Mishra v Monash Health
[2022] FedCFamC2G 240
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mishra v Monash Health [2022] FedCFamC2G 240
File number(s): MLG 370 of 2021 Judgment of: JUDGE MCNAB Date of judgment: 5 April 2022 Catchwords: INDUSTRIAL LAW – FAIR WORK – adverse action – whether putting was adverse action – stand down from employment – dismissal – whether investigation of allegations of misconduct so defective that the Court should find the reverse onus under section 361 of the Fair Work Act has not be discharged – breach of enterprise agreement. Legislation: Fair Work Act 2009 (Cth) ss 50, 323(1), 340(1), 342, 352, 546(1).
Victorian Public Health Sector (Health And Allied Services, Managers And Administrative Workers) Single Interest Enterprise Agreement 2016-2020 cl 25.1.
Cases cited: Australian and International PilotsAssociation v Qantas Airways Ltd [2006] FCA 1441.
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32.
Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17.
Green v Preston Motors Pty Ltd[2022] FedCFamC2G 205.
Jones v Queensland Tertiary Admissions Centre (No.2) [2010] FCA 399; (2010) 196 IR 241.
Khiani v Australian Bureau of Statistics[2011] FCAFC 109.
Musgrove v Murrayland Fruit Juices Pty Ltd (1980) 47 FLR 156.
Police Federation of Australia v Nixon[2008] FCA 467; (2008) 168 FCR 340.
Roberts v General Motors-Holden's Employees' Canteen Society Inc (1975) 25 FLR 415.
State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184.
The Environmental Group Ltd v Bowd [2019] FCA 951
Division: Division 2 General Federal Law Number of paragraphs: 88 Date of last submission/s: 15 March 2022 Date of hearing: 7-9 February 2022 & 16 March 2022 Place: Melbourne Counsel for the Applicant: Mr G Lake Solicitor for the Applicant: Jewell Hancock Employment Lawyers Counsel for the Respondent: Mr J Tracey Solicitor for the Respondent: Victorian Government Solicitor’s Office ORDERS
MLG 370 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS TARAKUMARI MISHRA
Applicant
AND: MONASH HEALTH
Respondent
ORDER MADE BY:
JUDGE MCNAB
DATE OF ORDER:
5 APRIL 2022
THE COURT DECLARES THAT:
1.The Respondent has breached:
(a)clause 25.1 of the Victorian Public Health Sector (Health And Allied Services, Managers And Administrative Workers) Single Interest Enterprise Agreement 2016-2020; and
(b)section 50 and section 323(1) of the Fair Work Act 2009 (Cth) by not providing the Applicant with payment for her wages at least fortnightly for the period 28 September 2020 to 12 October 2020.
THE COURT ORDERS THAT:
2.The Applicant’s claims for breaches of section 340(1)(a)(ii) and 352 of the FW Act be dismissed.
3.The Applicant file any submission for the imposition of a pecuniary penalty and to whom it should be paid within 14 days.
4.The Respondent file any submission in response within 28 days.
5.The parties by their legal representatives confer for the purposes of seeking to reach an agreed position on penalty within 7 days.
6.The question of the imposition of any penalty be referred to His Honour Judge Blake and be determined on the papers.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge McNab
INTRODUCTION
By an application and statement of claim filed on 4 March 2021, Ms Mishra (“the Applicant”) claims that Monash Health (“the Respondent”) contravened the Fair Work Act 2009 (Cth) (“the FW Act”) pursuant to:
(a)section 340(1)(a)(ii) of the FW Act by taking adverse action of various kinds including the termination of her employment against her because she made complaints in relation to her employment; and
(b)section 352 of the FW Act by taking adverse action of various kinds against her because she was temporarily absent from work because of illness or injury, within the meaning of that section.
The Applicant also claims that the Respondent breached clause 25.1 of the Victorian Public Health Sector (Health And Allied Services, Managers And Administrative Workers) Single Interest Enterprise Agreement 2016-2020 (“the Enterprise Agreement”) by not paying her wages for a two week period.
The Respondent’s defence to the claim was that it did not contravene any of the relevant sections of the FW Act outlined above. The Respondent also purports that it did not breach the Enterprise Agreement by not paying wages to the Applicant for the alleged two-week period pursuant to section 50 and 323(1) of the FW Act, in circumstances where the Applicant did not actually perform work during those two weeks.
BACKGROUND
Factual Background
The Applicant commenced casual employment with the Respondent on 6 May 2013 as a Food Services Assistant at Dandenong Hospital.
The Applicant was also trained as a relief Menu Monitor and worked shifts as a Menu Monitor on a number of occasions at the Respondent. The role of a Menu Monitor involves coordinating patient meals orders and ensuring that patients do not receive menu items containing known allergens.
On or around 26 August 2019 the Applicant transferred to full-time employment by agreement (“the Full-Time Employment Agreement”).
There were terms of the Full-Time Employment Agreement, among others, that the Applicant:
(a)would perform the full-time role of Food Services Assistant;
(b)would be based at the Dandenong Hospital at 135 David Street, Dandenong, Victoria, 3175 (“the Dandenong Hospital”);
(c)would work 38 hours per week;
(d)would work ordinary hours of 6.30am to 3.00pm Monday to Friday;
(e)would receive a base salary of $48,386.00 per annum plus superannuation; and
(f)would work additional hours as directed.
The Applicant alleges that “her employment started to deteriorate” when Mr Matthews, a Support Service Manager commenced employment in 2018.
It is alleged by the Respondent that on 6 February 2020, the Applicant completed a menu order for a patient that included a ‘Tangy Mousse’, which contains citrus. The patient had a documented citrus allergy, and it is contended by the Respondent that this was brought to the Applicant’s attention by another Menu Monitor which was ignored by the Applicant, causing the other Menu Monitor to remove the menu so that the Tangy Mousse would not be served to the patient. The Applicant denies having had any conversations in relation to the matter with another Menu Monitor and denies filling out any menu card for the Citrus allergic patient which included Tangy Mousse.
The Respondent alleges that on 6 February 2020 the Applicant served soup to a different patient who was on a fish and shellfish free diet (“FSF diet”). Soup is not an approved menu item for patients on an FSF diet because it is produced in a kitchen where there is a risk of cross-contamination. The Respondent alleges that the Applicant allowed the same patient to order soup the following day on 7 February 2020, and the Menu Monitor who was working on 7 February 2020 subsequently removed soup from the patient’s menu so that it would not be served to them. The Applicant denied being responsible for this.
By the affidavit filed on 4 February 2022, bearing in mind that the Applicant filed her evidence in chief on 7 May 2021, the Applicant alleged that on 12 February 2020 she had a telephone conversation with Mr Matthews. During this conversation, the Applicant alleges that she told him that she would be making a WorkCover claim because her doctor had advised her to do so and that Mr Matthews had said words to the effect, “if you make a WorkCover claim, there will be trouble.” That evidence was denied by Mr Matthews in his evidence before the Court.
On around 13 February 2020, Mr Matthews became aware of the first allegation. After making initial enquires with the Applicant’s co-workers, he became aware of the second allegation.
Between 12 February 2020 and 24 March 2020, the Applicant was absent from the work due to illness pursuant to Certificates of Capacity that she provided to the Respondent.
On 14 February 2020 the Applicant lodged a WorkCover claim raising claims of bullying and harassment (“the First Employment Complaint”).
On 11 March 2020, on Mr Matthews’ advice, Ms McNulty the Director of Support Services at the Respondent, decided to stand the Applicant down on full pay and the Respondent asserts that they did so in light of the allegations and the potential risk to patient safety arising from the Applicant’s alleged conduct.
On 25 March 2020, Mr Matthews and Ms Burns, a Human Resource Business Partner in the People and Culture team at the Respondent, advised the Applicant that she would be stood down, pending an investigation into the allegations of misconduct. The Applicant was advised that she was required to attend a meeting on 27 March 2020 to respond to the allegations and that she could bring a support person with her to the meeting. Ms Burns handed the Applicant two letters:
(a)the first dated 25 March 2020 and titled “Re: Formal Investigation” which among other things, set out three allegations of misconduct against the Applicant; and
(b)the second dated 25 March 2020 and titled “Re: Notification of Stand Down” which, among other things, stated the Applicant was stood down from duties effective immediately pending an investigation into the allegations.
On 26 March 2020, the Applicant lodged a complaint about her treatment by Ms Burns and Mr Matthews during the course of the meeting of 25 March 2020. Whilst the Respondent considered that the complaint lacked substance, Ms McNulty and Ms Giles, Senior Manager in the People and Culture team at the Respondent, took responsibility for progressing the investigation. The Applicant also lodged a second WorkCover complaint in relation to her alleged treatment by Ms Burns and Mr Matthews on 25 March 2020 (“the Second Employment Complaint”).
On 4 June 2020, the Applicant made a further compliant via her lawyers at that time raising unfair shift allocations, adverse action, bullying and the swapping of shifts (“the Third Employment Complaint”).
A further WorkCover claim was lodged on 11 August 2020 raising bullying and harassment (“the Fourth Employment Complaint”).
Prior to the meeting scheduled for 27 March 2020, the Applicant took an extended period of personal leave and stated that she was not well enough to participate in the investigation.
On 26 September 2020, the Applicant provided the Respondent with a certificate stating that she was fit to return to work at a site away from the current conflict. Ms McNulty sought clarification as to the Applicant’s capacity to return to her normal duties and scheduled a meeting with the Applicant on 12 October 2020. The Respondent recommenced the Applicant’s suspension on full pay on 12 October 2020. The Applicant was not paid between 26 September 2020 and 12 October 2020.
The Applicant attended the meeting on 12 October 2020 with Ms McNulty and Ms Gay. The Applicant gave responses to the allegation raised in the first allegation letter. Evidence of those responses is set out at [41] of the Applicant’s affidavit sworn 7 May 2020: (see CB 43).
Following the meeting on 12 October 2020, Ms McNulty considered the Applicant’s response and made further enquiries. As a result of those enquiries, on 21 December 2020, Ms McNulty provided the Applicant with revised allegations in the following terms and invited her to provide a response:
On 6 February 2020, the Applicant completed an order for ‘Tangy Mousse’ for a patient who had a citrus allergy;
On 7 February 2020, when the first allegation was raised with the Applicant by another Menu Monitor, the Applicant did not verify the ingredients of a ‘Tangy Mousse’ and did not remove it from the patient’s order;
On 7 February 2020, the Applicant went to the kitchen, returned to the Menu Monitors office with a ‘Tangy Mousse’, opened it and ate it in front of another Menu Monitor; and
On 6 February 2020, the Applicant provided soup to a patient on a FSF diet. On the same day, the Applicant hand wrote ‘soup’ on the patient’s menu card for 7 February 2020.
The revised allegations clarified the correct dates for the allegations relating to the two incidents, alleging that the Applicant had engaged in the relevant conduct on 6 February 2020 and 7 February 2020, on both of which days the Applicant was working.
On 23 December 2020, the Applicant provided a written response to the allegations which response provided:
Here is my response to the latest revised allegation letter received from you received on 21/12/2020.
Allegation 1a
The menus for N3 were not completed by me. So, there is no chance of me filling in this menu. Below is my explanation for stating this:
There used to be 4 menu monitors but in December 2019, the food service manager at that time Mr. David Edward cut down one menu monitors shift 9.30am – 5.30pm and introduced a short shift 6.30am – 10.30am.
For the obvious reason, the 8 hours work could not be completed in 4 hours and all menu monitors could not complete as they already had their workload, and this added more.
It was agreed that whatever menus are incomplete that will be recorded in Handover Sheet. The menu monitor working next day was expected to start from left over menus of their allocated area/wards.
N3 was recorded as incomplete. So the menu monitor starting on 7 February 2020 was responsible to complete these.
Please not that I Have requested to provide Handover Sheet few times as it proves my claims of leaving this incomplete my work.
So, I deny this allegation.
Allegation 1b
I deny this allegation. This is a false and made-up story. Such an incident never took place.
Allegation 2
I deny this allegation, it is a false and made-up story. Such an incident never took place.
Allegation 3
I deny this allegation. The patient was not listed as allergic to fish and shellfish on IPIM Sheet.
Please note that All the Texture and allergy food are recorded in 1PM Sheet and the menus are filled in accordance with 1PM Sheet only. I have requested few times to provide 1PM Sheet as it could be easily verified much earlier. The alleged series of events (me altering or adding soup) never happened.
On 4 January 2021, Ms McNulty informed the Applicant by letter that the allegation had been found to be substantiated and to constitute serious misconduct and a breach of the Monash Health Code of Conduct and iCare Values, the Monash Health Guiding Principles. The letter stated that the Respondent was considering taking disciplinary action (up to and including termination of employment) and invited her to provide any information that she considered relevant by 6 January 2021 to allow the Respondent to consider the appropriate disciplinary outcome.
On 6 January 2021, the Applicant provided a further written response in which she continued to deny the allegations and call for the production of the Handover notes for the 6 February 2020 as she said this would establish that she had not completed the relevant menu order on 6 February 2020 and this would have been recorded in the handover sheet. The Applicant also raised in response to Allegation 2 (that on 7 February 2020 the Applicant had opened and eaten some of the Tangy Mousse) that she was a vegetarian and her religion prohibited her from eating a product such as the Tangy Mousse. She had previously said in written responses that the Allegation 2 was a fabrication.
On 8 January 2021, on the advice of Ms McNulty, Ms Dobroff, then the Acting Executive Director of Residential Care & Support Services/Chief Nursing and Midwifery Information Officer, approved the termination of the Applicant’s employment due to the substantiated finding of serious misconduct and the fact that the Applicant showed no remorse about her actions or insight into the seriousness of the matter. A document prepared by Ms McNulty and described as an ‘In Principle Termination Briefing and Approval Form’ (“the Briefing Note”) (see CB 243) was provided to Karen Lowe, the Executive Director People & Culture, Andrew Strip the Chief Executive, and Ms Dobroff, who was named as the decision maker. Because of the importance of this document to the case, I set out the body of the document:
Background and Summary
Following complaints received in relation to (the Applicant’s) work as a menu monitor which were a risk to patient safety, (the Applicant) was stood down on 25 May 2020 with full pay pending an investigation. The following four allegations were put to (the Applicant):
•Allegation 1 – on Thursday, 6 February 2020 (the Applicant) completed an order for a patient (Bed 18, Ward N3) that contained a Tangy Mousse. The patient had a citrus allergy which was noted on the patient’s menu card and on the iPM report.
•Allegation 2 – on 7 February 2020 when another Menu Monitor advised (the Applicant) that the patient had a citrus allergy and that she should not be providing Tangy Mousse she ignored her advice. It was further alleged that (the Applicant) did not verify the actual ingredients in the Tangy Mousse with the recipe folder (recipe book) which is accessible in the Menu Monitor office, nor did she remove the Tangy Mousse from the patient’s order.
•Allegation 3 – on 7 February 2020 following the discussion outlined in Allegation 2, she then proceeded to the main kitchen and returned to the Menu Monitors office with a serving of the Tangy Mousse and a spoon. It is further alleged that she proceeded to open it and eat it in the Menu Monitors office, making a statement using words to the effect of its tasted like mango.
•Allegation 4 – From 7 – 12 February 2020 that you provided soup to a patient (Bed 13, Ward SW3) Who Was on a Fish, Seafood Free (FSF) menu.
(the Applicant) subsequently lodged a WorkCover claim for stress and anxiety and was unable to respond to these allegations. She went from stand down with full pay to WorkCover. The WorkCover claim was subsequently rejected by the insurer and (the Applicant) lodged two further WorkCover claims between March and September which were also rejected by the insurer. During this time (the Applicant) continued to submit WorkCover certificates coding she was not well enough to return to work.
In late September 2019 (the Respondent) received a clearance certificate from (the Applicant’s) General Practitioner indicating she was fit to return to work in an area away from the current conflict and that she was fit to participate in the investigation and discuss the matter directly with (the Respondent). (The Applicant) recommenced her stand down with full pay pending the investigation early October 2020.
All four allegations have been largely substantiated by completing a thorough review of scanned menus, IPM report, Kronos timecards and credible witness statements.
(The Applicant) has changed her response to the allegations several times throughout the process despite strong evidence (IPM reports and scanned menu packs) to support these allegations. As a result, it has led us to believe that (the Applicant) cannot be trusted. She continues to deny any of the allegations, has not accept responsibility for her actions and has also shown no insight into the significance of her errors. (The Applicant) has demonstrated an inability to understand the significance of the role she has in ensuring a clinically safe food service provision for all patients. She has neglected to identify the subsequent consequences of such behaviour, despite completing all require training in these areas. Given these demonstrated behaviours we have no confidence in her ability to follow reasonable direction to ensure the safety of (the Respondent’s) patients. (The Applicant’s) lack of acknowledgement of her inappropriate behaviour provides us with no confidence that further coaching or training would change her behaviour.
Since the original incident in February 2020 (the Applicant) has continued to contact (the Respondent) both individually, through her husband who also works for (the Respondent) and via lawyers making serious claims of harassment, bullying and discrimination towards her. She has not provided enough evidence or details for (the Respondent) to complete any reasonable investigations into these matters despite numerous requests from (the Respondent) for detailed information in relation to any of these claims.
We consider the employment relationship to no longer be viable or productive and irretrievably broken down and as such recommend (the Applicant’s) employment be terminated, without notice, for serious misconduct. Please note, that it is highly likely that (the Applicant) will challenge this decision at Fair Work however, given her lack of acknowledgement of her inappropriate behaviour and the impact on providing safe care for (the Respondent) patients we do not consider there is any other option.
The Applicant’s employment was thereafter terminated without notice for serious misconduct effective on 13 January 2021.
APPLICANT’S CLAIMS AND EVIDENCE
At the final hearing, the Applicant gave oral evidence before the Court on 7 February 2022. The Applicant relied on her affidavits filed on 7 May 2021, 23 July 2021, 18 November 2021, 7 January 2022, 1 February 2022 and 4 February 2022.
Alleged Adverse Actions and Breach of Enterprise Agreement.
The Applicant alleges four adverse actions which are said to have been taken by the Respondent as set out below:
(a)the making of the allegations;
(b)the suspension;
(c)the making of the revised allegations; and
(d)the dismissal.
The Applicant claims that each of the above four alleged adverse actions were taken against her for the reason, or for reasons including, her exercising the following workplace rights:
(a)her right to lodge a WorkCover claim, which she did on three occasions:
(i)on 14 February 2020 (‘the First WorkCover Claim’);
(ii)on 26 March 2020 (‘the Second WorkCover Claim’); and
(iii)on 11 August 2020 (‘the Third WorkCover Claim’),
(collectively, “the WorkCover claim”),
(b)her right to make a complaint or enquiry in relation to her employment, which she did on four occasions:
(i)on 14 February 2020 when she complained in the First WorkCover Claim of (amongst other things) bullying and harassment that occurred on 12 February 2020 (‘the First Employment Complaint’);
(ii)on 26 March 2020 when she complained in the Second WorkCover Claim of (amongst other things) harassment and work related stress (‘the Second Employment Complaint’);
(iii)on 4 June 2020 in an email from her then solicitors to the Respondent complaining about (amongst other things) unfair shift allegations, adverse action and intimidation (‘the Third Employment Complaint’);[1] and
[1] CB 88.
(A)on 11 August 2020 when she complained in the Third WorkCover Claim of (amongst other things) bullying (“the Fourth Employment Complaint”),
(collectively, “the Complaints”); and
(c)her right to take personal leave, which she took in two periods:
(i)from 12 February to 24 March 2020 (‘the First Personal Leave’); and
(ii)from 25 March to 25 September 2020 (‘the Second Personal Leave’),
(collectively, “the Personal Leave”),
(and all collectively, “the Workplace Rights”).
RESPONDENT’S RESPONSE AND EVIDENCE
The Respondent accepts that the dismissal of the Applicant constitutes adverse action within the meaning of section 342 of the FW Act. The Respondent disputes that making the allegations, the stand down and making the second allegations were adverse action.
At the final hearing, the Respondent called Ms Dobroff, Ms McNulty, Mr Strip, Ms Lowe, Ms Giles, Mr Matthews and Ms Burns to give oral evidence before the Court on 7 & 8 December 2022.
In particular, Ms Dobroff who was the person who made the decision to terminate the Applicant’s employment gave evidence that she did not take adverse action against the Applicant (which adverse action includes termination of employment) because the Applicant had made a WorkCover claim, made in employment complaint, took personal leave and/or because she had a mental disability and/or was temporarily absent from work due to an illness or injury. At [11] of her affidavit sworn 18 June 2021 she stated:
I decided that (the Applicant’s) employment should be terminated because of her misconduct. I was concerned about the impact of her conduct on patient health and safety. I regarded the position of menu monitored to be very important in ensuring that patients with known allergies are not provided with meals containing allergens. I also considered that (the Applicant) did not take accountability for her actions and did not show any insight into her conduct.
Each of the witnesses called on behalf of the Respondent similarly stated that the reasons for any action they took including in relation to the making of allegations, investigation of the Applicant’s conduct, the stand down of employment the termination of employment were not because:
(a)the Applicant had made a WorkCover claim;
(b)made an employment complaint;
(c)took personal leave and/or because she had a mental disability; and/or
(d)was temporarily absent from work due to an illness or injury.
The Evidence of Ms McNulty
The Applicant in her presentation of the case in the final hearing and in the written submissions filed in Court focus their attention on the conduct of Ms McNulty who holds the role of Director of Support Services at the Respondent. Ms McNulty is responsible for the delivery of a range of services to patients of the Respondent including food services. In her affidavit of 18 June 2021, she states that in around February and March 2020 she became aware of concerns about the Applicant through reports from other menu monitors. There were allegations that on two occasions the Applicant had provided a patient or had intended to provide a patient with a menu item to which they had known allergies. Ms McNulty states that she considered it necessary to properly investigate those type of allegations given the potential risk to patient health and safety which may arise from patients with known allergies being provided with food containing allergens.
Ms McNulty gives evidence that on 11 March 2020 she decided to stand the Applicant down as she considered that an appropriate course of action given the nature of the allegations and the potential risk to patients if the conduct alleged in the allegations continued.
On 25 March 2020, the Applicant was advised of the allegations at a meeting with Mr Matthews, and Ms Burns. The Applicant was also advised of the decision to stand her down and was provided with a letter canvassing the allegations. Following that meeting, the Applicant lodged a complaint regarding her treatment by Mr Matthews and Ms Burns at the meeting. Ms McNulty states that while she did not consider that Mr Matthews and Ms Burns had acted improperly, that following the receipt of the complaint she and Ms Giles, a senior HR manager, took responsibility for the investigation with Mr Matthews and Ms Burns no longer being involved.
At that time the Applicant took extended leave and stated that she was not well enough to participate in the investigation.
Ms McNulty gives evidence that in around late September 2020 a certificate was received from the Applicant’s General Practitioner stating that the Applicant could return to work but not on site where there was any conflict. Ms McNulty sought clarification of the Applicant’s capacity for work and also sought clarification as to who is acting for the Applicant as communication had been received from both an industrial representative and a lawyer.
After confirming the Applicant’s capacity to work, a meeting was held on 12 October 2020 tended by Ms Giles, Ms McNulty, the Applicant and a support person for the Applicant. The meeting was conducted by WebEx.
LEGISLATIVE FRAMEWORK
Section 340 of the FW Act provides that a person must not take adverse action against another person because the other person has exercised a workplace right. Section 340(1) provides as follows:
(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
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
For the purposes of section 340(1) of the FW Act, ‘workplace right’ is defined in section 341 of the FW Act and provides relevantly:
Meaning of workplace right
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee—in relation to his or her employment.
The circumstances in which ‘adverse action’ is taken by an employer against an employee is outlined in Item 1 in section 342(1) of the FW Act:
(1) [Adverse action is taken by] an employer against an employee [if] the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d)discriminates between the employee and other employees of the employer.
Section 361 of the FW Act provides that:
(1) If:
(a) in an application in relation to a contravention […], it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
CONSIDERATION
In considering whether the Respondent has displaced the presumption in section 361 of the FW Act, I have regard to State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184, where Tracey and Buchanan JJ state at [32]:
As the trial judge recognised the leading authority on the operation of ss 360 and 361 of the Fair Work Act in the context of Part 3-1 of that Act (which includes s 351) is Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; 220 IR 445. The principles which informed this decision were recently reaffirmed by a majority of the High Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41. Relevantly, these authorities establish that:
•The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
•That question is to be answered having regard to all the facts established in the proceeding.
•The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
•It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”
•Even if the decision-maker gives evidence that he or she acted solely for nonproscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
•If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.
At [15]-[16] of the Applicant’s closing written submissions (“ACS”) it is put that there is sufficient evidence before the Court to find or infer that:
(a)the four pleaded adverse actions were taken against the Applicant because of, or partly because of, one, some or all of her WorkCover Claims, Complaints and Personal Leave;
(b)Ms McNulty was the effective decision-maker in respect of the Dismissal and the revised allegations;
(c)Ms McNulty and Mr Matthews were jointly the effective decision-makers in respect of the Allegations and the Suspension;
(d)Mr Matthews was motivated by the First WorkCover Claim and the First Employment Complaint in formulating the Allegations;
(e)Mr Matthews and Ms McNulty were both motivated by the First WorkCover Claim and the First Employment Complaint in deciding to put the Allegations to the Applicant and to effect the Suspension; and
(f)Ms McNulty was motivated by the WorkCover Claims, Complaints and Personal Leave in effecting the revised allegations and in recommending the termination of the Applicant’s employment.
(16)In reaching these findings or drawing these inferences, the following is relevant:
(a)the Applicant’s history of complaints prior to the pleaded Complaints, including complaints made by her against Mr Matthews;
(b)the circumstances that led the Respondent to begin looking into the Allegations;
(c)the unfair way Ms McNulty undertook and managed the disciplinary process from 25 March 2020 when the Allegations were first provided to the Applicant through to the Dismissal. The following matters were said to be relevant to consider:
(i)Ms McNulty’s error riddled approach throughout the process;
(ii)the Respondent’s failure to seek the handover sheet for the Applicant’s 6 February 2020 shift despite it being requested multiple times by the Applicant and her solicitors and its importance to resolving the Tangy Mousse allegation;
(d)the lack of a proper or rational basis for the substantiation of the revised allegations by Ms McNulty; and
(e)the reliance on unreliable and so-called ‘witness’ accounts by Ms McNulty and the Respondent to support the findings used to substantiate the revised allegations (i.e. these being ‘witnesses’ who were clearly biased against the Applicant and there being a significant passage of time between the 20 November 2020 interviews relied upon by the Respondent and the events in question.
The Decision Maker in relation to Termination of Employment
In relation to the submission that Ms McNulty was the effective decision maker in respect of the dismissal and the formulation of the revised allegations, the evidence supports a finding that Ms Dobroff was the decision maker in respect of the decision to terminate the Applicant’s employment. Ms McNulty provided information in order that Ms Dobroff could make a decision regarding the termination of the Applicant’s employment but she did not make the decision.
Ms Dobroff’s affidavit evidence is that she made the decision to terminate the Applicant’s employment: (see CB 171 at [4], [7]-[11]). That evidence was not challenged in cross examination and indeed, she was cross examined on the basis that her decision and the decision making process used by her was defective. The furthest the Applicant’s Counsel went on this point, was to refer to Ms Dobroff once as the “so called decision maker” but then go on to refer to her through the course of the cross examination as the decision maker.[2] It was never put to the Ms Dobroff that she was not the person who made the decision to terminate the Applicant’s employment. Further it was not put to Ms Dobroff that she had made the decision to terminate the Applicant’s employment because of the Applicant’s WorkCover claims, complaints and personal leave.
[2] T 46.20-25, T 47.35 “I put to you that someone of your seniority and exercising the role of decision –maker in this instance was an oversight.”
The Applicant has made written submission that the effective decision maker for the dismissal is Ms McNulty and not Ms Dobroff: (see ACS 41). It is put in the alternative that she is at “least one of four decision makers alongside the other people who signed the note which effected the termination”: (see ACS 43).
Further in the alternative it is put that even if Ms McNulty was not the effective decision maker or a decision maker at all, it is beyond doubt that more than anyone else, she “influenced and infected” the decision: (see ACS 44). In support of that submission the Applicant refers to Leahey v CSG Business Solutions (AUS) Pty Ltd [2017] FCA 1098 (Lee J.) at [106] where his honour stated referring to Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd (2015) 253 IR 166 at [121] (Reeves J.):
As Reeves J explained in Clermont Coal at 198 [120]-[121], the authorities place the relevant focus on the reasoning process that led to the ultimate decision. This means where the decision was made by one person, based on one incident, “the task is relatively straightforward”. On the other hand, where the reasoning process is dispersed through an assessment process involving a number of persons, “the task is much more complicated”. In such a case, examination is to take place of the reasoning process of each person whose involvement “had a material effect on the ultimate decision”. This relevant inquiry focuses on the “conscious reasoning processes of those who had a material effect on the ultimate outcome to determine whether their reasoning processes were free of the alleged prohibited reason or reasons”.
In TechnologyOne Ltd v Roohizadegan [2021] FCAFC 137 at [221] the Full Court stated:
Fourthly, the claim that each of Mr Harwood, Mr MacDonald and Mr Chung had a material effect on Mr Di Marco’s decision to terminate Mr Roohizadegan’s employment was never alleged, so that he cannot now seek to take advantage of the s 361 presumption. See, eg, Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347 at 356 [19]-[20] (Tracey, Reeves and Bromwich JJ) (explaining that before the presumption under s 361 operates the particular reason or the particular intent for the contravening action must be precisely and distinctly alleged in the application).
The application in this case was supported by a statement of claim and the matter proceeded by way of pleadings. It was not pleaded that any person had a material effect or influence on Ms Dobroff’s decision or that some other person was the effective decision maker, and therefore that submission is not open to the Applicant. If it was open to put that the Ms Dobroff was not the decision maker in regards to termination but that Ms McNulty was truly the decision maker or that she was a joint decision maker, I would, for the reasons below, find that she has discharged the burden of proving that she did not take any of the alleged adverse actions for a proscribed reason.
The ACS puts a proposition at [26] that the relevant period constituting the dismissal began on 25 March 2020 and the dismissal is said to include the making of the first allegation, the revised allegations, the investigation process and the termination of employment. The Applicant pleaded that the dismissal occurred on 13 January 2021. I find that the adverse action comprising the dismissal occurred when the Applicant’s employment was terminated on 13 January 2021. As was stated by Tracey J in Australian and International PilotsAssociation v Qantas Airways Ltd [2006] FCA 1441 regarding the analogue of section 340 of the FW Act:
The Respondent's application also raises the question of when a cause of action under s 298K crystallises. Contravention of s 298K(l) occurs "once and for all" at the time at which the proscribed conduct occurs for a proscribed reason and the conduct injures or prejudicially changes the position of the employee: cf Roberts v General Motors-Holden's Employees' Canteen Society Inc (1975) 25 FLR 415 at 418.
The Applicant also made submissions that the Court should take into account the Respondent’s conduct of these proceedings when considering whether the Respondent had discharged the burden under section 361 of the FW Act. For the reasons stated above, the cause of action crystallises at the time the action occurs.
I find that the real reasons for the decision to terminate the Applicant’s employment were those given by Ms Dobroff in her evidence in chief and she did not make that decision because of the Applicant’s WorkCover claims, complaints and personal leave.
Whether the burden not discharged because of the quality of the investigation
The ACS put at considerable length submissions that the reason that the Court should infer that the pleaded adverse action was taken because of the Applicant’s WorkCover claims, complaints and personal leave is because of what was said to be the defective and error riddled approach taken by Ms McNulty in dealing with the investigation into the Applicant’s conduct. References are also made to what I said to be unlawful reasons in the Briefing Note. It is also submitted that the process of cross examination impugned Ms McNulty’s credibility as a witness and given that it is her subjective motivation which is at issue in this trial that is a factor that should be taken into account in not accepting the positive denials by her and other witnesses.
The ACS point to six reasons (which are broken into numerous sub reasons) why the Court should not be satisfied that the Respondent has discharged its burden of proving that the adverse actions were not taken for a prohibited reason these being:
(a)the Applicant’s history of complaints prior to the pleaded complaints including complaints made by her against Mr Matthews;
(b)the circumstances that led the Respondent to begin looking into the allegations in particular the circumstances around the investigation of complaints after a WorkCover complaint
(c)the unfair way that the Respondent, and in particular Ms McNulty had undertaken and manage the disciplinary process from 25 March 2020 through to dismissal which is said to involve:
(i)errors in the formulation of the allegations put to the Applicant, a lack of a proper or rational basis for the substantiation of the revised allegations by Ms McNulty;
(ii)the errors contained in the Respondent’s findings letter;
(iii)the errors contained in the Briefing Note recommending termination in particular as to whether for allegations referred to in the Briefing Note had been largely substantiated, whether the Applicant changed a response to the allegation several times throughout the process, whether the Applicant shown an inability to understand the significance of the role she has in ensuring a clinically safe food service for all patients;
(iv)Ms McNulty’s approach throughout the investigation was riddled with errors;
(v)Ms McNulty and the Respondent’s failure to seek the handover sheet the Applicant’s 6 February 2020 shift despite it being requested a number of times by the Applicant’s solicitors;
(vi)the disadvantage that the Applicant was placed in during the purported investigation of the allegations and revised allegations;
(vii)the reliance on unreliable accounts by Ms McNulty and the Respondent to support the findings used to substantiate the revised allegations
(viii)the disadvantage the Applicant was placed in during the purported investigation of the allegations and revised allegations; and
(ix)the disadvantage the Applicant was placed in during the purported investigation of the allegations and revised allegations; the reliance on unreliable accounts (given people who were employed in the food services area with the Applicant) by Ms McNulty and the Respondent.
(d)the matters which Ms McNulty chose to include in the termination Briefing Note relating to unlawful reasons (the Briefing Note refers to the applicant’s WorkCover claim, her personal leave, and her complaints);
(e)Ms McNulty’s impugned credibility as a witness especially in circumstances where above everyone else it is her subjective motivation which is at issue in this trial; and
(f)the Respondent’s conduct of the proceeding.
I do not accept that Ms McNulty was a witness who lacked credibility or whose credibility was impugned by the process of cross examination or otherwise. She was in a role where it was part of her duties to ensure that services including the provision of food were delivered safely to patients. She received notice of complaints from people who had worked with the Applicant about the Applicant engaging in conduct which may expose patients to serious health risks. I do not accept that Ms McNulty was motivated to receive the accounts of these co-workers because the Applicant had made a WorkCover claim or had made complaints in the past. Ms McNulty was duty-bound to investigate those matters when she became aware of them. By her own positive evidence I accept that Ms McNulty had a genuine belief that the Applicant had engaged in conduct which may endanger patients and that belief was supported by the witness statements of the co-workers who had witnessed the Applicant’s conduct: (see CB 232–241). The contrary position is that Ms McNulty may well have been in dereliction of her duties had she not investigated the matters raised by the Applicant’s co-workers about the Applicant’s conduct. Nor do I find that Ms McNulty or any other witness was wilfully blind to the true state of the facts alleged by the Applicant.
Ms McNulty gave positive reasons for her decisions to stand the Applicant down, to make the revised allegations and to recommend the Applicant’s dismissal: (see CB 131 at [10], CB 133 at [18] and CB 134 at [30] – [31]).
As to allegations that there were deficiencies in the investigation process or failures accord procedural fairness in that process, I do not find that those failures alleged were such as to give rise to an inference that any adverse action was taken for an unlawful purpose. This proceeding is not a claim for unfair dismissal. As is stated in Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 at [48] per Bromberg J, a claim under Part 3–1 of the FW Act “… is not a broad enquiry as to whether the Applicant has been subjected to a procedurally or substantively unfair income outcome”. It is not necessary for an employer to prove that the reasons that actuated its conduct were procedurally or substantively fair: Khiani v Australian Bureau of Statistics[2011] FCAFC 109 at [33] (Gray, Cowdroy and Reeves JJ). Further even if it is established that Ms McNulty or Ms Dobroff or indeed any of the persons involved in the investigation proceeded on a misunderstanding of the true state of the facts, that of itself does not establish that the relevant decisions or actions constituting the adverse action were taken for unlawful reasons: see Musgrove v Murrayland Fruit Juices Pty Ltd (1980) 47 FLR 156.
The ACS would have it that the whole process of receiving the complaints, preparing statements from the Applicant’s co-workers, the formulation of allegations and then revised allegations, the conduct of meetings as part of the process and the formulation of the Briefing Note are in fact all part of orchestrated plan hatched by Ms McNulty and perhaps Mr Matthews and Ms Burns in order to terminate the Applicant’s employment. In opening oral submissions Counsel for the Applicant submitted that the allegations in relation to the Applicant’s conduct were constructed.[3] By that understanding that they were made up to produce a particular result. That is a serious allegation and it has not been proved to any standard.
[3] Transcript page 8, line 40.
I do not accept that the Respondent’s employees have constructed allegations against the Applicant because she made complaints or made a WorkCover claims. This is particularly so when there was a credible and reasonable basis for taking action whether it being raising allegations, standing the Applicant down whilst the allegations were investigated and putting the allegations to the Applicant so that she could respond to them – that reason being the one positively sworn to by Ms McNulty that she had genuine concerns regarding patient safety arising from the allegations about the Applicant’s conduct.
There is no evidence that Ms McNulty had any personal animus towards the Applicant and to the contrary Ms McNulty gave evidence at [4] CB 131 that she had positive relationship with the Applicant throughout the time that she known her. It was not put to Ms McNulty that there was some personal or professional motivation for her to engage in a conspiracy with other employees to adversely affect the Applicant.
Contrary to the assumption that seems to underlie the ACS, it is not the Court’s role in this proceeding to embark on a fact-finding exercise to determine whether or not the conduct of the Applicant which is said to form the basis for the decision to terminate her employment is established or not. The enquiry is directed at determining whether the decision-maker subjectively believed that the misconduct occurred. The reasons of the decision-maker at the time the adverse action was taken is the focus of the Court’s enquiry: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 at [127] per Gummow and Hayne JJ. I find that Ms McNulty and Mr Matthews and Ms Burns were all genuinely motived by the need to ensure patient safety when they conducted the investigation.
Further, I accept the matters set out in a table attached to the Respondent’s outline of submissions (which is attached hereto and marked “Annexure A”) establishes that there is evidence there was a proper basis for the Respondent to put the allegations to the Applicant and for the findings arising from those allegations. The Applicant’s summary of the allegations of the shortcomings in the process are fairly put and the responses accurately reflect the evidence before the Court and is a convenient reference to that evidence.
The Handover Sheets
A considerable amount of time was spent during cross examination on the question as to whether or not Ms McNulty had made enquiries about handover sheets at the Applicant’s request. This focuses on whether or not enquiries had been made about a handover sheet which were prepared by the Applicant and provided to the administration at the end of her shift, was made to test whether Ms McNulty had properly and genuinely investigated the Applicant’s conduct.
The Applicant gave evidence that she had made enquiries regarding the existence of the handover sheet prior to a meeting on 12 October 2020. She also gave very clear evidence that anything that she did or did not do in relation to the handover sheet was not because of any WorkCover claim or complaint and I accept that. Further the scope of the enquiry that the Applicant sought to embark on in relation to that matter is outside the task that I am required to undertake to determine the central question as identified in Barclay. The point is made most clearly in the ACS at [58] where it is put that the Respondent had not explained why the employees who had identified the issues involving the Applicant on 7 February 2020 had not been called give evidence in this proceeding. It is not the role of this Court to re-conduct a workplace investigation.
The reference to the Applicant’s Employment Complaints in the Briefing Note
The ACS at [66] submits that the reference to the Applicant making a WorkCover claim in the Briefing Note is evidence that the decision to terminate was taken for a proscribed reason. For ease of reference the relevant passage states:
(the Applicant) subsequently lodged a WorkCover claim for stress and anxiety and was unable to respond to these allegations. She went from stand down with full pay to WorkCover. The WorkCover claim was subsequently rejected by the insurer and (the Applicant) lodged to further WorkCover claims between March and September which were also rejected by the insurer. During this time (the Applicant) continued to submit WorkCover certificate coding she was not well enough to return to work.
In late September 2019 (the Respondent) received a clearance certificate from (the Applicant) General Practitioner indicating she was fit to return to work in an area away from the current conflict and that she was fit to participate in the investigation and discuss the matter directly with (the Respondent). (the Applicant) recommenced her stand-down with full pay pending the investigation early October 2020.
Since the original incident in February 2, 2020 (the Applicant) has continued to contact (the Respondent) both individually, through her husband who also works for (the Respondent) and via lawyers making serious claims of harassment, bullying and discrimination towards her. She has not provided enough evidence or details for (the Respondent) to complete any reasonable investigations into these matters despite numerous requests from (the Respondent) for detailed information in relation to any of these claims.
I find that the inclusion of the reference to the WorkCover claims in the Briefing Note is simply a means of providing the narrative or chronology to the decision-maker and in order to explain why the incident which occurred in February 2020 was not the subject of a meeting with the Applicant until October 2020. The reference to the fact that the Applicant has made claims of harassment, bullying and discrimination are an accurate statement of what had happened. Each of the people who signed the Briefing Note gave positive evidence that they were not motivated because the Applicant had made WorkCover claims or any Employment Complaints.
I do not regard the minor errors in the Briefing Note to be evidence of an investigation that was so shoddy that it is in fact no investigation at all. Nor is the decision one that no reasonable decision-maker could make – that conclusion having been urged upon me by the Applicant’s Counsel in opening.[4]
[4] Transcript page 11, line 5.
Non Dismissal Adverse Action
The Applicant also submits that the making of the allegations including the revised allegations constitute adverse action for the purposes of the FW Act. The making of allegations does not constitute adverse action as the making of the allegations in this case did not injure or prejudicially alter the Applicant’s position: See The Environmental Group Ltd v Bowd [2019] FCA 951 at [110] and [167]; see also Jones v Queensland Tertiary Admissions Centre (No.2) [2010] FCA 399; (2010) 196 IR 241 where it was held that the commencement of an investigation was not adverse action because the employer had reasonable reasons to commence the investigation and similarly in Police Federation of Australia v Nixon[2008] FCA 467; (2008) 168 FCR 340 at [46] (Ryan J), the disciplinary investigation was not found to be adverse action because it was brought in good faith on a proper basis and no substantive change, or prejudicial alteration, was involved; see also Green v Preston Motors Pty Ltd[2022] FedCFamC2G 205 (per Blake J).
In relation to the suspension of the Applicant’s employment (on full pay), this does constitute adverse action as it prevents the employee carrying out work in the usual way and may have consequences in relation to how she organises her arrangements and deprive her of the social benefits of employment. I note that the adverse action in Barclay involved Mr Barclay being stood down from duties whilst he prepared a response to his employer. In The Environmental Group, Steward J held at [115] held that the suspension of a senior executives employment (albeit on full pay) constituted adverse action. Whilst the Applicant is not a senior executive, the suspension of employment is likely to have prejudicial effects. Whilst the Applicant was told that the suspension of employment was not a form of disciplinary action, standing down from employment is a significant step which involves a prejudicial alteration to the applicant’s employment.
I accept the evidence of Ms McNulty, Ms Burns and Mr Matthews that they did not take any of the alleged adverse action including the making of the allegations and the standing down of employment for proscribed reasons or for reasons which included a proscribed reason.
In relation to the allegation raised late by the Applicant regarding Mr Matthews, I do not accept that Mr Matthews stated words to the effect of “if you make a WorkCover claim, there will be trouble” to the Applicant on 12 February 2020. I do find it extraordinary that the Applicant did not raise that allegation in earlier affidavit evidence when she had the opportunity do so. An email from Mr Matthews to the Applicant dated 12 February 2020 at 7.49pm which is annexed to the Applicant’s affidavit of 4 February 2022 makes reference to the telephone call on the afternoon of 12 February 2020 alluding to an incident in the menus monitors’ office between the Applicant and another employee. The email notes that the Applicant was seeing her General Practitioner due to heightened stress and suggested that the Applicant also consider accessing the Respondents EAP program. The letter then goes on to state:
I do not know the full details of today’s incident and am keen to hear from you your view of what happened. Once you’ve feel you are able, can you please arrange a time with me to discuss the matter further.
I prefer the evidence of Mr Matthews on this matter and generally. The Applicant had a poor memory of events. In an earlier affidavit of 18 June 2021, she gave evidence that she had not attended training on 15 January 2019 in relation food safety because she was in Sydney on the day it was held. The Applicant produced records of train tickets for 8 January and 19 January 2019 to prove that she was not in Melbourne and could not have done the training. When the Respondent produced records that the Applicant had attended work on the day of the training she changed her evidence by an affidavit sworn on 1 February 2022 and accepted that she had worked on that day but then could not remember doing the training. Under cross examination the Applicant said that she was in Sydney and “a Mr David” said to her “they had short staff, so … shift at work. And I have the flight after –after 9 o’clock sometime, sir. And my phone was damaged, so I couldn’t get the evidence. Now I got the evidence: my airline ticket.”[5]
[5] Transcript page 31, lines 35-40.
The Applicant did not produce that airline ticket to the Court. Subsequently the Applicant gave evidence that she travelled to Sydney on 9 January 2019 but then came back before 13 January 2019 and “I can’t remember when exactly. And I went on the 15th again because my son had an emergency over there. Then I came back 19th again”.[6] The Applicant did not give that evidence in the affidavit that she swore on 1 February 2022. In this example, the Applicant has changed her evidence very shortly before giving evidence at trial and in the course of giving evidence.
[6] Transcript page 32, line 25.
The email from Mr Matthews of 12 February 2020 indicates he was trying to assist the Applicant with her stress related issues rather than try to dissuade her from taking any action.
I find that the Respondent has discharged its onus in relation to the adverse action comprising the termination of employment and the non-dismissal grounds of claimed adverse action.
Breach of the Enterprise Agreement
Paragraph [42]–[43] of the statement of claim pleads that the Respondent breached clause 25.1 of the Enterprise Agreement governing the employment of the Applicant because the Respondent did not provide the Applicant with payment of the wages for at least a fortnight from the period from 28 September 2020 to 12 October 2020. The Applicant claims a loss in the sum of $1,861 and also seeks the imposition of a pecuniary penalty under section 546(1) of the FW Act.
Clause 25.1 of the Enterprise Agreement provided:
Wages will be paid weekly or fortnightly (as determined by the Employer) to the nominated financial institution of each Employee. Payment will be made no later than Thursday following the end of the pay period.
On 28 September 2020 the Applicant provided the Respondent with Certificate of Capacity for “suitable employment” from 26 September 2020. The certificate did not state that the Applicant had a capacity for pre-injury employment and the relevant box in relation to whether she had that capacity that is not ticked. Under the heading “Physical Function – Additional Comments” certificate stated: “can work in another location away from the current conflict”. Whilst Ms McNulty gave evidence under cross examination that the Applicant had capacity to return to work, that evidence is subject to the terms of the Certificate of Capacity which provided that she did not have the capacity for pre-injury employment.
The Respondent submits the Certificate of Capacity which stated that the Applicant could work in a current location away from the current conflict was not an agreed return to work to her contracted pre-injury duties. It is also submitted that on 7 October 2020 the Respondent made an offer to meet with the Applicant to meet with her in relation to the investigation and that the Applicant did not make herself available to meet until 12 October 2020. The Applicant was paid from 12 October 2020. The Respondent has paid the 2 weeks’ pay said to be outstanding on a “without prejudice” basis shortly prior to the final hearing.
The Applicant is entitled to the payment of wages pursuant to an industrial instrument and that entitlement is independent of rights arising under contract. The Applicant had provided a certificate of capacity for work and therefore was entitled to be paid unless her employment was terminated. The submission that she was not available to perform her contracted position does not undermine her entitlement to wages under the Enterprise Agreement. There is no evidence that the Applicant refused to follow a direction to return to work whether in her original position or in some other position. Therefore I find that there has been a breach of the Enterprise Agreement. The amount of money involved in the breach is modest and has been repaid and therefore any penalty that is likely to be imposed (if any) is also likely to take those matters into account.
I will direct the parties to file written submissions in relation to the penalty and the penalty will be decided on the papers. That question of penalty will have to be determined by another Judge by reason of my elevation to Division 1 of this Court on 6 April 2022 (which Court lacks jurisdiction to hear the matter) who can have regard to these reasons and imposing any penalty. I direct Counsel for the parties to confer prior to any submissions being prepared in order that an agreed position in relation to penalty might be agreed.
CONCLUSION
For these reasons, I will make orders dismissing the application filed 4 March 2021 pursuant to section 340(1)(a)(ii) and 352 of the FW Act.
I will also make orders as set out above in relation to the breach of the Enterprise Agreement by not providing the Applicant with payment for her wages at least fortnightly for the period 28 September 2020 to 12 October 2020.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab. Associate:
Dated: 5 April 2022
Annexure A
Revised Allegation Applicant's Submission Response 1a. On 6 February 2020 the Applicant completed an order for tangy mousse for a patient (in Bed 18, Ward N3) who had a citrus allergy. It is submitted that this allegation should never have been substantiated.
The Applicant provided a clear response that she had not been able to complete all the menu cards in Ward N3 (meaning, she had collected these cards, but had not been able to check the patient meal orders against the dietary requirements). The Applicant explained that this had been duly recorded on her handover sheet, as was the required practice of Menu Monitors. She again, requested a copy of her handover sheet.
It is submitted that it was not reasonably open for Ms McNulty to substantiate this allegation given the Applicant’s explanation and Monash Health’s failure or inability to check the handover sheet which would have either confirmed the Applicant’s explanation and exonerated her of this allegation or it would have assisted Monash Health with substantiating the allegation.
1) There was clear objective evidence to support this allegation.
2) The Applicant worked on the relevant ward as menu monitor and was responsible for the menu in question (see timecard at SM-4 CB224).
3) Contrary to the Applicant's claims, completed menu packs (including the menu in question) were scanned into the system at the end of the shift on 6 February (see Ms McNulty’s oral evidence at T63: "… We have on file from 7 February 2020, a scanned menu pack. So the process was a menu monitor would scan their menus in when they were complete. And we have evidence that that was scanned in before Tara’s end of shift, with the menu card in question completed."
4) The menu contained an order for tangy mouse (see SM-2 CB220) which was something the patient was not permitted to eat. See diet list showing allergies (SM-1 CB218).
5) Ms McNulty made enquiries about the handover sheet but could not locate it (see T59 L L16-21, L45-47; T64 L4; T65 L31-37, L43-46; T178 L30-36; T79 L3-6; T178 L18-22)
Revised Allegation Applicant's Submission Response 1b. On 7 February 2020 when the allegation in 1a was raised with the Applicant by another Menu
Monitor. The Applicant did not verify the ingredients of a tangy mousse and did not remove it from the patient’s order.
This allegation is completely misconceived.
The allegation is that the Applicant did not verify the ingredients or remove the item from the patient’s order on 7 February after the matter was allegedly raised with her by Ms Verma.
The Applicant denies this matter every being raised with her prior to the Allegations, however, taking Monash Health’s allegation at its highest: there is no proper basis to this alleged misconduct.
1) The Applicant’s submission is a self-serving and misleading interpretation of Ms Verma's record of interview (see record of interview at SM-8 CB232/233).
2) Further, Ms McNulty gave oral evidence (T163) as to the basis of this allegation as follows:
… Geeta removed it after she raised it with Tara
because Tara didn’t do it. So Geeta went out – personally out to the kitchen and removed it.
Ms Verma’s interview notes of 20 November 2020 show that Ms Verma had confirmed to Ms McNulty that she had already ‘changed’ the order prior to Ms Verma allegedly raising the matter with the Applicant. …As I said, Ms Mishra didn’t verify any of those ingredients and Ms – and Geeta had to go and do it herself.
Therefore, there was nothing further for the Applicant to do. There was no advice to follow, no ingredients to verify and no tangy mousse to remove from the patient’s order.
It is submitted that it was illogical to substantiate this allegation.
2. On 7 February 2020 the Applicant went to the kitchen, returned to the Menu Monitors office with a tangy mousse, opened it and ate it in front of another menu monitor. Ms McNulty’s evidence under cross examination was that this allegation was not substantiated.
It is submitted that it is inconceivable how, in these circumstances, Ms McNulty sent a letter to the Applicant substantiating this allegation.
1) Ms McNulty gave oral evidence (T165) to the following effect:
"…So, one menu monitor saw Tara with the mousse in her hand but not physically eating it and the other one saw her eating it. So we didn’t substantiate the part about her physically eating it….
…During the investigation process. It was substantiated because two people saw her with
Revised Allegation Applicant's Submission Response the tangy mousse in her hand, in the menu monitor’s office. One of those was a spoon in her hand and the other one physically eating the tangy mousse…. 3. On 6 February 2020 the Applicant provided soup to a patient (Bed 13, Ward SW3) on a no- Fish Shell Fish (‘FSF’) diet. On 6 February 2020, the Applicant hand wrote ‘soup’ on the patient’s menu card for 7 February 2020. Firstly, this allegation is also clearly misconceived on its face.
The Applicant did not work in Ward SW3 on 6 February. It is impossible that the Applicant could have done either of the things alleged on this day. Monash Health clearly made another error in alleging that this conduct occurred on 6 February. This is acknowledged by Ms McNulty in her first affidavit.
However, the Applicant can only have been expected to have responded to the allegations that were put to her. After responding to the original mistaken allegation alleging conduct spanning from 7 to 12 February, and then following a revision being asked to respond to alleged conduct on 6 February, it was wholly illogical for Monash Health to substantiate this allegation in the face of these continuing errors.
Yet, even if the allegation is read and taken as referring to 7 February rather than 6 February (a very charitable extension to Monash Health in the circumstances where this is its own investigation process involving the serious matter of considering the termination of an employee), the
allegation is quickly disproved by reference to Monash Health’s own documents which it was relying upon at the time (and documents which were not provided to the Applicant
prior to this proceeding).
1) Ms McNulty explained the error in respect of the allegation dates in her first affidavit (see paragraphs [25] – [27] CB134).
2) There was clear objective evidence to support the fact that the Applicant engaged in the alleged conduct on 7 February.
3) The Applicant worked on the relevant ward as menu monitor and was responsible for the menu in question (see timecard at SM-4 CB224).
4) Soup was written on the menu card (see SM-7 CB230).
5) The patient could not eat soup given the allergy: see SM-5 CB226 which shows that the patient was on a fish and shellfish free diet between 4-8 February.
6) The menu card itself notes that it is a fish and shellfish free menu (see SM-7 CB230).
7) The fact that the patient changed beds is irrelevant because:
· Ms Mishra was responsible for all beds on the relevant ward;
Revised Allegation Applicant's Submission Response The iPM record for this patient shows that the patient was transferred from Bed 1 to Bed 13 at 9:24am on 7 February.
Therefore, the patient would not have been in Bed 13 when the Applicant collected the menu cards for this ward on the morning of 7 February. There can also be no suggestion that this patient filled out a menu card while in Bed 1 and prior to being moved because the menu card is marked for ‘Bed 13’ and not ‘Bed 1’.
Further, the handwriting contained on the menu card in question [at CB 230] is clearly not the Applicant’s handwriting. This can readily be seen by contrasting the handwriting contained on the ‘tangy mousse’ menu card at [CB 220] where
‘Allergy: Citrus’ is noted on that card in three places (and which the Applicant has confirmed is indeed her handwriting).
It is submitted that this allegation could never have been rationally substantiated, and it should not have been substantiated by Ms McNulty.
· Ms McNulty gave oral evidence that menu cards can be collected at two times throughout the day (ie the menu card could have been completed after the patient moved into Bed 13)
o …Now, do you agree that menu cards are collected in the mornings, around about 8 to 9 am, by menu monitors?---It varies. So there are two runs of menu card collection. So they go up in the morning, and if the patient is not there, hasn’t completed the menu card – number of reasons why – they then go back in the afternoon to do a second collection. (T167)
8) Whether the patient wrote soup on the card or whether the Applicant did (both are possible), is irrelevant. The Applicant’s role was to identify and remove any items that had been added to the menu by the patient (if they contained allergens) and not to add any inappropriate items herself.
9) Ms McNulty gave oral evidence that "… She denies it, but we have evidence that said she allowed those items to either be written on the menu card or go through on the menu card."
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