful and forthright evidence. I formed the view that she was very knowledgeable and capable. I regard her as a witness of truth. She could not recall Ms Milonas, but could recall Mr Sharma and that he directly reported to her. She described her last day at Monash as hectic, and that she was trying to tie up loose ends and leave handover notes.[26]
[25]T1009-1010
[26]T1014
24She gave evidence that if the proposed alleged agreement had been put to her, she would have rejected it.[27] She gave several reasons for this.[28] She gave evidence that such an arrangement could have been made via existing processes – known as a salary maintenance agreement (SMA) or an over-award payment.[29] Both are written forms of agreement. I find on the basis of the evidence of Ms Unicomb and Ms McNulty, that both are well known in the health industry and allow for a set amount to be paid in addition to base salary. I note that Ms Milonas’ alleged agreement, ran contrary to the above accepted methods of allocating additional salary over the base rate, because the agreement was not in writing and not for a set amount. Rather, it was wholly oral, and each week the pay would depend on the times and shifts Ms Milonas falsely entered on her timesheet, which varied week to week. The next reason Ms Unicomb gave as to why it was unlikely the meeting and the alleged agreement occurred was that the alleged agreement would require Ms Milonas to falsify timesheets.[30] She had never seen a pay arrangement where such a falsification was accepted. She was categorical about that. I accept her evidence on this point.
[27]DCB 81
[28] T1016, L31 – T1017, L3
[29]T1018, L15-19
[30]T1023, L8-9
25This is bolstered by the fact that all witnesses who had worked at Monash Health in 2007 accepted that timesheets were legal documents that had to be correct and should not be falsified.[31] This supports the fact that not only was this policy, but also accepted practice, that was not deviated from. Ms Milonas in fact gave evidence in which she accepted that in her role as an FS1 in charge, she diligently maintained scrutiny of employee timesheets to ensure they were accurate. This seems an inherent contradiction in the Plaintiff’s case: that she ensured the accuracy of employee timesheets yet hers was knowingly false. This demonstrates support for Ms Unicomb’s statement that she would not encourage Ms Milonas to falsely record hours worked on her timesheet. It goes against both policy and practice.
[31] T827, L9-10; T586, L28-29
26The next reason Ms Unicomb gave was the risk such an alleged agreement would pose to the organisation.[32] From a manager’s perspective, it is abundantly clear that accurately recording and knowing where staff are at any one time is vital in terms of workload or in the event of an emergency. Ms Unicomb’s alleged encouragement of false time records runs contrary to competent management.
[32]T1024, L31 – T1025, L5
27When the Plaintiff’s counsel came to cross-examine Ms Unicomb, he did not put Ms Milonas’ version of the alleged meeting to her. Rather, he put a version of events constructed from Mr Sharma’s evidence: this was that at the alleged meeting, Mr Sharma was the one who put the proposal of the alleged agreement, and Ms Unicomb did not express disagreement with it, which Mr Sharma then interpreted as agreement with the proposal.[33] Ms Unicomb disagreed with even that proposal, in a clear and rational way, which was that if she had not understood, she would have simply left the issue to be decided by the next Group Services Manager. On her evidence, this issue was neither urgent nor a loose end because there was already a variation agreement allowing Ms Milonas to act in the FS1 role until 30 June 2007, which was some six months away.[34] It also suggests that the meeting did not occur as Mr Sharma suggests, because there was no reason for her to rush through this agreement in January 2007, given Ms Milonas was assured of her position until June 2007.
[33] T1038
[34]T1040, L28-30
28Turning away from Ms Unicomb’s evidence then and examining the other evidence. I have considered all the tendered material and the viva voce material. It supports my finding that there was no alleged agreement. This is partly because of the fact that both Ms Milonas and Mr Sharma are very experienced health workers who well knew hospital processes at Monash. Mr Sharma had worked in management at Monash since 2002. He had done numerous courses in business and health management.[35] He accepted that he took his role seriously and acknowledged that a key competency of that was ensuring employees followed all the policies and procedures of the organisation.[36] He had started at Monash in 2002 in his role as Food Services Manager. In that role he met Ms Milonas. As part of that role, he was responsible for authorising salary variation agreements. On 29 September 2003 he had authorised a variation for Ms Milonas from FSA to FS1 for a period until 13 October 2003.[37] Similarly, he authorised a salary variation for Ms Milonas’ position to FS1 on 24 October 2005 to 18 December 2005.[38] On both of these documents, Ms Milonas has also signed. The temporary arrangements were put in place when Ms Starkey took leave from the FS1 supervisor role and Ms Milonas acted in that role.
[35]T437, L25 – L28; T477 -T478
[36]T480, L7
[37]DCB 72
[38]DCB 73
29Then, in October 2006, Ms Starkey resigned, and the Plaintiff was put in her place on an acting basis.[39] The acting position ran from 23 October 2006 to 30 June 2007. No alteration to the base rate from FSA to FS1 was noted on this form.[40] The document was signed by Mr Sharma as the authorised manager and by Ms Milonas as well.
[39]DCB 74
[40]ibid; Note the form confuses the job title with the grade but it is clear that the job title is FSA with the grade HA1
30Then, on 17 July 2007, Mr Sharma signed a variation form. This form is important. It changes Ms Milonas from the classification HA1, a Food Services Assistant permanent, to a Supervisor classification of FS1 on a full-time basis.[41] Her base rate was written in to increase from $17.98 per hour to $21.19 per hour. As noted previously, on the Plaintiff’s case (in Mr Sharma’s evidence),[42] this form coincided with a meeting that was held with Ms Unicomb on her last day of employment, which was sometime in January 2007. However, this cannot be correct if, as Ms Unicomb’s evidence was, she left in January 2007. Of itself, I find this tells strongly against the Plaintiff’s case because Mr Sharma’s memory of the details of the meeting date are so obviously wrong. Moving on, however, to the related point, this form shows that Mr Sharma and Ms Milonas were cognisant of a change in pay and the need to document the change in accordance with the policy and procedure expected by Monash to authorise payments. In fact, Ms Milonas gave evidence that in her role as supervisor she checked timecards for accuracy and was particularly careful about ensuring that they were accurate.[43]
[41] DCB 75
[42] Affidavit of Arvind Sharma sworn on 1 August 2022, Exhibit D7, at paragraph [13]
[43]T236, L18-22
31Yet despite this evidence on behalf of Mr Sharma and Ms Milonas, on the Plaintiff’s case they suggested a method of increasing Ms Milonas’s income in direct contravention of their training, experience, and knowledge of the practice and procedure of Monash. I find this highly unlikely.
32It is even more unlikely, given that not one witness could ever recall such an oral agreement being in place previously. This is despite all the years of service at Monash that they had (Ms Milonas, 36 years; Mr Sharma, 11 years; Mr Matthews, 7 years; and Ms McNulty, over 20 years). It was totally unique.
33Furthermore, there is no logical reason why such a unique agreement would not be written down. If Mr Sharma was so concerned to write down variations of employment when Ms Milonas was acting for a few weeks, as in 2003 or 2005, it makes no sense why he would not write down the terms of a unique agreement he believed had been properly authorised by his manager, Ms Unicomb.
34Similarly, it makes no sense as to why Mr Sharma at no stage mentioned this unique oral agreement to anyone, and particularly Mr Matthews, who replaced Ms Unicomb in 2007. Mr Matthews gave evidence that at no stage was he told by Mr Sharma or Ms Milonas of the alleged agreement. While it was suggested that a manager in Mr Sharma’s position was not procedurally obligated to inform his manager of staff pay changes, I consider that the unique, oral nature of this alleged agreement would have led any diligent, competent, well-trained manager to discuss openly with his supervisor an agreement which had been reached with his predecessor. Mr Sharma was certainly well trained and experienced. He held his position from 2002 and Mr Mathews held him in high regard all of which indicated he was competent. The fact he failed to disclose the alleged agreement then is completely inconsistent with his training, experience and the expectations of him as a competent manager.
35On these last two above points, Ms Milonas gave contradictory and confused evidence. In the closing parts of her evidence, she gave evidence that she had in fact the same agreement with Eleanor Starkey as the alleged agreement which was struck with Ms Unicomb.[44] Despite previously denying in cross-examination that similar agreements existed, she volunteered this right at the end of her cross-examination, which occurred on day five of her evidence.[45] The Plaintiff did not call Ms Starkey to give evidence. I find it striking that this evidence was given some 5 days into her evidence. It was never opened as a factor supporting the existence of the alleged agreement, as simply being the continuation of an accepted practice, nor was it even mentioned in closing submissions. All this leads me to conclude that this was simply an invention designed to try and sway the Court to accept the Plaintiff’s claim.
[44] T398, L14 – T399, L9
[45]T400, L10-15
36This omission is perplexing as its existence supports the alleged agreement as Mr Sharma gave evidence about. As the Defendant points out however, it is even more unlikely that Mr Sharma and Ms Starkey would come up with exactly the same agreement independent of each other. I find this is highly unlikely.
37I reject it.
38Similarly, at the very end of re-examination, Ms Milonas gave evidence that after the alleged agreement was struck:
“... there had been a meeting with all the workers and all the workers were told that Vivian have going to be working at 9.30 from now on but I would be putting my times in because they wouldn’t pay me as an assistant manager.”[46]
[46]T431, L24-28
39This was the first time that it was ever suggested that the alleged agreement was made public.[47] The timing of this evidence, the manner in which it was given, and its conflict with earlier evidence of the Plaintiff and that of Mr Sharma, leads me to find that this meeting where other staff were informed did not occur. I find this stands as a further invention on the Plaintiff’s behalf, designed simply to sway the Court. I reject it.
[47]The tendered Plaintiff’s Answers to the Defendants Interrogatories, Exhibit D9, state that at no time was the alleged agreement made public
40A further matter which makes the alleged agreement unlikely is the stated aim of the agreement as set against its result. The purpose of the alleged agreement was the maintenance of Ms Milonas’ salary. However, the reality of it was a substantial increase in her salary. The substantial increase occurs because, first, her base rate increased to $21.19 per hour, and then this was applied to all the shifts she claimed. Evidence was given that a normal salary maintenance agreement tops up a wage by a set dollar figure each week for the life of the agreement. Rather, the pay under the alleged agreement here varied each week on account of the shifts and days that Ms Milonas would nominate that she had worked. It is to be noted that Mr Sharma signed each timesheet, and payroll then simply paid in accordance.
41An example that makes this clear is Ms Milonas was meant to work an 80‑hour fortnight. On her payslips she wrote that she worked Saturdays and Sundays, 9.30am to 6.30pm, which attracted penalty rates for weekend work. However, on some timesheets she claimed one day as an ADO, 8 hours, claimed annual leave for one Saturday, 8 hours, and one Sunday, 8 hours, and still wrote in having worked 72 hours per fortnight, so in total she was paid for 96 hours.[48] Annual leave, of course, should be taken in lieu of work hours, and not on the basis of Saturday and Sunday penalty rates. This example clearly indicates that the timesheets were being manipulated to very significantly increase Ms Milonas’ wage.[49]
[48]DCB 384
[49]There are other examples of the way in which the alleged agreement resulted in a windfall gain to Ms Milonas, see Defendant’s submissions dated 28 October 2022 at paragraph [59]-[60] which I accept
42For all the above reasons, I find that the evidence does not support the fact that there was a meeting with Mr Sharma, Ms Milonas and Ms Unicomb as alleged, and that at that time the alleged agreement was put into effect. In coming to this finding, I am mindful of the principles in Briginshaw v Briginshaw (“Briginshaw”).[50] I am satisfied on the balance of probabilities to a more than comfortable level of satisfaction that there has been timesheet fraud given there was no alleged agreement.
[50] (1938) 60 CLR 336
43In coming to that finding, it is also clear that I consider that the evidence of Ms Milonas was inconsistent and unreliable. To this I would add that I found her a very difficult witness to follow. I had to repeatedly ask her to directly answer questions. However, the medical evidence suggests that psychologically she has fixated on the alleged agreement and her treatment. The evidence of Associate Professor Shashjit Varma was that this fixation has led to her not properly focusing on questions, and rather reverting at all times to the alleged agreement. The lay witness Mr Goutzamanis gave very similar evidence about noticing this feature of her presentation in 2018. Taking into account that medical evidence and accepting the lay evidence that such is a feature of her psychological condition, I put to one side my perception of her as an unhelpful witness while giving evidence. Rather, focusing attention on the inconsistencies and the unreliability of her evidence, and the instances of very lately announced matters referred to above, I overall find that I cannot rely on her evidence other than on the most basic, non-controversial matters.
44Mr Sharma gave evidence over an extended period. I consider that he was a witness who gave evidence in a manner which sought to be helpful, and he gave considered answers. However, when examined closely, his evidence is inconsistent with both policy and practice at Monash. For a manager of his skills and experience, it cannot be reconciled with the terms of the alleged agreement. Further, I cannot reconcile the inconsistencies between the dates he states that the alleged agreement occurred in his Affidavit, the dates he provides in his viva voce evidence, and the fact of Ms Unicomb’s departure having occurred in early 2007.[51] Overall, I am unable to rely on his evidence.
[51] T506-T508
The investigation and termination – factual findings
45I now turn to examine the second major factual dispute, which concerns what occurred during the investigation of the Plaintiff regarding the alleged agreement and leading to her termination on 20 May 2013. In summary form, the Plaintiff alleges this process:
a)was a breach of terms implied into her employment contract that required she be afforded natural justice in the investigation and leading to termination;
b)was a breach of the duty of care owed to her, resulting in her psychological injury.
46There are a few reasonably non-contentious matters which can be accepted. These commence when the anonymous letter was published at the end of April 2013. Around this time, Ms Milonas became aware of the existence of the allegations through another kitchen worker. Management, being Ms McNulty, became aware of the letters shortly after that time.[52] By 30 April 2013, Ms McNulty had begun preliminary investigations.[53] This involved her asking for a check to be made of Ms Milonas’ file for any paperwork authorising the alleged agreement, and for the human resources department (“HR”) to check for any similar paperwork.[54]
[52]DCB 684-685; see email from Sharon McNulty to Fiona Prestedge dated 1 May 2013
[53]ibid
[54]DCB 686; see email of Sharon McNulty to Fiona Prestedge dated 1 May 2013
47The evidence between the parties then diverges substantially. The Plaintiff’s evidence is that the first she knew of management being involved was a phone call from Ms McNulty, who said she wanted to talk to her and immediately called her up to Ms McNulty’s room.[55] Then, on the Plaintiff’s evidence, she went up to Ms McNulty’s office and the following exchange then occurred.
“So she didn’t even take me into her office, she spoke to me out in the corridor and she said, instead of speaking to me and asking me anything, she said, ‘Get out of this place in less than two minutes.’”[56]
[55]T174, L10-15
[56]T175, L15-19
48As a result, Ms Milonas gave evidence that she was distraught and almost collapsed. Ms McNulty is alleged to have told her not to take her things and simply leave the hospital premises. Mr Matthews was called, and he assisted her to collect her things and leave. Ms Milonas was asked about this at length in examination-in-chief but maintained this was her only interaction with Ms McNulty during the course of her investigation and her termination.[57]
[57]T180, L28-31; T182, L3-17
49In contrast, the Defendant painted a vastly different picture of the investigation and ultimate termination. This commences with Ms McNulty’s evidence. She was the director of support services at Monash from 2011 and continues in that role until today. In this role, she manages the food services unit in which Mr Matthews directly reported to her, and he, in turn, had direct management of Mr Sharma and Ms Milonas.[58] Prior to this role, she had worked at Northern Health as director of facilities management for 12 years.[59] She gave evidence that, after receipt of the anonymous letters, she commenced an investigation, which was to look at HR files and timesheets, and a few other things.[60] She did that in concert with the HR department.[61] On her evidence, Mr Matthews was spoken to about his knowledge and involvement and he, in turn, was tasked with asking Mr Sharma about the events.[62] The information from Mr Sharma was in regard to the existence of the alleged agreement with Ms Unicomb.[63] At that point, Ms McNulty called Ms Unicomb and discussed the matter with her. She followed that up with an email seeking confirmation of their discussion. That email asked Ms Unicomb as to what she recalled of the alleged agreement. Ms Unicomb’s response has already been referred to, but, in summary, she stated she did not recall the meeting, but would not have agreed to the terms of the alleged agreement if they had been suggested. Ms McNulty gave evidence that she then called Ms Milonas and told her about the allegations.[64] Her evidence was, that around 8 May 2013, the investigation took on a more formal bent.[65] Around 14 May 2013, Ms McNulty decided to set up a formal meeting with Ms Milonas.[66] She sent a meeting invite which set the meeting for 16 May 2013.[67] I find that is strong evidence to support the fact that a meeting was held on 16 May 2013, because the invitation was addressed to Ryan Willmott and he gave evidence that he received the invitation and prepared documents for it.[68]
[58]T905, L21
[59]T905, L28
[60]T907, L27-31
[61]T908, L14-15
[62]T912, L3
[63]T912, L6-8
[64]T939, L17-19
[65]T939 – T940; T941, L21
[66]T942, L31
[67]T943, L10-L12; Exhibit D22
[68] T1123
50Letters were also drafted by Ms McNulty and Mr Willmott in accordance with what Ms McNulty referred to as standard templates.[69] The letter is dated 14 May 2013. The letter identified, in summary form, the allegations and an investigation guide was attached, outlining the process to be followed; a further document providing information on frequently asked questions about investigations; and a document outlining the principles that guided the investigations – including the principle of natural justice. It also invited Ms Milonas to bring a person to the meeting and identified that the meeting was to occur on 16 May 2013 at 2.00pm. Ms McNulty gave evidence that she handed the letter and the attachment to Ms Milonas on 14 May 2013.[70]
[69]Exhibit D22 and T943, L117-19
[70]T945, L11-18
51Mr Sharma’s evidence is of some use in establishing whether the letter and attachments of 14 May 2013 were sent to Ms Milonas. He gave evidence that he was interviewed on 16 May 2013.[71] At that time, he knew Monash had already begun investigating these matters. This is some slight evidence to support the fact there was a degree of preparation and planning prior to the meetings conducted with Ms Milonas and Mr Sharma on 16 May 2013. By implication, this suggests that there were also similar meetings and preparation for a meeting with Ms Milonas on 16 May 2013.
[71]T555 L7; he gave evidence he couldn’t recall the date of the meeting however he recalled the occurrence of the meeting; see T556 - 558
52Overall, I find that the evidence of Ms McNulty on this point must be preferred to that of Ms Milonas. This is because of the documentary evidence and its consistency with the oral evidence of both Ms McNulty and Mr Wilmott. I find that Ms McNulty telephoned Ms Milonas on 6 May 2013 and informed her of the allegations contained in the anonymous letter. Then, after consultations with her executive director, the investigation took on a more formal bearing. In combination with Mr Willmott, documents and attachments were provided by Ms McNulty to Ms Milonas on 14 May 2013. These documents provided a summary of the allegations and set out the processes, and principles informing the investigation and set a meeting time of 16 May 2013. I come to these findings, not only because of the acceptance of the evidence given by Ms McNulty, but because it is also consistent with the documentary evidence. It is true there is no file note of the telephone conversation of 6 May 2013, however the letters of 14 May 2013 and the meeting invitation, support the proposition of a formal process being embarked upon sometime previously. Similarly, the fact that Mr Willmott was involved in preparing the template documents suggests and supports the fact that a standardised process was being followed and had been on foot. This process called for 48 hours to have elapsed between notification of the investigation and the first interview.[72] The calendar invite to Mr Willmott also supports Ms McNulty’s version of events. It concludes with the words “Please send me through the relevant letter and I will get it to her today”.[73] Mr Willmott did prepare the template letter and sent it in an email dated 14 May 2013 at 12.03pm.[74] This is a contemporaneous recording of Ms McNulty’s intention and is strong evidence in support of Ms McNulty’s evidence, and my finding that the letter and attachments were handed to Ms Milonas on 14 May 2013. The other point which emerges from these emails and the calendar invitation, was that the documents generated by Ms McNulty needed to have the date and time for the meeting inserted.[75] Given Ms McNulty sent the calendar invite, it is logical she set the meeting time and customised the draft letter sent to Mr Willmott on 14 May 2013 at 12.03pm. Having gone to all that trouble and expressing her intention to hand the letter to Ms Milonas, cognizant of the need for forty-eight hours’ notice before the meeting, I find this is strong evidence in favour of my finding that she then handed the letter and attachments to Ms Milonas on 14 May 2013.
[72]T945, L17-18; Exhibit D22; DCB 694
[73] DCB 694
[74]DCB 693
[75]T1122, L32- T1123, L1-2
53Turning, then, to the issue of whether a meeting on 16 May 2013 occurred. It will be recalled that, on Ms Milonas’ evidence, no such meeting occurred. This must be rejected. I reject it because of the evidence of Ms McNulty and Mr Willmott, who both gave evidence that they attended such a meeting. This is amply supported by the contemporaneous documents I have referred to above. If necessary, there is also a document titled “Record of Interview” which records the fact of a meeting occurring between Ms Milonas, Ms McNulty and Mr Willmott.[76] There was extensive cross examination of Ms McNulty and Mr Willmott as to the content of this document and whether it was accurate, but they were not challenged as to the fact that, on its face, it recorded a meeting on 16 May 2013 between the three of them. I find, accordingly, that a meeting did so occur.
[76]DCB 88
54Having made that finding, I now turn to an examination of the content of that meeting. It will be recalled that Ms Milonas denied such a meeting ever occurred. Mr Willmott gave evidence that the Record of Interview was an accurate, contemporaneous note that he prepared.[77] Ms McNulty gave slightly different evidence, which was that she may have added material to the Record of Interview but, overall, she was content with the accuracy of the Record of Interview.[78]
[77]T1124, L26-27; T1125, L8, T1125, L15-L16
[78]T946, L21-30
55A sustained attack was made by Plaintiff’s counsel on the accuracy of the Record of Interview. First, it was said that it was not signed by anyone, despite it having a signing pane, and this undermined its authenticity or veracity. Next, the evidence of Mr Sharma was called in aid. His evidence was that the Record of Interview about his meeting (which was separately recorded in another document) was wholly incorrect. He gave evidence that most of the matters in his Record of Interview note were simply not discussed with him, or, if they were, then the recording of issue was incorrect. By implication, Plaintiff’s counsel asserted the Record of Interview of the meeting with Ms Milonas, was similarly incorrect.
56In particular, the Plaintiff’s Counsel focused his attack on the failure of the Record of Interview to note the evidence of Mr Sharma that the terms of the alleged agreement were his idea, and that that there was no formal acceptance by Ms Unicomb but rather no visible disagreement.[79] The Plaintiff’s case was that the failure of Ms McNulty and Mr Wilmott to appreciate this evidence meant that they closed their minds to the reality that Ms Milonas had done nothing wrong other than to follow her manager’s instruction.[80] The first thing to note about this argument is that it proceeded on a version of events which was in contest and arguably only very lately presented by Mr Sharma. It will be recalled that the evidence of Ms Milonas was to the effect that she participated in the meeting with Ms Unicomb and the terms of the agreement were discussed.[81] This is not in accordance with Mr Sharma’s evidence that he struck the alleged agreement with Ms Unicomb who stayed silent. Next it is also contradicted by Mr Sharma’s evidence in an Affidavit he swore on 1 August 2022 in which he stated:
“During this meeting, it was discussed that Vivian would lose approximately 20% of her pay if she accepted this new position due to the classification of the role within Monash Health’s employment model. It was verbally agreed between the three of us present, Vivian, Denese and myself, that her pay would remain unchanged and she should continue receiving her afternoon shift penalties. This was to be achieved by Vivian continuing to complete her timesheets the way she had previously been doing so, reflecting afternoon hours worked, even though her hours were changing.”[82]
[79]T978 – T979; Plaintiff’s submissions dated 28 October 2022 at paragraph [19] relying on T445, L24 -T446, L17
[80]Plaintiff’s submissions dated 28 October 2022 at [13] - [18]
[81]T160, L8 - T164, L15; particularly T160, L24-31; see also Exhibit D9, Interrogatories of the Defendant and Answers of the Plaintiff at the answer to interrogatory at [3(a)]
[82] Affidavit of Arvind Sharma sworn on 1 August 2022, at paragraph [10]
57I find that Mr Sharma’s evidence as between his Affidavit sworn only months before trial stands in contradiction to the evidence given by him in the witness box. There is contradiction in both the alleged fact of the 3 parties having a discussion about the terms of the alleged agreement and then about the alleged fact of Ms Unicomb’s acceptance (rather than simple silence) of the alleged agreement. All these matters tell against the occurrence of the alleged meeting with Ms Unicomb and support my finding that there was no alleged agreement. It also means that the Record of Interview is not undermined by reason of it not recording the evidence Mr Sharma gave in the witness box. I find that was only a lately breaking version of events and was never presented to Ms McNulty and Mr Willmott.
58Counsel pointed to the fact that neither Ms Milonas, nor Mr Sharma, were given their Records of Interview to sign or check. Next, that it was framed in language which predetermined issues which, in reality was an assertion that the Record of Interview was a self-serving document designed, not to accurately record matters, but really to support a predetermined outcome, being a finding of fraud against Ms Milonas.
59I consider that Ms McNulty gave truthful and accurate evidence. Her evidence was consistent with the contemporaneous records. She was clearly knowledgeable and experienced in her area of operation at Monash. She spoke knowledgably about pay rates and classifications and gave an entirely rational explanation as to why salaries varied between shift work and non-shift positions. On the point in which she was probed about the accuracy of the Record of Interview, she conceded that the process, at the time employed by Monash Health, may not have been as robust as it could have been. This was to her credit. Overall, I consider her to be a witness of truth.
60Mr Willmott, I consider to have been less experienced at the time of conducting the investigation of Ms Milonas than Ms McNulty. However, in evidence, he tried to assist and, under close examination about the notetaking reproduced in the Record of Interview, was firm that it was an accurate record. He conceded matters such as his limits of knowledge as to applicable legal standards, such as Briginshaw, which demonstrated that he was willing to accept the limitations of his expertise and concede that he did not have all the answers. This stands to his credit. I accept he was a witness of truth.
61I have previously commented on the evidence given by Mr Sharma and Ms Milonas. In considering the veracity of the Record of Interview prepared for Ms Milonas, I find it does accurately record the content and conduct of that meeting. When pressed repeatedly by Plaintiff’s counsel on the accuracy of the document, Ms McNulty was adamant that it was accurate. She was unwavering in this. Mr Willmott, similarly, was of the view it was accurate and accorded with his memory. I accept that evidence of both of these witnesses, who were challenged in a prolonged, searching manner on this topic. I find then, that on 16 May 2013, Ms Milonas, Ms McNulty and Mr Willmott had a meeting to discuss the matters related to the alleged agreement, and a variety of other matters, as set out in the 14 May 2013 letter and attachments Ms McNulty had handed to Ms Milonas.
62Having made those findings, I now turn to consider the events of 20 May 2013. I have set out the Plaintiff’s recollection of this meeting. Essentially, it was to the effect there was no meeting but, rather, there was a confrontation in a corridor, at which time Ms McNulty simply told Ms Milonas to “get out”[83] of the hospital. Both Ms McNulty and Mr Willmott gave a completely different version of events. In particular, they nominated the fact that another party was present during the conduct of the meeting, namely Ms Pauline Fegan. It was only after some cross-examination that it was finally wrung out of Ms Milonas that, in fact, the meeting did not occur in the corridor, but was in a room, and Ms Fegan was actually present. Overall, the evidence of Ms Willmott and Ms McNulty must be accepted in preference to that of the Plaintiff. I have set out above my reasons for accepting them as witnesses of truth and why the Plaintiff’s evidence on the whole cannot be accepted. The fact that Ms Fegan, a representative from the Health Services Administration and Arbitration organisation was present, also indicates, strongly, the following factors. First, that Ms Milonas had advance notice of the meeting of 20 May 2013 occurring. This reinforces my finding above, that the letter and attachments were handed to her on 14 May 2013 and that the meeting on 16 May 2013 did occur. Second, the fact that serious allegations had been raised with Ms Milonas prior to 20 May 2013, was made known to her, given Ms Fegan was present. Third, Ms Milonas’ earlier statements in evidence that no-one else was permitted into the meeting on 20 May 2013 can be seen as wholly incorrect. These matters weigh against the acceptance of Ms Milonas’ evidence as to what occurred on 20 May 2013. In addition, the meeting notes are a contemporaneous record which both Mr Willmott and Ms McNulty swore in evidence were an accurate record of the matters discussed. Furthermore, Ms McNulty gave evidence that she had direct recollection of this meeting. When pressed as to how that could be possible some nine years after the event, she gave a rational explanation that it was not a pleasant experience terminating a long-serving employee, who had given good service to the organisation. That explanation has a ring of truth about it and, in combination with the contemporaneous recording of the matters, as set out in the record of meeting, I find, in accordance with it, that those matters did occur. Specifically, I find that, at the meeting on 20 May 2013, Ms Fegan was present as a representative of Ms Milonas. I find that the meeting occurred in Ms McNulty’s office with Ms Fegan, Ms Milonas, Ms McNulty and Mr Willmott. I find that Ms Milonas did not present any further evidence to support the alleged agreement or to deal with the allegations made against her. I find that Ms McNulty and Mr Willmott explained to Ms Milonas the findings of their investigations, and the fact that they considered timesheet fraud had occurred. I find they informed her, at that time, that she would be terminated for serious and wilful misconduct based on the timesheet fraud. I find that they applied the balance of probabilities to the Briginshaw standard in making their assessment. As a result of this, Ms Milonas was visibly upset and Mr Alfred Matthews was called to come and collect her. He did so and she was escorted to her office. In fact, this is a further matter which tells against acceptance of the Plaintiff’s evidence. Mr Matthews’ evidence was that he escorted Ms Milonas to her office to collect her things. He said this was done in an unhurried manner and he gave her what time she needed. This stands in contrast to the Plaintiff’s evidence, which was that she was told to get out and could not even collect her things. In making the above findings, I take into account the evidence of Associate Professor Varma, which I have previously referred to, which is that the Plaintiff has become fixated on her alleged agreement. At times, she has difficulty answering questions. However, the evidence given by Ms Milonas on this point, was clear and completely divergent from the evidence of all other witnesses and the contemporaneous notes. I cannot accept it and I reject her version of events.
[83] T419, L27-28
63Having made those factual findings, I now turn to examine the legal issues the parties are in dispute about.
The investigation and termination – does a duty of care exist?
64The Plaintiff framed the issue in the following way in her submissions:
[Did the Defendant owe a] duty of care to provide a safe system of work in the undertaking of the investigation into alleged misconduct by the Plaintiff”.[84]
[84]Plaintiff’s Submissions dated 28 October 2022, at paragraph [45]
65The Second Amended Statement of Claim is silent as to a more specific formulation of the duty of care allegedly owed by the Defendant.
66The Defendant denies a duty of care exists as submitted by the Plaintiff.
67This point can be dealt with briefly as I am bound by numerous decisions of superior Courts. These decisions are State of NSW v Paige (2002) 60 NSWLR 371 (“Paige”) at [78]; Shaw v State of NSW [2012] NSWCA 102 (“Shaw”) at [122] – [127]; and Govier v The Uniting Church in Australia Property Trust (Q) [2017] QCA 12 (“Govier”). In each of those matters, the Court considered the imposition of a duty of care as proposed by the Plaintiff would require an impermissible extension of the duty owed by an employer to cover the area of the investigation of potential disciplinary matters. To get around those holdings the Plaintiff submitted that Paige and Shaw were cases that involved teachers subject to very specific statutory and industrial regimes in NSW. In that circumstance, the Plaintiff submitted those cases were distinguishable on the facts to this case and did not bind this Court. I reject that submission. When regard is had to Spigelman CJ’s remarks in Paige at [78] in particular it can be seen that His Honour was there dealing with a formulation of the duty of care in its broadest sense, and not hinging on any particular link to the fact the worker there was a teacher in NSW. The reasoning and holding the Chief Justice then goes on to make is an exposition of principle with application to imposition of a novel duty of care in the employment context broadly.
68Next the Plaintiff submitted that Govier ought not be followed given there was a grant of special leave to the High Court and its holding could not be relied upon. I reject that argument. The decision of the Queensland Court of Appeal remains an extant decision of a superior common law Court of Appeal in Australia.[85] I am bound to apply it until it is overturned. Furthermore, in Govier the worker was a personal carer and not a NSW teacher, as in Paige and Shaw. The Queensland Court of Appeal applied Paige which supports the fact that Paige should not be limited to its facts as submitted by the Plaintiff. It supports my finding as to the general application of the holding in Paige, at [78] of Spigelman CJ’s reasons, as to whether a novel duty of care should be applied in this proceeding.[86]
[85] Farah Constructions Pty Ltd & Ors v Say-Dee Pty Ltd (2007) 230 CLR 89
[86]Govier v The Uniting Church in Australia Property Trust (Q) [2017] QCA at [77]
69For these reasons I consider I am bound by authority. I find there is no duty of care as submitted by the Plaintiff on the facts of this case.
70Even if the decisions of Paige and Govier were to be distinguished from the proceeding at hand, I would still find that a duty of care expressed in the terms proposed by the Plaintiff should not be imposed on the facts of this case. This is primarily because to do so would offend the principles expressed in Sullivan v Moody as to the incompatibility of the alleged duty with other duties owed by the Defendant.[87] The Plaintiff’s claim here is that she was injured by the failure to properly investigate resulting in her termination. At once it can be seen that there is an intersection with employment law in the field of unfair dismissal. To apply the law of negligence to resolve this dispute would result in the application of new principles in an established field of law. I refer to the summation of the law on this point in Paige as set out by Spigelman CJ at [132] to [155] in which His Honour sets out the relevant legal issues of incoherence with employment law. It follows that if Parliament intended for such issues to be determined by employment law tribunals and decision makers, it would be incoherent with principles of employment law for other Courts to interfere with the intended source of this decision making power by the imposition of a duty of care in tort.
[87] (2001) 207 CLR 562 (“Sullivan”) at [55]
71There would also be a further conflict, between the objectives of the Health Services Act 1988 (Vic),[88] that public hospitals are governed and managed effectively, efficiently and economically,[89] and the proposed duty to provide a safe system of work in undertaking workplace investigations. For example, the Defendant would find itself in a position of conflict were it to be faced with prima facie evidence of fraud, and then be required to expend funds to undertake certain investigative and disciplinary procedures to the standard submitted by the Plaintiff before reaching a decision to terminated. In Sullivan, the Court pointed out that such a situation of conflict ordinarily ought be avoided.[90] This tells against the imposition of duty as submitted by the Plaintiff.
[88] Monash Health is established pursuant to the Health Services Act 1988, see s 239 and Schedule 5
[89] Health Services Act 1988 (Vic), s9(ba)
[90] Sullivan at [59]
72On a narrower ground I would also find against the Plaintiff’s submission that a duty of care ought be imposed on the basis that neither in the pleadings or in submission did the Plaintiff adequately identify the duty of care with the specificity required.[91]
[91]Irving & Ors v Kleinman [2005] NSWCA 116 at [31]
73Alternatively, even if a duty of care was imposed in the terms sought by the Plaintiff I find the Plaintiff cannot make good her case that there has been a breach of the duty. This is because the investigation accorded with the principles of natural justice: there was notification of the allegations both orally and in writing on 14 May 2013 when Ms McNulty handed the letter and attachments to Ms Milonas;[92] there was notice of the procedure to be followed by the provision of documents in that bundle;[93] there was a meeting on 16 May 2013 when Ms Milonas was asked for her version and to provide any materials.[94] As a corollary there was investigation of the HR file[95] and witnesses Mathews, Unicomb and Sharma. Then there was a further meeting with an independent person present, Ms Fegan.[96] At that time further information was requested from Ms Milonas and with none forthcoming she was terminated. These steps are in my judgment sufficient, in the circumstances, to afford procedural fairness to the Plaintiff.
[92] DCB 82-83
[93] DCB 84-87
[94] DCB 88089
[95] T907, L27-31; DCB 683
[96]DCB 91; I make it plain that I do not place any weight on the email at DCB 110 from Ms McNulty outlining the discussion she had with Ms Fegan – this is clearly hearsay
74As to the Plaintiff’s claim that procedural fairness was not afforded to the Plaintiff based on the analysis of Dr Webster, I find that Dr. Webster’s opinion could not be accepted given that she based her opinion on an incorrect factual basis namely, the way the investigation was conducted and how the termination occurred. Examples of this are the fact that Dr Webster based her opinion on the fact that the letter of 14 May 2013 was never provided to Ms Milonas, that the meeting of 16 May 2013 occurred with no notice and that the Plaintiff was refused entry to the meeting of 20 May 2013. These are substantially different facts to those which I have found existed. This renders the opinion of Dr Webster, as to whether the treatment Ms Milonas was subjected to was procedurally fair, of no use.
75The requirements of procedural fairness vary depending on the context.[97] In this circumstance I find that the requirements of procedural fairness required no more than what was done by the Defendant.
[97] Kioa v West (1985) 159 CLR 550
76I further make the point that even if the Defendant had acted in a manner consistent with what the Plaintiff contends would have amounted to procedural fairness, the Plaintiff has not demonstrated how this would have led to a different outcome. As will be apparent from my findings above after a full court hearing, I find the Plaintiff had improperly enriched herself. Flowing from this finding, if after the investigative processes the Plaintiff contends occurred in May 2013, the outcome would have been similar to my finding; that is the Plaintiff would have been dismissed.
Incorporation of terms into the Plaintiff’s employment contract
77The Plaintiff submitted that the following documents were incorporated into Ms Milonas’ employment contract:
· the Employees’ Code of Conduct (“the Code”);[98]
· Enterprise Agreement Cl 125.6, Cl 77.5.1.[99]
[98]Plaintiff’s submissions dated 28 October 2022 at paragraphs [29] – [32]
[99] Plaintiff’s submissions dated 28 October 2022 at paragraph [33]
78No written contract of employment was in evidence before the Court.
79Given my findings as to the alleged agreement above, no such terms could have been incorporated into the Plaintiff’s employment contract in regard to how she was to fill out her time sheets.
80Turning to assess the alleged incorporation of the Employees’ Code of Conduct into the Plaintiff’s contract. In accordance with the principles in Lloyd v Healthscope Operations Pty Ltd [2021] VSCA 327 at [90], for there to be such incorporation of the Code, 3 questions must be asked. Each of the questions I find must be answered in the negative, meaning that the Code cannot be incorporated into the contract of employment. Dealing with each question in turn.
81First, whether the Code was incorporated into the contract by express reference. It must be noted that the Code only came into existence after Ms Milonas’ employment. There is no evidence of any express reference to the Code being incorporated into her employment contract at any time after it came into existence. Ms Milonas gave evidence that she had never seen the Code before this litigation.[100] It cannot be concluded on the balance of probabilities that there was an incorporation by express reference.
[100]T162, L11 – T163, L23
82Second: could it be objectively concluded that the parties intended the Code to form part of the employment contract? There is no evidence of any such intention from either the Plaintiff or the Defendant. As recorded above, Ms Milonas had no knowledge of the Code prior to this litigation. The evidence of the management, Mr Sharma, Mr Mathews and Ms McNulty, does not provide any basis to find there was such intention on the part of Monash Health that the Code was to be incorporated.[101] The Plaintiff argued that the terms were incorporated by implication as the Defendant referred to them during the investigation process.[102] This is insufficient to conclude that the terms were incorporated; this is because the Plaintiff needed to accept that the terms were incorporated and in her evidence, she made it clear she did not know of the existence of the documents until after the litigation began. The second question must be answered in the negative.
[101]The Plaintiff’s submissions dated 28 October 2022 at [32] only argue for an implication of the Code by reference to Lloyd v Healthscope Operations Pty Ltd [2021] VSCA 327 at [90] similar to the Defendant but cite no evidence as to the intention expressed by either party for the Code to be incorporated
[102] Plaintiff’s submissions in reply dated 7 November 2022, at paragraph [6]-[7]
83Third: if the document was part of the contract, could it be objectively concluded that the parties intended the relevant part of the document to have contractual effect? I have set out above why the Code was not incorporated into the contract of employment: there is no factual basis to support the finding that there was intention to have such terms incorporated into the contract. Similarly, this question must be answered in the negative for the same reason: there is no factual basis to conclude that the parties intended the nominated parts of Code were to be part of the employment contract. The Plaintiff referred to no evidence in her submissions to support the assertion that it should be concluded that the parties intended the nominated parts of the Code should be incorporated into the employment contract. On the facts of this matter the Plaintiff’s argument fails.
84Turning then to the argument that the Enterprise Agreement (“the EA”) ought be incorporated into the employment contract. Ms Milonas alleges that if it was, then she was bound to be afforded procedural fairness.[103] I reject the argument that the terms of the EA, particularly clauses 125.6 and 77.5.1.are incorporated into the employment contract. I do so applying the principle enunciated in the High Court in Byrne that is only necessary to imply a term in the form of these clauses to ensure the reasonable and effective operation of the contract.[104] These clauses are not necessary for the reasonable and effective operation of the contract. This is because her rights as to the investigation and termination are governed by relevant industrial instruments which set out the relevant process.
[103]Plaintiff’s submissions dated 28 October 2022 at [33]
[104]Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 422
85It is not necessary to go further however, it will be apparent from the factual findings above that I find there has been serious and wilful misconduct by reason of the timesheet fraud. In that event, and if the EA was incorporated into the employment contract, the grounds for summary dismissal are well made out pursuant to clause 125.5 of the EA. That was a process Monash Health was entitled to take.
86These findings and the result make it unnecessary to consider the issue of whether damages flow from the alleged breach of the terms; as the Plaintiff argued should be implied into the employment contract from either the Code or the EA. Specifically I do not need to determine the debate between the parties as to the applicability of Goldman Sachs JB Were Services v Nikolich[105] and Baltic Shipping Company v Dillon[106] or Aldersea v Public Transport Corporation.[107]
[105] [2007] FCAFC 120
[106] (1993) 176 CLR 344
[107] (2001) 3 VR 499
Conclusion
87In summary I will dismiss the Plaintiff’s case on the following bases:
a)I find there was no meeting with Mr Sharma, Ms Unicomb and Ms Milonas to discuss the alleged agreement;
b)I find there was no alleged agreement;
c)I find the conduct of Ms Milonas in writing timesheets from 2007 to 2013 for hours she did not work constituted timesheet fraud which is serious and wilful misconduct;
d)There is no duty of care which arises in the form identified by the Plaintiff[108] by reason of the decisions in Paige, Shaw and Govier;
e)Even if there was a duty of care capable of being imposed it should not be imposed given the failure to properly plead and particularise that duty and its content;
f)Alternatively, if a duty of care was imposed of the kind argued for by the Plaintiff, that duty was discharged by reason of the investigation and termination of the Plaintiff carried out by Monash given:
i.the acceptance of the evidence of Ms McNulty and Mr Wilmott;
ii.the rejection of the evidence of Ms Milonas as to what had occurred;
iii.the factual finding that Ms Milonas had engaged in serious and wilful misconduct entitling Monash to summarily dismiss the Plaintiff;
[108]Plaintiff’s submissions dated 28 October 2022 at paragraph [45]
(g) I find that the identified policies and procedures set out in the Code[109] cannot be incorporated into the employment contract between Ms Milonas and Monash on the evidence in this case;
(h)I find the EA, particularly clauses 125.6 and 77.5.1, cannot be incorporated into the employment contract between Ms Milonas and Monash on the evidence in this case and by reason of the application of principle in Byrne.
[109]Plaintiff’s submissions dated 28 October 2022 at paragraph [30] – [32]
88I will enter judgment for the Defendant. I will grant the parties 7 days to file orders in respect of costs. I note the issue of who is to pay the Defendants costs for 13 October 2021 remains reserved. Proposed orders as to whether the Plaintiff, Plaintiff’s Senior Counsel or the Plaintiff’s solicitors ought pay those costs should also be provided. In the event that no agreement can be reached the matter will be listed for further hearing on 23 January 2023.
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