Mr Diego Velasquez v Cabrini Health Limited
[2017] FWC 5965
•21 DECEMBER 2017
| [2017] FWC 5965 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Diego Velasquez
v
Cabrini Health Limited
(U2017/7702)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 21 DECEMBER 2017 |
Application for an unfair dismissal remedy; whether a genuine redundancy; jurisdictional objection upheld; application dismissed.
Introduction
[1] Mr Diego Velasquez (Applicant) is a social worker. He was until the termination of his employment with effect on 23 June 2017, employed by Cabrini Health Limited (Respondent) as a Grade 3 Complex Case Manager in the Case Management Services (CMS) team at its Brighton facility. He commenced employment with the Respondent on 7 February 2012 at its Malvern facility as a Grade 2 Social Worker and was later promoted to Grade 3. 1
[2] The Respondent’s decision to dismiss the Applicant from employment was based on redundancy grounds brought about by a decision to cease operating the CMS team. 2
[3] The Applicant applied to the Fair Work Commission (Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act) on 14 July 2017. The Respondent gave notice that it objected to the application on the ground that the dismissal of the Applicant was a case of genuine redundancy and therefore the Applicant was not unfairly dismissed within the meaning of s.385 of the Act. Section 396 of the Act requires the Commission to decide certain matters relating to an unfair dismissal remedy application before considering the merits of the application including, relevantly, whether a dismissal was a case of genuine redundancy.
[4] I have concluded that the Applicant’s dismissal was a case of genuine redundancy within the meaning of s.389 of the Act. My reasons for that conclusion follow below.
Factual context and background
Events prior to the decision to cease operating the CMS team
[5] The Respondent is a large not for profit health care provider. It operates four clinical sites and one residential care facility in Melbourne. The four clinical sites are located in Brighton, Malvern, Elsternwick and Prahran. As indicated earlier the Applicant commenced employment at the Malvern facility. Since mid-2014 he was located at the Brighton facility from which he performed the role in which he was employed until his dismissal.
[6] Ms Victoria Whitman is the Chief Social Worker of the Respondent and has occupied that position since July 2010. In that position, Ms Whitman is responsible for managing social work services across the four earlier mentioned clinical sites. 3 Ms Whitman recruited the Applicant.4 Before transferring to the Brighton facility, the Applicant and Ms Whitman worked together.5 Ms Whitman continued to have managerial responsibilities for the Applicant at the Brighton facility although they no longer worked directly together. The relationship between the pair deteriorated before the Applicant’s move to the Brighton facility.
[7] On or around 28 June 2013, the Applicant and an occupational therapist, Rebecca, visited an elderly patient at his home. During the visit and after it, the Applicant became concerned that inappropriate advantage was been taken of the patient by his carer and the carer’s brother. 6 The nature of the concerns need not be mentioned however an application was made to the Victorian Civil and Administrative Tribunal (VCAT).7 As a consequence a temporary administrator was appointed and a review undertaken.8 The Applicant’s evidence is that during the home visit, he and his colleague were “victimised” by the carer’s brother.9 The Applicant says that the carer’s brother made threats directed at the Applicant which left the Applicant concerned for his physical and emotional well-being.10 Upon his return to the Malvern facility, the Applicant wanted the Respondent to call the police and file a report, however, the Respondent decided not to call the police.11 The following day the Respondent received correspondence from the carer and the carer’s brother. The Respondent then decided to call the police.12 None of this is disputed. It is also not in dispute that at the time of this incident, the Respondent did not have in place any specific policies to deal with threats or complaints arising from home visits affecting the Respondent’s staff.13
[8] On 29 June 2013, the Applicant sent an email to his manager, Ms Whitman. The Applicant outlined his concerns about the incident on 28 June 2013. 14 In the email, the Applicant discussed, inter alia, that no one inquired about the Applicant’s well-being following the incident; that he was told that his attempt to contact the police may have “inflamed” the situation; concerns for his safety at the hospital and at home; his name was the only name listed on the VCAT application and the Respondent’s failure to call the police when he asked.15 Ultimately, Ms Whitman became the applicant to the VCAT application.16 That the email was sent it not in dispute. That the Applicant raised concerns about the 28 June 2013 incident is also not in dispute, however, I need not make findings as to the veracity of the matters raised in the email, as other than to observe that these matters provide contextual background to the Applicant’s period of employment and his relationship with Ms Whitman, the matters raised are not particularly relevant to issues I need to determine.
[9] It is not in dispute that following the incident, the relationship between Ms Whitman and the Applicant deteriorated. 17 The Applicant gave evidence about the relationship deterioration and variously described it in effect as:
• having changed following the VCAT incident 18;
• affecting trust and confidence. 19
[10] In the 7 November 2016 correspondence to which later reference will be made, the Applicant wrote that “I do not (sic) longer trust nor feel comfortable liaising with…their Manager (Mrs Victoria)”. 20 Counsel for the Applicant cross-examined Mr Goller, Workplace Relations and Policy Manager with a proposition that there had been a breakdown of trust between the Applicant and Ms Whitman since the VCAT incident.21
[11] Ms Whitman said that from around June 2013, the Applicant appeared unhappy in his role and that her relationship with the Applicant changed. 22
[12] In or around May 2014, all employees including the Applicant were the subject of an annual performance review. The review uses an assessment tool described as the Harvard Managed Mentor Development Employee tool. The tool requires the relevant employee and his or her manager to each complete a review of the employee’s performance. In short compass, there is a self and supervisor/manager assessment component in the tool. The matters raised in the respective assessments are subsequently discussed at a meeting between the manager and the employee. The Applicant completed the self-assessment component of the performance review. He raised some concerns about the Respondent’s handling of the VCAT incident and about Ms Whitman’s dealing with the incident. 23 Ms Whitman’s evidence is that she and the Applicant agreed to disagree about the VCAT matters raised by the Applicant and signed off the relevant paperwork.24 The Applicant’s evidence as to the outcome of the review was that all issues between he and Ms Whitman were discussed25and although he says Ms Whitman did not use the words “agreed to disagree” he did not demure from the thrust of that proposition.26 It seems uncontroversial that no further steps were taken in relation to the issues identified in the review as between the Applicant and Ms Whitman.
[13] In or around June 2014, the Applicant successfully applied for the position of Complex Case Manager at the Respondent’s Cabrini Brighton. 27
[14] On 27 October 2014, the Applicant received a letter from Ms Julia Trimboli, Director of Mission and Strategy nominating the Applicant for a ‘Partners in Mission Award for Staff Excellence’. 28 On 12 October 2015, the Applicant received a letter from Ms Catherine Garner, Executive Director of Mission and Strategy nominating the Applicant for a ‘Partners in Mission Award for Staff Excellence’.29 This is uncontroversial.
[15] In around August 2015, Ms Angela Ruddock commenced as a social worker at the Brighton facility. Ms Whitman said that some time after commencing employment, Ms Ruddock reported concerns about the Applicant to Ms Whitman. 30 Ms Whitman’s evidence is that Ms Ruddock complained that the Applicant acted in an overbearing manner and was often critical of her work.31 Ms Whitman says that Ms Ruddock explained to her that she believed the Applicant had deliberately withheld information from her about a patient she had been assisting to find residential care. Ms Whitman’s evidence is that Ms Ruddock was frustrated and felt it had made her look incompetent in front of the patient’s carer.32 Ms Whitman says that Ms Claire Parks, Program Leader for CMS, raised the issues with the Applicant as part of his general performance feedback.33 Ms Whitman says that in around August 2016, she met with Ms Ruddock. Her evidence is that Ms Ruddock was visibly upset and distressed by the Applicant’s behaviour and that she had indicated that the situation had not improved.34 Ms Whitman said that she was concerned about the effect those issues were having on Ms Ruddock and decided to stop her allocation at Cabrini Brighton.35 Again these are contextual matters speaking to the Applicant’s employment with the Respondent and his relationship with Ms Whitman. I need not make findings as to the veracity of these matters for the reasons stated further below. It is not apparent on the evidence that any other step of any substance was undertaken by the Respondent in respect of these matters.
[16] Ms Whitman’s evidence is that in about October 2016, she received a phone call from Ms Efi Vasilopoulos, a Grade 2 Social Worker, who indicated that she was finding it difficult to work with the Applicant because of what she described as poor attitude towards her. 36 Ms Whitman’s evidence is that she recalls one occasion where Ms Vasilopoulos explained to her that the Applicant had interfered with the process of dealing with a patient, whom she was assisting to find residential care which made Ms Vasilopoulos look unprofessional.37 Ms Whitman raised Ms Vasilopoulos’ concerns to Mr Andrew Ryan, the Respondent’s Director of People Services. Ms Whitman also decided that Ms Vasilopoulos should cease working at Cabrini Brighton. Ms Vasilopoulos’ complaint was also discussed with Ms Parks, who then discussed the matter with the Applicant.38 The Applicant maintains that this matter was never formally resolved and that the Respondent failed to provide mediation in order to resolve the issues raised by Ms Vasilopoulos. It does appear that no step was taken to resolve any issues between the Applicant and Ms Vasilopoulos. Rather, steps were taken to keep the two apart, by preventing Ms Vasilopoulos from working at Brighton. The Applicant, in my view understandably, expressed frustration about the manner in which the complaints were handled by the Respondent.39
[17] It is however neither necessary nor appropriate for me to make a finding about the veracity of these various allegations since those making the allegations or complaints were not called to give evidence. That the allegations or complaints were made provides context to correspondence discussed in the paragraph which follows.
[18] On 7 November 2016, the Applicant sent a letter to Mr Ryan addressing some of the allegations made against him, the letter was carbon copied to Ms Claire Parks. 40 The letter is quiet lengthy but for present purposes the relevant parts of the letter are extracted below:
“Dear Mr. Ryan,
…
I would expect that an Independent Party investigates Efi's allegations and accusations against me. I do not trust Cabrini to conduct such internal investigation. There is clearly a Campaign I Witch Hunt I Vendetta against me from members of the Social Work Services including the Manager (Mrs. Victoria Whitman).
All the written incidents I complaints about cases and interactions with some Social Workers, have been submitted to my Manager (Claire Parks) but unfortunately those complaints were given to the Manager of the Social Work Services who never investigated any of those complaints. I do not believe that Mrs, Whitman is the most appropriate person to deal with those complaints as she herself has been the fuel behind the hatred, harassment and bullying behaviour which I have been experiencing from some Social Workers since my departure from this team in June 2014.
I would like for an Independent Party to not only investigate Efi's allegations but also to make appropriate recommendations better way for us to work together and professionally in order to assist our patients as well as protecting me from further accusations by members of the Social Work services.
The current Residential Care process does not work at Cabrini Brighton as some Social Workers begrudge me personally and professionally. Unfortunately as long as the Social Workers' Manager continues to encourage Social Workers to give me a hard t1me, his situation would never be likely to improve.
As indicated, some members of the Social Work Services have been framing me since I left their Unit in June 2014. The very first incident was when Angela Rudock approached me in my office space and expressed some disappointment to the fact that I had not been referring many patients to them for about 6 months. I have a witness who was present in the room when Angela came to my office to confront me about the lack of referrals from me. Following Angela's visit to accuse me, I wrote the following message to my Manager (Claire Parks):
"31/07/14 - Incident with Discharge Plan: Angela came to my office today and confronted me in relation to not referring all residential care cases to her as I am the one who is getting all the Credit for it.
I told Angela that some cases do not need to be referred to her as the families have already started the process or are aware of facilities and residential care process.
I told Angela that I was employed to do a job and not to compete with her.
This incident was witnessed by a Nurse (Maggie Sim) who asked who that woman was when Angela left the room".
Maggie is also willing to testify about this incident on request.
Lastly but not least I would like to reiterate that both Angela Rudock and Efi Vasilopoulos do not triage / check referrals properly. They do not contact the Referrer to clarify referrals nor they seek further clarification. They both have ignored referrals / messages from me and do not engage me when necessary. Efi has launched this attack on me without checking her facts prior to submitting her written complaint.
This situation cannot longer continue. I am requesting that Cabrini Management treats this matter very seriously and urgently as I do not longer trust nor feel comfortable liaising directly with Angela Rudock, Efi Vasilopoulos or their Manager (Mrs. Victoria Whitman) without having witnesses around me.
Social Workers are the only Allied Health Professionals that I have been experiencing problems since I left their unit in June 2014.
…
Yours sincerely
Diego Velasquez
Complex Case Manager
CC. Claire Parks
Program Leader Complex Aged and Case Management Services”
[19] On the material before me, there appears to have been a brief meeting between the Applicant and Mr Michael Butler, General Manager of Rehabilitation and Allied Health and Ambulatory Services held on 23 January 2017 about Ms Vasilopoulos’ complaint. On 20 February 2017, the Applicant received an email from Mr Butler, in which Mr Butler suggests that from the Respondent’s perspective, the “matter has been concluded following the meeting on 23 January, where you were advised that neither you nor Efi having any case to answer.” 41 It is unclear whether the Applicant raised any further concerns with the Respondent after the email to which reference has been made, however it is clear that the Applicant did not share the same view.42 It seems clear however, that the allegations made by the Applicant about Ms Whitman, which are serious allegations, were not brought to Ms Whitman’s attention,43 nor was any apparent step taken by Mr Butler to resolve the matters raised by the Applicant so far as those matters concerned Ms Whitman. Mr Butler was not called to give evidence so the reasons for the apparent inaction were unexplained, but it is, to say the least, unfortunate that allegations of the kind made by the Applicant were left to fester unresolved.
[20] Ms Whitman gave evidence that in February 2017, another social worker who had commenced her employment at Cabrini Brighton raised concerns about the Applicant’s poor behaviour towards her. 44A meeting was arranged with Ms Whitman, Ms Parks and the Applicant to discuss some of the issues which had been raised. Ms Whitman’s evidence is that they all agreed that the Applicant would be assigned responsibility for more tasks in order to reduce the potential for disagreement with the Social Work team. The Applicant says the alteration to responsibilities occurred as a consequence of a recommendation he had made in order to provide continuity of care and support to patients/families and hospital staff in general but also to avoid misunderstanding and role overlapping between social workers and the Complex Case Manager.45 The substance of the evidence is to the effect that the alteration of responsibilities occurred by agreement between Ms Whitman and the Applicant. On 13 February 2017 a memorandum said to record the outcome of the meeting was provided to the Social Work team and the CMS team.46 The memorandum set out the following:
“As of the 13th February the Brighton Case Manager role will include having total responsibility for the facilitation of the move into residential care for appropriate patients. Previously this has been a role shared by Case Management and Social Work, however, with the unique situation of the Brighton Case Manager having Social Work skills, and working full time this will enable a seamless transition for patients.
When the Brighton Case Manager is on leave the Social Work department will support the casual Case Managers in the organisation of residential care.
Social Work will focus on providing support and resources for emotional, financial and legal issues, and will continue to respond to the palliative care and day oncology patients at Brighton, providing the above, and support for adjustment to illness.
This is a great opportunity for both Case Management and Social Work to continue to develop their roles at Cabrini Brighton to support a great patient experience.
Thank you”
The decision to cease operating the CMS team and consultation
[21] In or around late April and early May 2017, the Respondent made a decision to abolish CMS team. 47 Mr Ryan prepared a Change Impact Statement and a copy was sent to Mr Goller for his review.48
[22] On 4 May 2017 49 the Respondent purported to commence consultation about the decision and its impact pursuant, relevantly to clause 60 of the Health Professionals Agreement 2016 (Agreement) which applied to the Applicant in his employment with the Respondent by meeting with all affected employees.50 The meeting was held at Cabrini Malvern. In attendance were Dr Simon Woods, Executive Director of Cabrini Malvern, Mr Kirby Young, Program Director Allied Health and Ambulatory Services, Ms Nancy Davies, People Services Manager, Ms Claire Parks and all Case Managers employed by the Respondent.51
[23] The CMS team consisted of nine employees, eight of whom were nurses and the Applicant, a social worker. 52 Each employee was handed a copy of the Change Impact Statement which attached a list of redeployment positions and a copy of the presentation slides titled ‘Case Management Services at Cabrini’.53 Mr Jody Betzein from Victorian Allied Health Professional Association (VAHPA), the Applicant’s union representative also received a copy of the Change Impact Statement on 4 May 2017.54 The affected employees were notified of the Respondent’s decision to cease the CMS team and the effect it would have on staff.55 All affected employees were provided with a list of potential redeployment positions to which earlier reference has been made. The list was titled ‘Nursing Redeployment Opportunities’.56 The positions available were as follows:
Site | Department and Role | EFT | Grade | Hrly Rate |
Malvern | Hospital Co-ordinator | 0.5 | RNGR5 | $47.67 |
Malvern | ED nurse | 1.0 | GR2Y10 | $39.26 |
Malvern | 1S nurse | 6.0 | GR2Y10 | $39.26 |
Malvern | 4S nurse | 0.9 | GR2Y10 | $39.26 |
Malvern | Day Oncology nurse | 0.6 | GR2Y10 | $39.26 |
Malvern | 3C nurse | 1.0 | GR2Y10 | $39.26 |
Malvern | 2N nurse | 1.0 | GR2Y10 | $39.26 |
Malvern | 3N nurse | 1.0 | GR2Y10 | $39.26 |
Malvern | 4N nurse | 1.0 | GR2Y10 | $39.26 |
| Malvern | ICU nurse | 2.7 | GR2Y10 | $39.26 |
Rehab | Rehabilitation Access Co-ordinator | 0.5 | RN3BY1 RN3BY2 | $41.95 $42.51 |
Malvern | Dementia nurse – Chronic disease and complex aged services | 0.2 | RN3BY1 RN3BY2 | $41.95 $42.51 |
Rehab | 0.7 | PT4 |
Redeployment efforts and consultation
[24] The list did not include possible positions into which the Applicant could be redeployed. In particular there was no position for a social worker identified. Mr Young gave evidence that the rehab position identified at the bottom of the list did not require a physiotherapy qualification and that the position was a team leader role and thus open to anyone to apply. 57 On the face of the list of redeployment positions it was not possible for the Applicant to have known that this position was open to him and further the Applicant’s skills and qualifications are geared towards social work rather than rehabilitation.
[25] The substance of the meeting discussed earlier above was not seriously contested. That the Agreement applied to the Applicant in his employment with the Respondent is also not in dispute.
[26] At the meeting, the Applicant asked Mr Young whether the Respondent could provide him with a list of redeployment positions suitable to his qualifications. Later that day, Mr Young sent the Applicant the following email: 58
“Good afternoon Diego,
In addition to the redeployment options provided today, please note the following which is only available to you, as opposed to other case managers, given your social work background:
Site | Department and Role | EFT | Grade |
Malvern | Social Worker | 2.0 | Grade 1 |
Brighton | Social Worker | 0.6 | Grade 1 |
Regards”
[27] One of the listed available Malvern roles was filled by Ms Elly Mainzer shortly before the information day on 4 May 2017. 59 Ms Whitman says that management had approved the position being filled by Ms Mainzer60 but says that Mr Young may not have distinctly known.61 All that can be said is that the email sent from My Young to the Applicant did not accurately reflect the Malvern positions available to the Applicant for redeployment.
[28] On 5 May 2017 the Respondent circulated the following memorandum:
“Dear colleagues
This is to advise that today the Case Management team were notified that Case Management Services at Cabrini will cease.
The rationale for this decision relates to the changing case mix within acute services and the associated increasing Allied Health presence and Multidisciplinary frameworks across Cabrini. Along with the cessation of Case Management Services at Malvern and Brighton, the proposed change will see a concurrent increase in Social Work and Occupational Therapy hours at these campuses. Cabrini will fully explore the options available for the redeployment of affected employees with the aim for this change to be fully implemented by June 26th 2017.
Your support of our colleagues during this period of change will be appreciated.
If you have any questions associated with this, please do not hesitate to contact us.” 62
[29] On 15 May 2017, Mr Young, Mr Goller, Mr Betzein and the Applicant attended a meeting to discuss the Applicant’s employment. 63 Mr Young’s evidence is that he explained to Mr Betzein the Respondent’s decision to cease CMS was driven by financial pressures.64 Mr Young’s evidence is that he recalls telling Mr Betzein and the Applicant words to the effect of “unfortunately, there are less redeployment options available to Diego because of Diego’s background, being the only Social Worker in Case Management Services”.65 It is not in dispute that Mr Betzein asked whether one of the Grade 1 Social Worker roles available to the Applicant for possible redeployment could be reclassified as Grade 2.66 Mr Betzein also asked whether the Social Worker role at Brighton could be a full-time role because the Applicant did not wish to work at Cabrini Malvern.67 Mr Young and Mr Goller’s evidence is that Mr Betzein indicated that the Applicant did not want Ms Whitman involved in the redeployment process,68 however the Applicant disputes this account and says that Mr Betzein “did not say that”.69
[30] Mr Betzein was not called to give evidence about the conversation and I accept the evidence of Mr Young and Mr Goller not only because they corroborate each other’s evidence but also, as will become apparent below, Mr Goller reiterates the Applicant’s position in an email dated 29 May 2017, the content of which on the evidence appears not to have been disputed by either the Applicant or Mr Betzein. The Applicant produced no evidence that either he or Mr Betzein disputed the content of the 29 May 2017 email at the relevant time. In any event, not a great deal turns on this issue since as will be apparent below the Applicant ultimately expressed an interest for a position at Malvern. However, the expressed reluctance to work at Malvern serves to underscore the Applicant’s views of Ms Whitman and tends to undermine suggestions by the Applicant in his evidence which will become apparent below that he had moved on from his feelings about Ms Whitman as expressed in the 7 November 2016 correspondence.
[31] On 26 May 2017, Mr Young sent an email to all of the CMS employees providing an update regarding redeployment opportunities. Attached to the email was a list of the available redeployment positions. The email also invited employees to attend a morning tea the following week. 70
[32] As foreshadowed earlier in [30] , Mr Goller sent an email to the Applicant and Mr Betzein on 29 May 2017 addressing matters raised in the meeting on 15 May 2017 as follows: 71
“Hi Jody,
Apologies. I have been unwell and away on personal leave.
When we met on 15 May you asked Cabrini to consider the following
• A grade 1 social worker role being full time at Brighton with no rotation.
• Specifically Diego working only at Brighton
• Given his experience the role be regraded to a grade 2.
Cabrini has considered these matters and provides the following response. Brighton does not require a full time grade 1 social worker. There is currently already a 0.4 grade 2 role there, and this requires a grade 1 role to support the clinical service delivery. The grade 1 role will require flexibility, as the occupancy at Brighton has been highly variable, and there may be changes to the number of acute beds requiring servicing. As such, the plan is to have the staff rotating in these positions so they are all comfortable and capable working at both Malvern and Brighton. In addition, given Diego's experience is greater than that of a new graduate, it is likely he would be required at Malvern where the patient case-mix is more complex. Lastly, there is currently no grade 2 vacancy available for redeployment, the departments needs are for grade 1 roles, and we simply can't afford additional grade 2 hours.
Regards
Rob”
[33] On 1 June 2017, Mr Betzein sent an email to Mr Young on behalf of the Applicant expressing interest in the Grade 1 Social Worker position based at Cabrini Malvern and enquiring whether the Applicant had to compete with other internal or external candidates. 72 The email exchanges are as follows:
(Mr Betzein)
“Hi Rob
Thanks for your response. I understand Diego has opted to express interest in the Grade 1 Social Work position on the basis of an understanding that this is a rotating position across side. Could you confirm that Diego will not need to compete with other internal and external applicants for this position on the basis of this constituting a redeployment following redundancy?
regards
Jody Betzein, Organiser” 73
(Mr Goller)
“Hi Jody,
The Cabrini position is that it needs to assess the candidate (Diego’s) suitability for redeployment to the Social Grade 1 role which is based at the Malvern campus. Suitability for appointment will be determined on the basis of appropriate skills and qualifications. Final approval of redeployment will rest with the Executive Director of People and Culture as provided in clause 50 of the EA.
Regards
Rob” 74
[34] This second email neatly avoids the question posed in the first email relating to the need to compete for appointment to the position. As will become apparent, on all of the objective evidence available to me, I consider that the answer to the question posed by Mr Betzein in her email was “yes”, the Applicant would need to compete.
[35] Clause 50 of the Agreement which deals with redeployment relevantly provides as follows:
(a) If an Employee's position is becoming redundant, Cabrini will follow the redeployment process which is as follows: Where the need for redeployment is identified, the following process may be implemented:
(i) Opportunities for redeployment will be offered for volunteers in any area where surplus positions are identified in the first instance, then to specific positions, where volunteers are not forthcoming.
(ii) Suitability for appointment to a redeployment opportunity will be determined on the basis of appropriate skills and qualifications, and/or the capacity of the redeployee to acquire the required skills within a reasonable time frame to effectively occupy the position.
(iii) Assessment of the suitability of the candidate will be made in consultation with the relevant Director/Manager, in consultation with the relevant Executive Director and where skill acquisition is required, the Education or Staff Development Department. Final approval of redeployment will rest with the Executive Director, People and Culture.
[36] On 8 June 2017, the Applicant attended an interview relating to the proposed redeployment to a Grade 1 Social Worker at Malvern. Ms Whitman’s evidence is that she checked with her superior Mr Butler whether it was appropriate for her to interview the Applicant. 75 Her evidence was that Mr Butler reminded her that she was interviewing the other candidates and that she had other impartial people on the interview panel.76 The interview panel consisted of Mr Young, Mr Goller and Ms Whitman. This same group had been part of an interview panel that assessed the potential external candidates for the Social Worker Grade 1 roles, including a part time role based in Cabrini Brighton. A total of three external candidates were interviewed by the panel.77
[37] The Applicant’s evidence is that the interview began with Mr Goller producing a copy of the 7 November 2016 correspondence to Mr Ryan. 78 The relevant parts of that correspondence have been earlier extracted. The Applicant’s evidence is that Mr Goller said words to the effect of “this is from your personal file and I will read out some statements you have made.”79
[38] Mr Goller’s evidence is that he was aware through his discussions with Ms Whitman that the Applicant had responded to a complaint made against him by Ms Vasilopoulos, 80 although it is apparent that Ms Whitman did not see the complaint or know that the complaint also concerned her.81 His evidence is that he found the letter on the human resource computer drive82 because he wanted to understand if there were any issues that would create difficulty in the organisation.83 His evidence is that during the interview he had read some documentation about the incident and after reading the Applicant’s comments in response to the complaint, he was of the view that there would be a “real difficulty” for the Applicant to integrate into the Social Work Team lead by Ms Whitman.84 Mr Goller’s evidence is that he gave the Applicant a copy of the correspondence in the interview and read the highlighted sections to the Applicant. His evidence is that the highlighted paragraphs were of a concern to him and he wanted to give the Applicant the opportunity to comment.85 Mr Goller’s evidence is that he read out the following paragraphs from the letter dated 7 November 2016:
“There is clearly a Campaign / Witch Hunt / Vendetta against me from members of the Social Work Services including the Manager (Mrs. Victoria Whitman).
I do not believe that Mrs, Whitman is the most appropriate person to deal with those complaints as she herself has been the fuel behind the hatred, harassment and bullying behaviour which I have been experiencing from some Social Workers since my departure from this team in June 2014.
Unfortunately as long as the Social Workers’ Manger continues to encourage Social Workers to give me a hard time, this situation would never be likely to improve.
As indicated, some members of the Social Work Services have been framing me since I left their Unit in June 2014.
I am requesting that Cabrini Management treats this matter very seriously and urgently as I do not longer trust nor feel comfortable liaising directly with Angela Ruddock, Efi Vasilopoulos or their Manager (Mrs. Victoria Whitman) without having witnesses around me.”
[39] It is not necessary for me to resolve the disputed evidence about the point at which the above material was raised by Mr Goller during the interview, although I would tend to prefer Mr Goller’s account as it is corroborated by Mr Young 86 and Ms Whitman.87 Moreover, it seems to me unlikely that the issue would be raised at the outset of the interview without the usual pleasantries and ice breaker questions commonly encountered in interviews of the kind. It is not contested that the correspondence was raised. It is also not in dispute that Mr Young and Ms Whitman were advised on the morning of the interview that Mr Goller was going to address the 7 November 2016 correspondence.88 Mr Young’s evidence is that he believed that it was appropriate for Mr Goller to raise the correspondence with the Applicant during his interview as he believed the statements made in the letter “spoke to the heart of the suitability” of the Applicant.89 His evidence is that if a person wants to go into a role within a department that that person has taken issue with in the past, that person should be given the opportunity to respond to ensure that the issues are resolved and that it would not impact his or her ability to fulfil the tasks of that role.90 Mr Goller’s evidence is that in relation to the five extracts that were brought to the Applicant’s attention, the Applicant did not deny or qualify any of the statements.91 This is not in dispute, although as is apparent below the Applicant says his response is to be understood in context.92
[40] The Applicant says that he was shocked and says that it was an outrageous thing to do by a panel against a candidate who had applied and expected to be treated in the same manner as the other candidates. 93 His evidence is that it was highly inappropriate for Mr Goller to bring the letter to the interview.94 The Applicant says that it was inappropriate as the Respondent had never given him the opportunity to discuss the matters raised in the 7 November 2016 correspondence. The Applicant does not dispute that the contents of the correspondence should have been raised with him however, the Applicant says that the manner in which it was put was unfair. Further, the Applicant says that he was not put on notice and was not prepared to answer questions in respect of the correspondence.95 The Applicant also gave evidence that at the end of the interview he said words to the effect of “I think it would have been a lot better for Ms Whitman to have interviewed me with another social worker…”96
[41] Mr Goller asked the Applicant whether he thought that he would be able to work in the team if he still thought the same way about them. Mr Goller’s evidence is that the Applicant said words to the effect of “I do not think it is right that you are bringing this up”. 97 Mr Goller’s evidence is that he said “these comments are relevant because you would like to be redeployed to the team and I would like for you to have the opportunity to explain whether this is still your view about the team”.98 Mr Goller gave evidence that the Applicant’s only explanation was to say that the matter had been resolved by HR and that the file had been closed.99 Mr Goller’s evidence is that he did not think the Applicant’s response was said with conviction and Mr Goller was not convinced that the Applicant’s feelings about the people he now wished to work with in the social work team were resolved.100 I accept Mr Goller’s evidence. He was not seriously challenged in cross-examination about this evidence.
[42] Mr Goller’s evidence is that he was also concerned about the Applicant’s failure to understand the difference between a Grade 1 and Grade 3 Social Worker. Mr Goller was of the opinion that if the Applicant were redeployed to the team, he would continue to perform at a Grade 3 level. Mr Goller gave evidence that when the Applicant was asked whether he would be able to accept supervision from the other employees, the Applicant said that he did not need to be told what to do because of his experience. 101 Mr Goller’s evidence is that the Applicant’s response was indicative of an attitude that could cause real problems to management in the Social Work team.102 I accept Mr Goller’s evidence. He was not seriously challenged in cross-examination about this evidence.
[43] Mr Young’s concerns aligned with that of Mr Goller. Mr Young gave evidence that he had two primary concerns about the Applicant’s application for the role. 103 His evidence is that the Applicant indicated that he would not take direction from Grade 2 or 3 Social Workers because there was no gap between his skills and those of a Grade 3 and that he would act as a mentor to the other team members.104 Mr Goller’s evidence is that he too was concerned about the Applicant’s ability to work at a Grade 1 level and assist the team effectively and the Applicant’s prior interpersonal conflict with the Social Work team given he had said some “remarkable” things about the team.105 His evidence was that he did not believe the Applicant had resolved the issues that existed between the Applicant and the Social Work team.106 I accept this evidence. At the conclusion of the interview, Mr Young sent Mr Goller a summary of his assessment on the Applicant’s suitability for redeployment. In his summary, Mr Young concluded that the Applicant was not a suitable candidate for redeployment to the Grade 1 position.107 His note to Mr Goller was as follows:
“Interview 4: Diego (08/06). In attendance RG, TW, KY.
Note: internal applicant seeking redeployment from case management role.
Diego states that he loves his work at Cabrini – particularly the interaction with patients and their families. He noted that relative to his options at the moment, he would prefer to work (at a grade 1 level) than not, and that he is passionate about social work. It was highlighted that there have been documented issues between Diego and some social work members. Diego noted that the reason he left SW was due to a VCAT case that went poorly and impacted him significantly. This was in 2014. When asked how Diego hopes to work in the social work team, after the recent issues, he answered that he felt because the case was closed by HR, that the situation was resolved. He stated that he was assured by HR that there was no vendetta against him, and in the interview, he noted that he has accepted this to be true. Although subjective, I don’t feel that Diego answered the question, and only spoke to the case being closed, not that he himself had moved on. Diego had also mentioned in the recent union meeting that he was unwilling to work at Malvern. When asked about this in the interview, he noted that he thought it would be ok. He provided no more reassurance of this, and although promoted twice, did not answer the question other than to state that he would now need re-orientation as things would have changed since 2014. When asked further about the relationship with social work at Brighton, Diego felt the relationship was ok, and that he was surprised when complaints were raised. He did only acknowledge an ok relationship with 2 social workers at Brighton (named) even though he worked with 4 during his time there.
Some standard questions relating to Diego’s clinical competence were not required as he is known well to both TW and KY. Diego was not able to identify any key issues relevant to the role (question 5) other than responding to referrals on time. When prompted about the recent changes to case management, he demonstrated that he didn’t see a distinction between the CM and SW roles. This concerns me, as given the change process, I am worried Diego would continue in a case management work style if successful in this role. He did note that education was required for the wards regarding the roles of allied health, and highlighted a concern for OT. Again, as he is known to the panel, TW and KY felt comfortable with his knowledge of LOS management (Q6). Time management was raised as a concern, and Diego noted that he had been criticised for this in the past. He felt that he was doing the best thing for the clients, and was aware that he worked too many hours regularly. He felt it was TW’s responsibility to manage this, and to escalate it to management. When asked about supervision, and the key selection criteria which was not adequately addressed in his CV, Diego was only concerned about policies and procedure. He demonstrated no desire to be supervised or to take direction, in fact he was keen to provide direction and empowerment to other grade 1s, and told TW that she would need to best utilise his skills, and that she needed to be fair with him. He acknowledged that even though he would be a grade 1, that he did not see a gap between himself and the grade 3s.
In summary, although Diego certainly has adequate experience and qualifications, I was not satisfied that he is suitable for this role. The letter introduced to the meeting by RG outlining Diego’s discontent for the SW department, and conviction that they had a vendetta towards him, raises serious concerns regarding his capacity to safely integrate back in to the SW team. I think appointing him would be inappropriate, and poses a risk to both his health, and that of the other SW’s. He was not able to demonstrate that he can appropriately manage conflict, and chose to highlight his conflict with Effie and Marlena when asked about conflict management. He also demonstrated an external locus of control relative to the outcome, however didn’t feel HR should have been involved. He also acknowledged he had issues with other SW’s. Lastly, Diego also avoided key questions regarding the resolution of issues, and how he would be able to cope working at Malvern”. 108
[44] During cross-examination, Mr Young gave evidence going to the heart of the Respondent’s concerns about the Applicant’s suitability for redeployment to the Social Worker Grade 1 position at Malvern. As is apparent in the evidence extracted below, the areas of concern were two fold; the first related to the Applicant’s capacity to adapt to functioning at a much lower grade than his role at Brighton and the second related to his capacity to work with the social work team and Ms Whitman, given the history of the conflict. Mr Young’s evidence was:
“What was it from your point of view about my client's application that made him unsuitable for the position at Malvern?---The two primary things that I considered when considering Diego for that position - his level of experience as a social worker, some 15 years. The role that we were recruiting for was the equivalent of a graduate position and in my time in health operations, I never considered someone of that sort of level of experience for a graduate role. I recognise that Diego certainly had the skills and qualifications to meet the requirements for a grade one social work role. But grade one social worker roles for us, are 90 per cent clinical. They take direction and they are under the supervision of either grade twos or grade threes. They perform the more basic tasks of a social worker and during the course of the interview, we asked questions around Diego's willingness to take supervision and direction and I wasn't satisfied that he was willing to take that supervision and direction. He saw of himself more as a mentor for the team. Secondly, I was aware of the conflict between Diego and the social work department. Because it was a professional issue, I deal with operations, I wasn't involved in the intimate details of that conflict, but I had had meetings with Diego and social workers in the past at Brighton and during the course of the interview we wanted to assess whether we felt that Diego had moved on from those issues and they were resolved issues. Again, it wasn't my feeling that they were resolved issues for Diego and I was concerned around his suitability going into that team when he had said some pretty remarkable things about that team and we'd been dealing with some interpersonal conflicts between Diego and different members of the social work team at Brighton.” 109
[45] Ms Whitman’s evidence is that she too held grave concerns for the Applicant’s ability to follow directions as a Grade 1 and whether the Applicant would be able to adapt to performing a lower role in the social work team. 110 Her evidence is that the Applicant’s response demonstrated a lack of awareness of the need to work in a team environment. Ms Whitman gave evidence that the Applicant’s responses caused her to lose significant confidence in the Applicant and his ability to perform at the Grade 1 level.111 Ms Whitman also prepared notes regarding the interview.112 The notes prepared by Mr Young and Ms Whitman revealed that each of them held similar concerns about the Applicant’s suitability with that of Mr Goller.113 The note prepared by Ms Whitman is extracted below:
“Diego Velasquez…Not Suitable
Known to the Manager of SW from previous SW employment and also from case management position he currently holds at Cabrini Brighton.
Presents with sound knowledge of social work role in the hospital setting, and extensive understanding of the tasks involved in the position, given his previous experience in the dept. as a snr social worker. But did not demonstrate clarity with the differences and professional boundaries between this and the case management role he is currently working in. This has previously lead to tension [sic] and sometimes conflictual uncooperative behaviour where other SW staff have reported feeling intimidated.
His current role of case management has previously caused boundary issues and conflict with social work practices and this is a concern for me in respect to his toleration of differences and capacity to be collaborative. His past history with SW in these instances has included behaviours whereby he is dictatorial and forceful where there are different opinions regarding care plan actions. When this has been addressed in recent times he has shown no insight to his behaviour and no intention of resolving the conflict.
This very comprehensive work approach which Diego clearly demonstrated, previously lead [sic] to a time management issue in both his previous SW and his case management role. This has in turn led to complaints about the workload. He did not demonstrate any change to his work approach therefore I would think similar problems will occur.
Demonstrated limited understanding and acceptance of the different responsibilities and accountabilities between grade 1 and snr grades. Expressing the view all staff work together implying doing the same level of responsibility. This concerns me in regard to adhering to the supervision policy and accepting the appropriate grade limitations in the role. Diego also previously held the position of manager (in another hospital) and I saw his behaviour and tone in our discussion staying in that role at times in the interview which also will be challenging for him when at times he will need to take direction or asked to do things differently to how he would want.
Aspects of this previous complaints and conflicts with SW staff and manager were discussed and his understanding of these and their resolution differs greatly from my perception as Manager involved in them. This difference in perception concerns me in regard to causing possible underlying tension within the relationships of the team and perhaps lead to undermining behaviours towards my leadership management decisions.” 114
[46] I accept the evidence given by Mr Goller, Mr Young and Ms Whitman summarised in [41] – [45] above.
[47] During cross examination, the Respondent’s Counsel put to the Applicant that he could have used the opportunity in the interview to explain why he wrote the letter and that the Applicant could have apologised about the language he used. 115 The Respondent’s Counsel also put to the Applicant that he could have expressed his enthusiasm and desire to work in the team but failed to do so.116 The Applicant says that he was “taken aback” about being confronted with the correspondence however, the Respondent maintains that the Applicant did not say any of the above because he still maintained those opinions.117 I do not accept that the Applicant did not maintain those opinions for the following reasons. First, the Applicant maintains during his cross-examination that he has evidence118 to prove the allegations he made. This strident justification of an opinion earlier held seems to me inconsistent with the conduct of a person who no longer maintains the earlier opinion or has moved on from it. Secondly, the Applicant has earlier given evidence that although Mr Butler had advised him the matters raised in the 7 November 2016 correspondence had been resolved, the Applicant did not agree.119 Thirdly, the Applicant had more than several days after the interview to reflect on the discussions which took place and at not stage did the Applicant make any effort to contact a member of the interview panel to discuss the issues raised any further, to recant, to clarify or to apologise. The absence of any such step is in my view, consistent with a person holding onto rather than letting go of, the opinions expressed in the 7 November 2016 correspondence. Fourthly, as earlier indicated the Applicant’s reluctance to initially consider the Malvern role is inconsistent with the conduct of someone who has moved on from the view so shortly expressed only six or so months earlier.
[48] It is not in dispute that none of the Applicant’s referees attached to his application were called. 120 Mr Young’s evidence is that the interview panel did not feel that it needed to seek any advice from references.121
[49] On 19 June 2017, the Applicant met with Mr Goller and Mr Young to discuss the outcome of the interview. Mr Goller prepared a letter on behalf of Ms Whitman (as she was on leave 122) which explained some of the reasons why the interview panel did not consider the Applicant to be suitable for redeployment.123 A copy of the letter was provided to the Applicant during the meeting.124 The letteris as follows:
“…
Cabrini has decided that whilst you are qualified for the role, you do not have some of the appropriate skills essential to perform the role of Social Worker Grade 1 Clinical and would not be a good fit for the roles. Cabrini has decided not to appoint you to these redeployment opportunities for the reasons set out below.
1. The interview panel concluded that you would struggle to accept direction if appointed to a Social Work Grade 1 position, being a significantly more junior role than your current role. This key selection criteria was not adequately addressed in your application and you were only concerned with following policies and procedures. You expressed no desire to be supervised or take direction. In fact you were keen to provide direction and empowerment to other Grade 1’s and you told me I would need to best utilise your skills.
2. You were not able to demonstrate a conflict management skill to the satisfaction of the panel and you gave no example from your professional life of being able to do this effectively.
3. You were not able to identify many key issues relevant to the role other than responding to referrals on time. You indicated that you didn’t see a distinction between case management and social work roles. The panel concluded that you would continue with your case management style rather than working as a Social Worker Grade 1 under direction.” 125
[50] The letter indicated that the Respondent would continue to work with the Applicant to find a suitable redeployment opportunity until his last scheduled day of work on 23 June 2017. 126 It is not in dispute that no other suitable job, duties or other work to which the Applicant could be redeployed were subsequently identified.
[51] A number of things must be said about the process adopted by the Respondent in relation to the so-called redeployment opportunity available to the Applicant in respect of the Social Worker Grade 1 position at Malvern. First, it is apparent from the evidence that the Applicant was interviewed for the position along with other candidates who were not potential redeployees to the position. This seems to me to be inconsistent with the notion of redeployment. Redeployment involves the transfer of an employee, relevantly in the case of redundancy, from a job which the employer no longer requires to be performed by anyone, into another job, duties or other work for which the employees suited by reason of, inter alia, qualifications, skill, experience and competence. Redeployment will not usually involve competition for a position by the employee affected by the redundancy as against other candidates who are not so affected. If that were the case redeployment obligations, where they exist, would amount to no more than a right or invitation to apply for a vacant position.
[52] It appears to me that clause 50 of the Agreement, which sets out the Respondent’s obligation in relation to redeployment, is consistent with my description of redeployment in the context of a redundancy. The clause begins by requiring that opportunities for redeployment will be offered to volunteers in the first instance and then redeployment to specific positions where volunteers are not forthcoming. No such offer was made to the Applicant in respect of redeployment to the Social Worker Grade 1 position at Malvern. Any such offer or any voluntary redeployment appears to be constrained by the two conditions. First, general suitability assessment described in clause 50. Secondly, redeployment is subject to final approval by the Executive Director, People and Culture.
[53] Nothing in the scheme of clause 50 suggests that an employee who is engaged in the redeployment process set out in clause 50 is treated as no more than an applicant for a vacant position and considered in competition with other applicants who are not subject to redeployment for the vacant position. It appears to me however that this is exactly what happened in relation to the Applicant and the potential to redeploy of the Applicant to the Social Worker Grade 1 position at Malvern. That he was considered as part of a field of contenders for a vacancy appears to me to be inconsistent with the scheme in clause 50 of the Agreement. That the Applicant was treated in the same way as any other candidate is apparent from the process undertaken and from Ms Whitman’s own evidence that, notwithstanding her past dealings with the Applicant, she was advised by Mr Butler that it was appropriate for her to interview the Applicant because she was also interviewing other candidates and that she had other impartial people on the interview panel. 127
[54] Secondly, the decision by Ms Whitman to participate in the interview of the Applicant given their past history, and the advice that she received to continue was in my view ill-advised in the case of Ms Whitman and poor in the case of the advice. In any event, once it became clear that Mr Goller was proposing to put to the Applicant the content of the Applicant’s correspondence of 7 November 2016, which was highly critical of Ms Whitman, it ought surely have been apparent to her that continuing to participate in the interview process was inappropriate.
[55] Thirdly, I agree with the Applicant that it was unfair to him to have been quizzed about the content of the correspondence, about which the Respondent had done nothing until raising it with the Applicant during the interview, without prior notice. It was all the more so unfair because he was quizzed about it and required to respond in the presence of the very protagonist about whom he had made serious allegations. That Ms Whitman’s position as a member of the interview panel was plainly compromised is underscored by the advice that she received from Mr Butler, inter alia, that she had “other impartial people” on the interview panel. Self-evidently that Mr Butler would point to the fact that there were “other impartial people” on the interview panel suggests that she was not, or at least perceived as not being, impartial.
[56] Fourthly, that the Respondent did nothing about the allegations concerning Ms Whitman contained in the correspondence prior to Mr Goller raising them with the Applicant during the interview was itself very ill-advised since it allowed the allegations to fester without resolution and without bringing them to the attention of Ms Whitman. Putting to one sid the veracity of the matters raised by the Applicant in the correspondence, the correspondence demonstrated that there was a serious relationship problem between the Applicant and Ms Whitman which required attention and corrective action, but plainly nothing was done.
[57] However, it does not follow from the above, flawed as the process seems to have been, that it would have been reasonable to redeploy the Applicant into the Social Worker Grade 1 position at Malvern. I will expand on this later in these reasons.
Consideration
Legislation
[58] Section 389(1) of the Act sets out the meaning of genuine redundancy and provides that a dismissal was a case of genuine redundancy if:
● the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise (s.389(1)(a)); and
● the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy (s.389(1)(b)).
[59] Section 389(2) of the Act contains an exception to that which would otherwise fall within the definition of genuine redundancy and provides a person's dismissal is not case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
● the employer’s enterprise; or
● the enterprise of an associated entity of the employer.
"Associated entity" has the meaning given by section 50AAA of the Corporations Act 2001.
[60] The exception in s.389(2) has sometimes been described as creating an obligation for an employer to redeploy or to consider to redeploy. 128 In my view, it does no such thing. However, where an opportunity to redeploy into a job, position or other work exists and it would have been reasonable in all the circumstances for an employee affected by redundancy to be redeployed, but the employee was not so redeployed, the exception operates so that a dismissal of an employee which would otherwise have been a genuine redundancy by reason of s.389(1) is not a case of genuine redundancy because redeployment of the employee within, relevantly the employer’s enterprise, would have been reasonable in all the circumstances.
Was the Applicant’s job no longer required to be performed by anyone?
[61] A job is a collection of functions, duties and responsibilities assigned, as part of the scheme of the employer’s organisation, to a particular employee. 129 Functions, duties and responsibilities may cease to be part of an employee’s job through a reorganisation or redistribution of duties, so the question then is whether the employee has any duties left to perform or discharge.130 When there is no longer any function or duty to be performed by an employee, his or her position or job becomes redundant131 or, put another way, the employer no longer requires that employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.
[62] An employee’s dismissal may be a case of genuine redundancy even though there are aspects of the employee’s duties still being performed by other employees. 132 In the case of an organisational restructure or downsizing, the question will be whether the previous job has survived the restructure or downsizing, not whether the duties have survived in some form.133 It is a question of whether the employee’s ‘job’ is no longer required to be performed by anyone, rather than the employee’s ‘duties’.134
[63] It is not in dispute that the Respondent no longer required the Applicant’s job to be performed by anyone 135 and on the basis of the evidence earlier discussed I am satisfied that the Respondent undertook an organisational review out of which it decided that case management functions were no longer required. It decided that the CMS team was not a necessary service to the Respondent because of its increase in salaried Allied Health Services employees within Acute Allied Health over the last four years.136 The increase to Cabrini’s Health Allied Health Services had resulted in the reduction of the CMS function, which previously held responsibility for coordinating functions for and after discharge, including those tasks within the Allied Health Services. The decision to cease operating the CMS team was also made in response to a cost-saving initiative led by the CEO, Dr Michael Walsh.137 I am satisfied that the Respondent identified the Applicant’s job as no longer being required to be performed by anybody and that this was as a consequence of changes in the operational requirements of the employer’s enterprise, brought about by the organisational review undertaken by the Respondent. The Applicant’s job was one of a number no longer required by the Respondent to be performed by anyone.
Did the Respondent comply with any consultation obligations?
[64] Turning next to consider whether the Respondent was obliged by a modern award or enterprise agreement to consult with the Applicant about the redundancy prior to the dismissal, and if so whether the Respondent complied with such obligation.
[65] As was outlined in [22] above, theAgreement covered the Respondent and the Applicant, and applied to them at the relevant time. In summary, the consultation provision of the Agreement placed an obligation on the Respondent to:
● notify the Applicant of the decision to introduce the major change;
● discuss the introduction of the proposed change with the Applicant and his representative;
● discuss the likely effect the change will have on the Applicant;
● measures that will be taken to avert or mitigate the consequences of such change; and
● provide, in writing, for the purposes of the discussion, all relevant information about the change, and the expected effects on relevant employees. 138
[66] The Respondent contends that at all times and stages it consulted with the Applicant and the Applicant’s union, the VAHPA, as required by the Agreement. 139 It maintains that it did so as soon as practicable after making the decision and that there is no obligation to consult an affected employee of the possibility of a major change or significant restructure.140 In summary, the Respondent contends that it fulfilled its obligations under the Agreement for the following reasons:
a. the Respondent met with the Applicant and other affected employees on 4 May 2017 to notify them of the change in accordance with clause 60(b) of the Agreement;
b. the Respondent issued a Change Impact Statement, a powerpoint presentation, a letter to affected employees advising of available positions dated 4 May 2017 to the Applicant and his representative, in addition the Respondent relies on the email sent to the Applicant providing additional redeployment positions; 141
c. the Applicant and the VAHPA met with Mr Young and Mr Goller on 15 May 2017 to discuss the nature of the restructure and the impact on the Applicant in accordance with clause 60(c) and (e) of the Agreement. Mr Goller followed up the matters raised in the meeting by email dated 29 May 2017; 142 and
d. the Respondent sent an email to all affected employees providing an update regarding redeployment opportunities. Attached to the email was a list of the available redeployment positions. The email also invited employees to attend a morning tea on 1 June 2017 to discuss any outstanding issues. 143
[67] The Applicant contends in its written submissions that there are a number of obligations within the Agreement which the Respondent failed to meet and that consequently, the Respondent did not comply with s.389(1)(b) of the Act. In summary, the Applicant contends that the Respondent failed to comply with its obligations in the Agreement concerning consultation. 144 The following is a summary of his submissions:
a. the Respondent was in breach of its obligations under clause 60 of the Agreement when it failed to consult the staff at its Malvern and Brighton sites; 145 and
b. its decision to declare the case manager’s positions redundant was directive and not consultative. 146
[68] Further, the Applicant submits that there was no consultation with the case managers themselves nor the consultant physicians nor nurses nor ancillary staff. 147 The Applicant says that the case managers were simply told at a group meeting that their positions were no longer available.148 During the proceeding, the Applicant sought to rely on witness statements, inter alia, of nurses, a neuropsychologist, a pastoral practitioner, a doctor, physiotherapists, who spoke to the Applicant’s work ethic and the alleged ‘mala fides’.149
[69] In summary, Doctor Leon Chapman is a Doctor (Fellow of the Royal Australasian College of Physicians) at the Respondent’s Brighton facility. His evidence is that the Applicant is an efficient, professional and well-mannered case manager. 150 His evidence is that the Applicant has put in many hours and has been an active contributor to multidisciplinary meetings.151 Dr Chapman’s evidence is that he was not consulted about the decision to abolish CMS.152 Ms Maggie Sim, is an Associate Nurse Manager at the Respondent’s Brighton facility. Her evidence is that the Applicant carried out his role as the only complex case manager to the highest standard153 and that he had great attention to detail and exceptional documentation skills.154 Mr Jose Matthew, was a qualified Pastoral Practitioner at the Respondent’s Brighton facility up until August 2017. His evidence is that the Applicant is very knowledgeable and efficient at his work and that the Applicant has always shown great commitment to promote and ensure the safety and well-being of individuals and families that are referred to him.155
[70] Doctor Caroline Meyer was an Endocrinologist at the Respondent’s Brighton facility for three years, and Elizabeth Eadie was a Registered Nurse at the Respondent’s Malvern facility, both gave evidence attesting to the Applicant’s work ethic. 156 Ms Gale Kiteley is a Registered Nurse at the Respondent’s Brighton facility said that the Applicant’s knowledge and professionalism and attention to detail was constantly displayed.157 Ms Treena Cooper, a Nurse Manager at the Respondent’s Brighton facility she said that the Applicant’s knowledge and resources of the complex aged care system and his knowledge of the community helped within the team immensely.158 Ms Anna Asa, a Clinical Nurse Specialist at the Respondent’s Brighton facility, also gave evidence about the Applicant’s work ethic.159 Ms Moya Beattie is a Clinical Nurse Specialist at the Respondent’s Brighton facility. Her evidence spoke to the Applicant’s positive impact on patients and their families.160
[71] Ms Megan Perrett, a former Physiotherapist at Brighton and Ms Libby Freedman a Physiotherapist at the Respondent’s Brighton facility also gave evidence. Ms Perrett’s evidence is that the Applicant always demonstrated fantastic communication skills, and has proven to be a very strong advocate for the patient and their needs throughout their entire hospital admission. 161Ms Freedman said that the Applicant would be an asset to any hospital.162 Ms Leone Mornane a Registered Nurse at Brighton said that the Applicant carried out his duties in a diligent and efficient manner.163 Associate Nurse Unit Manager at the Respondent’s Brighton facility, Ms Judith Marci gave evidence that the Applicant was a very hard working individual and was very professional and personable to work with.164 Lastly, Ms Jan Ewing a Neuropsychologist and Mr Martin Harris a Mental Health Consultant appear to not have been employed by the Respondent but have had interactions with the Applicant as their mother was one of the Applicant’s patients in late 2015. They gave evidence that the Applicant was the social worker/case manager for their mother’s admission to Cabrini Brighton. Their evidence is that the Applicant was very professional and compassionate throughout the process of their mother’s admission, discharge and post-discharge.
[72] The Respondent did not wish to cross-examine any of the Applicant’s witnesses and objects to the evidence on the grounds of admissibility. 165 The Applicant says that Dr Chapman was instrumental in setting up the complex case management role in which the Applicant was employed and says that Dr Chapman should have been consulted about the redundancy.166
[73] The Respondent maintains that Dr Chapman is not a relevant employee within clause 60 with the Agreement. 167
[74] The Respondent submits that at no point during the consultation period did the Applicant or the Applicant’s representative raise any concerns with the process undertaken by the Respondent. 168 It says that there was no application made to the Commission about a dispute.169
[75] In so far as the evidence summarised above suggests that the Applicant was an effective, compassionate and professional social worker in his role as a Complex Case Manager at the Respondent’s Brighton facility, that is accepted. Indeed, the Respondent was not heard to suggest to the contrary. It is also not controversial that the Applicant possessed the necessary skills, competency and experience to carry out the duties of a Grade 1 Social Worker. Indeed he was well and truly over qualified for the role. The central issue however is whether the redeployment of the Applicant to that position would have been reasonable in all the circumstances. The evidence speaks to his suitability in the sense that he was an effective practitioner and qualified for the position. This evidence was in many respects unnecessary since that proposition was not contested. Indeed, the Respondent’s letter to the Applicant of 19 June 2017 accepts that the Applicant was qualified. In any event, this evidence speaks to only one of a number of relevant circumstances about which account must be taken.
[76] As to the absence of consultation with others evidence, I agree with the Respondent’s submissions that that evidence is not relevant to the question of consultation under the Agreement. As to the mala fides point, the evidence about the absence of consultation with others without more, is for the reasons given further below, an insufficient basis to infer, let alone to conclude, that the decision to cease operating the CMS team and to make the Applicant’s position redundant, was attended by mala fides.
[77] Respectfully, the Applicant’s submissions as to consultation misunderstand the operation of clause 60 of the Agreement and the scope of those obligations, limited as they are to the Respondent and “relevant Employees”, that is employees meeting two criteria. First, that they are employees of the Respondent to whom the Agreement applies. Second, that they are employees who are likely to be affected by a decision to introduce major change. It is not to the point that employees to whom the Agreement did not apply were not consulted about the change. Nor is it to the point that employees to whom the Agreement applies but who are not affected by the decision, in the sense that the decision to introduce major change is not likely to have a significant effect (within the meaning of clause 60(g) of the Agreement) on those employees, were not consulted. Thus, the evidence relied upon by the Applicant suggesting that employees, 170 who themselves are not covered by the Agreement, or those covered were not affected by the decision, were not consulted about the decision to cease operating the CMS team is simply not relevant.
[78] Moreover, to the extent that the absence of such consultation is said to show or support the contention that the decision was affected by mala fides, I disagree. That persons who might have an interest in the ongoing operation of the CMS team were not consulted discloses no more than that. The Respondent had no legal obligation to consult these people and it is thus unsurprising that it did not do so. Whilst it might have been desirable to consult more widely, that the Respondent did not, without more, does not in my view speak to mala fides. Therefore there is no proper basis to conclude or to draw an inference that a failure by the Respondent to do something that it was not legally obliged to do in giving effect to its decision to cease operating the CMS team, evinces mala fides. To the extent that it suggested that Ms Whitman’s participation in the interview process adds to the mala fides contention, I disagree. In my view, her participation was the product of poor judgment and bad advice. Moreover, had she not participated in the interview, the issues concerning the Applicant’s relationship with and views of Ms Whitman would have been raised nonetheless as they were plainly relevant to the assessment the Respondent needed to make as to the Applicant’s suitability for redeployment to the Grade 1 Social Worker position at Malvern. Moreover that Ms Whitman sought out advice about her participation also points away from any mala fides inference.
[79] The Applicant’s submission that the decision to declare the Applicant’s position redundant was directive and not consultative, also misunderstands the operation of clause 60. The decision to cease operating the CMS team was a decision to implement “major change”. That decision must be notified to affected employees in writing as soon as practicable after it is made. That was done. There is no obligation to consult about the decision before the decision is made. Consultation is directed to explaining the change, the impact of the decision on affected employees and measure to mitigate the effect. On some occasions, consultation might result in a different decision being made to the one which triggered the requirement to consult. However, in the instant case there is no suggestion that the Applicant raised or proposed a different or modified decision or that the Respondent refused to consider any such proposals. The cessation of the CMS team and the consequent abolition of positions in the team, is one in the same decision. The obligation to consult is about the change, including about the steps which may be taken to avert or minimise the impact on the Applicant consequent of the Complex Case Manager position having been abolished by reason of the decision.
[80] As is evident from the terms of clause 60 of the Agreement, the consultation obligations commence with a requirement that the Respondent notify relevant employees of the decision to introduce the particular major change. As soon as practicable after making the decision, the Respondent must discuss with relevant employees and their representatives the reasons for the introduction of the change, the effect the changes are likely to have on the employees, and measures the Respondent is taking to avert or mitigate the adverse effect of the change on employees. For the purposes of the discussion to which reference has been made, the Respondent is required to provide in writing to relevant employees, information about the change including the nature of the change proposed, information about the expected effects of the change on the employees, and any other matter likely to affect the employees. There are usual encountered exclusionary provisions (often consulted in industrial instruments dealing with the reasons) relating to the provision of information where provision of information would disclose confidential or commercially sensitive information also condition the extent of consultation.
[81] During the discussions, the relevant employees and their representatives are able to raise matters and the provisions of clause 60 require the Respondent to give prompt and genuine consideration to such matters as are raised about the major change. There is no suggestion that the Applicant was not able to raise matters or that matters he raised were not considered by the Respondent.
[82] There is no dispute that the decision to cease operating the CMS team was a major change within the meaning of clause 60(a)(i) of the Agreement and that the major change was at the relevant time likely to have a significant effect on employees who were members of the team (including the Applicant) within the meaning of clause 60(g) of the Agreement.
[83] On the basis of the evidence to which earlier reference was made, I consider that the Respondent fulfilled its consultation obligations under the Agreement to consult the Applicant about the redundancy for the following reasons:
a. the Respondent met with the Applicant and other affected employees on 4 May 2017 to notify them of the change in accordance with clause 60(b) of the Agreement; 171
b. the Respondent issued a Change Impact Statement, a powerpoint presentation, a letter to affected employees advising of available positions dated 4 May 2017 to the Applicant and his representative, in addition the Respondent sent an email to the Applicant providing additional redeployment positions; 172
c. the Respondent sent an email to all affected employees providing an update regarding redeployment opportunities. Attached to the email was a list of the available redeployment positions. The email also invited employees to attend a morning tea on 1 June 2017 to discuss any outstanding issues; 173
d. the Respondent sent an email to the Applicant on 4 May 2017 outlining the additional positions available to him; 174
e. the Applicant and his union representative met with Mr Young and Mr Goller on 15 May 2017 to discuss the nature of the restructure and the impact on the Applicant in accordance with clause 60(c) and (e) of the Agreement; 175 and
f. Mr Goller followed up the matters raised in the meeting by email dated 29 May 2017. 176
[84] Clause 60 of the Agreement appears to me to be the only provision in the Agreement that contains any obligation to consult about the redundancy. On the evidence summarised above, I am satisfied that the Respondent complied with its obligation under clause 60 of the Agreement to consult the Applicant about the redundancy.
Was it reasonable in all the circumstances for the person to be redeployed?
[85] As earlier indicated, s.389(2) of the Act operates as an exception to the definition of genuine redundancy in s.389(1). In determining whether the exception operates, it will be necessary to consider whether at the time of a person’s dismissal it would have been reasonable in all the circumstances for the person to be redeployed, relevantly in this case, within the Respondent’s enterprise. The issue whether redeployment of an Applicant within the Respondent’s enterprise would have been reasonable will turn upon a consideration of all the relevant circumstances existing at the time of the dismissal. 177 Determining whether redeployment was reasonable in all the circumstances raises for consideration a number of matters, including:
• whether there is a job, position or other work into which the applicant could have been redeployed; 178
• the nature of any available job, position or other work;
• the qualifications and skills required to perform the job, position or other work;
• the applicant’s skills, qualifications and experience;
• the location of the job, position or other work 179; and
• the remuneration which attaches to the job position or other work. 180
[86] It seems to me also to be relevant:
• the likely impact of redeploying a person into a job, position or other work on the cohesiveness of a work group and its efficiency and productivity because of the relationship that the person has, or has had, with prospective co-workers or supervisors; and
• whether rather than fill a vacancy by redeploying an employee into a suitable job, position or other work in its own enterprise, an employer advertised the vacancy and required the employee to compete with other applicants for the vacancy. 181
[87] As to the issue whether it was reasonable for the Respondent to redeploy the Applicant, the Respondent contends the following matters are relevant to the assessment:
a. the Applicant had a history of conflict and poor quality interactions with Ms Whitman, the Applicant was openly critical of his manager and had, in the past, demonstrated hostility towards her. Ms Whitman was based at Cabrini Malvern and would occupy the role of senior manager if the Applicant were redeployed to a Grade 1 social worker role; 182
b. the Applicant had a history of hostility and conflict with at least two female co-workers in the social work team at Malvern. There had been complaints and counter-complaints and an investigation; 183
c. on 15 May 2017, the Applicant attended a meeting to discuss redeployment. He proposed a social worker role at Grade 2 level. He made it clear that he did not want to return to the Malvern campus but preferred a Grade 2 position at Brighton. There was no such position on offer; 184
d. on 8 June 2017, the Applicant was interviewed and his answers to certain questions portrayed an attitude where he maintained either an antagonistic, or indifferent, attitude to Ms Whitman and was unlikely to act within the confines of the Grade 1 role, but rather beyond it; 185 and
e. break down of trust in the relationship between the Applicant and Ms Whitman after the VCAT incident. 186
[88] I accept that the matters referred to in a, b, c, d and e are not only relevant but, in my view taken together are significant in the assessment.
[89] Further, the Respondent says that the Applicant had not moved on from his November 2016 opinions through to April 2017, 187 and that where the Applicant suggests otherwise, the Respondent says he lacks candour.188 The Respondent submits that it is untenable for the Applicant to contend that he would work with Ms Whitman at the Malvern campus. It says that the Applicant could not do so because of the broken down relationship with Ms Whitman and the nature of the November 2016 opinions.189
[90] The Applicant contends that the Respondent has not complied with its obligations under the Agreement in relation to redeployment and submits that the decision making process was tainted with mala fides. 190 The Applicant makes good its arguments concerning redeployment as follows:
a. the Applicant was eminently qualified to fill the full-time position, he says that he was in fact over qualified and that that is no bar for him being offered the position; 191
b. the Applicant should have been provided in advance any criticism of him; 192
c. the Applicant was denied procedural fairness in relation to allegations made against him when he was interviewed about possible redeployment because he was unaware of them; 193
d. the decision not to redeploy the Applicant arose out of a personality clash with Ms Whitman rather than the operational requirements of the Agreement; 194
e. the decision had been made in November when Ms Whitman decided that the Applicant was not suitable; 195 and
f. the restructure was an opportunity to remove a person with whom Ms Whitman had personal issues. 196
[91] The Applicant’s submission as to mala fides is simply not made out on the evidence. Although, for the reasons earlier given, the Respondent’s conduct of the redeployment process, so far as it concerns the Applicant, does not appear consistent with clause 50 of the Agreement, it nevertheless appears to me that a relevant assessment was carried out as to the Applicant’s suitability for redeployment. It is not any less so because it was conducted in the context of an interview for a vacant position for which others were competing. Critical to the operation of clause 50 is the assessment. This was carried out. In the any event compliance with clause 50 is but one of the circumstances to which must have regard in determining whether it was reasonable in the circumstances to redeploy. The matters raised by the Applicant and summarised above do not support a conclusion that the decision making process was tainted by bad faith. The first matter summarised at [90] is not disputed. I agree with the second matter. As to the third, the Applicant was caught by surprise but was not denied procedural fairness. He was given an opportunity to respond and he could have but did not use the nearly two week period after the interview and before the meeting on 19 June 2017 to reflect on the 7 November 2016 correspondence and to explain, clarify, contextualise, recant and/or apologise. He did none of this. He had ample opportunity to respond.
[92] The fourth matter summarised at [90] is not supported by the evidence. The proposition was not put to Ms Whitman (the decision maker) and Mr Young’s answer to the proposition put to him shows, the descriptions is overly simplistic. Mr Young’s evidence was:
“It was very much a 1, the reason for not redeploying him. Is that correct?---I don't know whether personality is the word I would use, but it was certainly around the fit in the team. Based on the previous grievances, it wasn't felt that that fit would be appropriate.” 197
Moreover, the best evidence of the state of the relationship is contained in the Applicant’s own words in his 7 November 2016 correspondence. To suggest that this was a mere personality clash is to ignore the serious level of distrust and lack of respect the Applicant apparently had for Ms Whitman as evident in the correspondence. The description also ignores the potential impact of such a poor relationship on the effective and orderly functioning of the team, over which Ms Whitman had managerial control and into which the Applicant sought to be redeployed. The fifth matter summarised in [90] finds no support in the evidence. Further, the submission lacks substance. It is not clear on the evidence how a submission that the decision not to redeploy the Applicant would have been made in November can be made. It is however not in dispute that Ms Whitman made the decision in consultation with Mr Goller and Mr Young. 198
[93] The last matter summarised in [90] is mere supposition and it would seem that on the Applicant’s submission, the Respondent went to extraordinary lengths by closing an entire unit affecting several other employees, all for the purpose of ridding itself of the Applicant. The Respondent did not write the letter of 7 November 2016, the Applicant did. The Applicant’s views of Ms Whitman and other colleagues set out in that letter appear to have been significant factors taken into account by the Respondent in assessing the Applicant’s suitability for the position. The submission is not accepted.
[94] As to compliance with the redeployment process, I have already criticised it but in and of itself the flawed process undertaken by the Respondent, is but one of a number of matters relevant in assessing whether it was reasonable in all the circumstances for the Applicant to have been redeployed to the Social Worker Grade 1 position at Malvern.
[95] It is not in dispute that the only job, position or other work into which the Applicant could have been redeployed was the position of social worker grade 1 at Malvern. The other social worker position at Malvern had been filled and the part time position at Brighton was not sought by the Applicant in the form and at the grade available.
[96] It seems clear on the evidence and I accept that the Applicant was more than qualified and possessed the necessary skills and experience required to fulfil the requirements of that position. It also seems clear on the evidence and I accept that the Applicant was not considered for redeployment to the position but rather was considered as one of a number of applicants for the position. He was required to compete for the position with other persons who were not potential redeployees. These are matters that plainly weigh in favour of a conclusion that it would have been reasonable in all of the circumstances for the Applicant to be redeployed into the position.
[97] In addition, the manner in which the Applicant’s correspondence containing criticisms of Ms Whitman was raised and her participation in both the interview process and the decision not to offer the vacant position to the Applicant is suggestive of unfairness and has a tendency of tainting of the process. These are also matters which weigh in favour of a conclusion that it would have been reasonable in all of the circumstances for the Applicant to have been redeployed into the position.
[98] To be weighed against this are the matters to which the Respondent has referred in its submissions. They point to the real possibility of conflict in the workplace between the Applicant and, at the very least Ms Whitman, in the event that the Applicant were redeployed into the position. This real possibility is not confined as suggested by the Applicant merely a personality clash between the Applicant and Ms Whitman. In my view the poor relationship between the two had the real potential of effecting the efficient operation of the unit into which the Applicant would be redeployed. Ms Whitman would be his superior if he were redeployed into the position. It is palpably clear from the nature of the correspondence to which reference has already been made, that the Applicant, rightly or wrongly, had little respect for nor trust in Ms Whitman. He accuses Ms Whitman of undermining him, that she fuelled hatred of him, that she fuelled bullying and harassment of him and she was behind a campaign or witch hunt mounted against him. Despite his protestations during his evidence that the matters she raised were true and that he had evidence 199, the Applicant led no evidence to support them beyond his bare assertions. Redeployment of the Applicant into a position which was responsible to Ms Whitman in the circumstances of the poor state of their relationship was in my view untenable, not only because it was likely to be productive of further conflict but also because such conflict will likely effect the efficient and harmonious operation of the unit into which the Applicant would have been redeployed. These are matters that weigh heavily against a conclusion that it would have been reasonable in all of the circumstances for the Applicant to have been redeployed into the position.
[99] Further, are the matters to which the Respondent has referred in its submissions and in particular the concerns raised by each of the panel members after the Applicant’s interview on 8 June 2017. It is clear from the contemporaneous notes made by Ms Whitman and Mr Young and Mr Goller’s evidence that based on the answers given by the Applicant during the interview, if the Applicant were redeployed into the position he would be unwilling to accept supervision or direction and would continue to work at a grade 3 level rather than a grade 1 social worker. All of these are matters that are relevant to assessing whether it would have been reasonable in all circumstances to redeploy the Applicant into the position. These are matters that weigh against a conclusion that it would have been reasonable in all of the circumstances for the Applicant to have been redeployed into the position.
[100] I consider that the matters to which reference is made in [87], [88], [98] and [99] taken together outweigh the matters earlier identified which favour a conclusion that it would have been reasonable in the circumstances to redeploy the Applicant into the position. It follows that it would not have been reasonable in all of the circumstances for the Applicant to be redeployed within the Respondent’s enterprise.
Conclusion
[101] For the reasons given I am satisfied that the Applicant’s dismissal was a case of genuine redundancy because the Respondent no longer required the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise and the Respondent complied with its obligation under the Agreement to consult about the redundancy. For the reasons given the exception in s.389(2) does not arise because it would not have been reasonable in all the circumstances for the Applicant to be redeployed within the Respondent’s enterprise.
[102] It follows that the Applicant has not been unfairly dismissed because the dismissal was a case of genuine redundancy. The application for an unfair dismissal remedy is dismissed.
[103] An order giving effect to this decision is separately issued in PR598982.
DEPUTY PRESIDENT
Appearances:
Mr A Hands, Counsel for Mr Velasquez.
Mr N Harrington, Counsel for Cabrini Health.
Hearing details:
Melbourne.
2017.
9 & 11 October.
1 Exhibit 5 at [16].
2 Applicant’s F2 – Unfair Dismissal Application dated 14 July 2017 at DV-6.
3 Exhibit 5at [4].
4 Ibid at [16].
5 Ibid.
6 Exhibit 7 at [21], Exhibit 5 at [17].
7 PN817.
8 Ibid.
9 Exhibit 7 at [22].
10 Ibid.
11 PN804 – PN810.
12 PN812 – PN813.
13 PN811.
14 Exhibit 7 at [23].
15 Ibid, Exhibit 5 at TW-2.
16 PN814 – PN815, PN1152.
17 PN1166 – PN1173, Exhibit 7 at [23].
18 Exhibit 7 at [23].
19 PN1166 – PN1172
20 Exhibit 7 at DV-3 pg.7.
21 PN423 – PN425.
22 Exhibit 5 at [16].
23 Exhibit 7 at [DV-1b].
24 PN827.
25 Exhibit 7 at [24].
26 PN1158 – PN1162.
27 PN1165-PN1174, PN1237.
28 Exhibit 27.
29 Exhibit 28.
30 Exhibit 5 at [11].
31 Ibid.
32 Ibid.
33 Ibid.
34 Ibid at [12].
35 Ibid.
36 Ibid at [13].
37 Ibid.
38 Ibid at [14], PN1178.
39 See for example, PN1282 and PN1361.
40 Exhibit 7 at DV-3.
41 Exhibit 7 at [DV-2].
42 See for example PN1277, PN1300 and PN1383.
43 PN782 – PN783 and PN992.
44 Exhibit 5 at [15].
45 Exhibit 7 at [39].
46 Ibid at [15], TW-1.
47 Transcript PN162.
48 PN164 – PN165.
49 Respondent’s Outline of Argument dated 4 September 2017 at [41].
50 Ibid.
51 Applicant’s F2 – Unfair Dismissal Application dated 14 July 2017 at q 3.2 at [8].
52 Transcript PN168 – PN169.
53 Exhibit 3 at [18], KY-3 and KY-4.
54 Exhibit 1 at RG-2.
55 Exhibit 7 at [47].
56 Exhibit 3 at KY-3.
57 PN593.
58 Applicant’s F2 – Unfair Dismissal Application dated 14 July 2017 at DV-5.
59 PN969 – PN988.
60 PN986.
61 PN988.
62 Applicant’s F2 – Unfair Dismissal Application dated 14 July 2017 at DV-6.
63 Exhibit 3 at [23], Exhibit 7 at [50].
64 Ibid.
65 Ibid and PN467.
66 Exhibit 3 at [24], KY-6 and Exhibit 7 at [51].
67 PN218.
68 PN469.
69 PN1344.
70 Exhibit 3 at [26], KY-7.
71 Exhibit 1 at RG-3, Email from Rob Goller to Jody Betzein and Diego Velasquez on 29 May 2017 at 10.01am.
72 Ibid at KY-8, Email from Jody Betzein to Kirby Young on 1June 2017 at 12.47pm.
73 Ibid.
74 Email from Robert Goller to Jody Betzein on 5 June 2017 at 5.22pm.
75 PN1008.
76 Ibid.
77 Exhibit 3 at [29].
78 Exhibit 7 at [54].
79 Ibid.
80 Exhibit 1 at [23].
81 PN782 and PN992.
82 PN428.
83 PN430.
84 Exhibit 1 at [23].
85 PN366.
86 PN656.
87 PN993.
88 PN657 – PN658.
89 PN722 – PN726.
90 Ibid.
91 PN488.
92 PN1421.
93 Exhibit 7 at [55].
94 PN1382.
95 PN1421.
96 PN1390.
97 Exhibit 1 at [24], PN330.
98 Exhibit 1 at [25].
99 Ibid.
100 PN486.
101 Exhibit 1 at [26].
102 Ibid.
103 PN666.
104 Exhibit 3 at [31].
105 Ibid at [30], PN666.
106 PN708 – PN712.
107 Exhibit 3 at KY-9.
108 Ibid.
109 PN665.
110 Exhibit 5 at [26].
111 Ibid.
112 Ibid at TW-3.
113 Exhibit 1 at [27].
114 Exhibit 5 at TW-3.
115 PN1412.
116 Ibid.
117 PN1413.
118 PN1191, PN1215 and PN1221
119 See for example PN1288.
120 PN444 – PN454.
121 PN695.
122 PN383.
123 Exhibit 1 at 28, Exhibit 7 at [56].
124 Ibid.
125 Exhibit 26.
126 Ibid.
127 PN1008
128 See for example Skinner & Ors v Asciano Services Pty Ltd [2017] FWCFB 572 at [57], [58].
129 See Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308; cited in Ulan Coal Mines Ltd v Howarth and ors (2010) FWAFB 3488 at [17].
130 Ibid.
131 Ibid.
132 See for example Dibb v Commissioner of Taxation (2004) 136 FCR 388 at 404‒405.
133 See Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt [2010] FWA 674 at [27].
134 Ulan Coal Mines Ltd v Howarth and ors (2010) FWAFB 3488 at [17].
135 Respondent’s Closing Submissions at [2a].
136 Exhibit 3 at [12].
137 Ibid.
138 Health Professionals Agreement 2016, at clause 60.
139 Respondent’s Outline of Submissions dated 4 September 2017 at [34] – [47], Respondent’s Closing Submissions dated 11 October 2017 at [2].
140 PN1713 – PN1714.
141 Respondent’s Outline of Submissions dated 4 September 2017 at [34] – [47], Respondent’s Closing Submissions dated 11 October 2017 at [2].
142 Ibid.
143 Exhibit 3 at [26], KY-7.
144 Applicant’s Outline of Submissions dated 18 September 2017 at [7].
145 Ibid at [36].
146 Ibid at [37].
147 PN1872.
148 Applicant’s Outline of Submissions dated 18 September 2017 at [35].
149 Exhibits 9- 25.
150 Exhibit 9 at [3].
151 Ibid at [5].
152 Exhibit 10 at [7].
153 Exhibit 11 at [2].
154 Ibid at [3].
155 Exhibit 13 at [5] – [7].
156 Exhibit 15 at [3] – [8], Exhibit 16 at [3] – [8].
157 Exhibit 17 at [7].
158 Exhibit 18 at [8].
159 Exhibit 19 at [4] – [10].
160 Exhibit 20 at [2].
161 Exhibit 21 at [3] – [8].
162 Exhibit 22 at [13].
163 Exhibit 23 at [5].
164 Exhibit 24 at [4] – [11].
165 PN1529 – PN1530.
166 PN22.
167 PN1532 – PN1534.
168 PN1733.
169 Ibid.
170 PN22, PN52 and Exhibit 10 at [7] – [10].
171 Exhibit 7 at [49].
172 Exhibit 3 at [18], KY-3 and KY-4.
173 Exhibit 3 at [26], KY-7.
174 Exhibit 3 at [22].
175 Exhibit 3 at [23], Exhibit 7 at [50].
176 Exhibit 1 at RG-3, Email from Rob Goller to Jody Betzein and Diego Velasquez on 29 May 2017 at 10.01am.
177 Ulan Coal Mines Limited v Honeysett [2010] FWAFB 7578 at [26], (2010) 199 IR 363 at 370.
178 Technical and Further Education Commission T/A TAFE NSW v Pykett [2014] FWCFB 714 at [36], (2014) 240 IR 130 at 139.
179 Ulan Coal Mines Limited v Honeysett [2010] FWAFB 7578 at [28], (2010) 199 IR 363 at 370.
180 Ibid
181 Ibid at [34]
182 Respondent’s Outline of Submissions dated 4 September 2017 at [48(a)].
183 Ibid at [48(b)].
184 Ibid at [48(c)].
185 Ibid at [48(d)(i)] and [48(d)(ii)]
186 Respondent’s Closing Submissions dated 11 October 2017 at [21].
187 Ibid at [28(a)].
188 Ibid at [19].
189 Ibid at [20].
190 PN1859.
191 Applicant’s Outline of Submissions dated 18 September 2017 at [40].
192 Ibid at [43].
193 Ibid at [7(ii)(d)].
194 Ibid at [7(ii)(e)].
195 PN1957.
196 PN1880.
197 PN711.
198 PN1044.
199 PN1196, PN1215, PN1221, PN1248 – PN1249.
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