Mrs Loretta Quinn v Cabrini Health Limited
[2024] FWC 1834
•15 JULY 2024
| [2024] FWC 1834 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mrs Loretta Quinn
v
Cabrini Health Limited
(C2024/2920)
| COMMISSIONER WILSON | MELBOURNE, 15 JULY 2024 |
Application for the Commission to deal with a dismissal dispute under s.365 of the Act – jurisdictional objection that there was no dismissal. Jurisdictional objection upheld – found that Applicant was not dismissed within the meaning of s 386(1) of Act – application dismissed.
This matter concerns a general protections application made by Mrs Loretta Quinn against her former employer, Cabrini Health Ltd (Cabrini).
From 4 September 2023, Mrs Quinn was employed by Cabrini as the Margie Hunsiker Dementia Clinical Support Nurse, a supernumerary, donor-funded position providing bedside education to other nurses, allied health and carers, on the care and management of patients with dementia and cognitive impairment.[1]
Whether Mrs Quinn was dismissed by the Respondent and, if so, what the date of termination was, are matters in dispute and need to be determined by me.
Mrs Quinn’s application was the subject of a hearing on 2 July 2024. At the hearing Mrs Quinn was represented by Mr Brian Newman, a paid agent, and Cabrini was represented by Mr Adam Shepherd, its Director, Employee Relations. Cabrini objected to Mrs Quinn being represented by a paid agent. After hearing the parties, I determined that a grant of permission was appropriate, having regard to the potential unfairness that may arise if the Applicant was not represented, as Cabrini had the benefit of a person experienced in workplace relations matters. My decision in this regard took into account, not only the provisions of s.596(2) of the Act, under which the application for representation was made, but also the reasoning of the Full Bench in ERGT Australia v Mr Kevin Govender, in which it was said;
“[48] The assessment of whether permission should be granted under s 596 involves a twostep process. The first step is to consider whether one or more of the criteria in s 596(2) is satisfied. The consideration required by this first step ‘involves the making of an evaluative judgment akin to the exercise of a discretion’. It is only where the first step is satisfied that the second step arises, which involves a consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) does not of itself dictate that the discretion is automatically to be exercised in favour of granting permission.”[2]
In this regard, I was satisfied that s.596(2)(b) had been enlivened (“it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively”) as well as being satisfied that the Commission’s discretion should be exercised in favour of the Applicant.
Mrs Quinn gave evidence to the Commission on her behalf. Evidence for the Respondent was given by Mr Rick Peebles, Director Clinical Education; Ms Hillary Wolff, People and Culture Business Partner; and Ms Jackie Laver, Quality and Safety Curriculum Developer.
The Applicant maintains that she was dismissed, with Applicant being notified of it on 18 May 2024, with it taking effect on 2 May 2024. For its part, Cabrini submits that Mrs Quinn resigned her employment.
For the reasons set out below, I find that Mrs Quinn was not dismissed within the meaning of the Act.
APPLICABLE PRINCIPLES
The term “dismissed” is defined in s.12 of the Act by reference to s.386, which provides this definition:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) and (3) omitted”
The Full Bench in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli (Tavassoli) has held the following about the application of s.386(1) to a particular circumstance, dealing not only with the matters explicitly stated in the section but also the approach to be given to “heat of the moment resignations”;
[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.
[48] It is necessary for an applicant for an unfair dismissal remedy whose employment has terminated because the employer has acted on a communication of resignation on the part of the employee to articulate whether they contend they were dismissed in the first or the second scenario above (although it may be possible for both scenarios to arise in a particular factual situation). Where the applicant is self-represented or inadequately represented, it may be necessary for the member of the Commission hearing the matter to clarify with the applicant the precise basis upon which it is contended that the applicant was dismissed. If this is not done, it may lead to the wrong test being applied to the matter.”[3]
After an extensive review of the Australian and English law surrounding the question of whether a resignation stands, not inconsistent with the approach in Bupa, Commissioner Bissett concluded the following about consideration of resignations in Desiderato Umberto Fato v La Sagra Pty Ltd T/A Sagra Restaurant;
“If clear and unambiguous words are used to convey a resignation and these are understood by the employer, then the proper conclusion to draw is that the employee has resigned;
A notice of resignation has effect according to an ordinary interpretation of the words used to convey the resignation. Caution might be exercised in accepting certain types of resignations, where it may be prudent for the recipient of the notice to investigate the meaning with the giver of the notice. Such circumstances that may require investigation might be where an employee is coerced into the decision, if the employee is immature, the resignation is given in the heat of the moment or if given during emotional distress.
The existence of such circumstances should not be accepted as providing a unilateral right to withdrawal of the notice.
There is no right to unilateral withdrawal of a resignation during the period of notice as to do so would defeat the purpose of notice.”[4]
Section 365 states that if a person has been dismissed, and the person alleges that the dismissal was in contravention of Part 3-1, he or she may apply to the Commission to ‘deal with the dispute’.
The Commission’s usual process with general protections matters is to deal with the dispute by conducting a conciliation conference. If it is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful, the Commission will issue a certificate that allows the applicant to commence proceedings in a court (s.368(3)) or by arbitration in the Commission if consent is given by each party (s.369). However, in an application where the respondent denies that it dismissed the applicant and objects to the application on this basis, the Commission is required to determine whether the applicant was dismissed.[5]
Consistent with the Commission’s usual practice on these matters, this matter has been allocated to me to determine whether or not there was a dismissal. A person must have been dismissed to be entitled to make a general protections dispute application and before the Commission can exercise powers under s.368 to deal with a dispute.[6]
CONSIDERATION
The question of whether Mrs Quinn has been dismissed is a matter of contention. Relevant to that question are the requirements of s.386(1), the approach to which is set out above.
Mrs Quinn commenced work as a Dementia Clinical Support Nurse for Cabrini on Monday 4 September 2023, with her employment subject to a six-month probation period. Initially she reported to Mr Peebles who is the Director of Clinical Education. Mr Peebles noticed in late 2023, after Mrs Quinn returned from leave, that in his view, she needed to be provided with a lot of repetition of instruction and process. In February 2024, Mr Peebles changed the reporting line for Mrs Quinn to Jackie Laver, Cabrini’s Quality and Safety Curriculum Developer, who reported to him. Mr Peebles says that the reporting change came about as a result of a decision to address the growth in his team.
On Monday, 4 March 2024, Mrs Quinn’s probation period ended.
Shortly after, on Wednesday 13 March 2024, Mr Peebles received an escalation email of a complaint about Mrs Quinn. The complaint related to a separate complaint, made by the family of a patient, about the conduct of a Consultant Geriatrician. Mrs Quinn had progressed the complaint by making a note in the patient’s history, but not informed the Consultant of the complaint. The Consultant saw the note and was unhappy she had not been informed of the complaint and only learned of it when she read the patient notes. The following day, on Thursday 14 March 2024, Mr Peebles met with Mrs Quinn and told her about the Consultant’s complaint about her, although he did not detail all matters that the Consultant had complained about, in particular, complaints made about Mrs Quinn’s memory. The following day Mr Peebles went on leave, returning on Tuesday 2 April 2024. Ms Laver took leave between Monday 1 and Friday 5 April 2024.
During Mr Peeble’s leave on Wednesday 27 March 2024, Ms Laver sent him an email about Mrs Quinn. Mr Peebles later forwarded the correspondence, on Tuesday 2 April 2024, to Ms Wolff, the relevant People and Culture Business Partner. Ms Laver’s correspondence related to a number of matters, including the complaint made by the Consultant Geriatrician, as well as a new “major conflict” with a Nurse Unit Manager; the teaching of incorrect material and continual impulsive behaviour and lack of insight. The relevant part of Ms Laver’s email includes the following;
“Unfortunately, we have a curly issue to deal with. I have had a comprehensive conversation with Sharon Sherwood and Michelle Smart.
Loretta is demonstrating some concerning behaviours, and causing a lot of unrest in the clinical areas.
• there is the ongoing issue with [the Consultant] - the gerontologist
o Loretta has been demanding a mediation process, but I feel it requires higher level intervention than me.
• she has had a quite major conflict with [the Nurse Unit Manager]
o again - she is demanding a mediation process here, but I have told her to wait until you return. There is a story here, and I ask that you chat with Michelle Smart to get more information.
• she is consistently teaching the incorrect process for delirium assessment and management - despite reinforcement from myself, Sharon & Michelle Smart.
• despite several meetings with myself, she continues to demonstrate impulsive behaviour without following process.o I have had multiple conversations with her about process, and the next day it is like she has not heard it.
• there is little insight into her behaviour, or the effect she has on other people
o all the problems are some one else's fault.
o no concept of boundaries.
Loretta has a lot of passion, and some amazing strengths. But I am not convinced she has the ability to work in a team, and be respectful of other people's roles.”[7]
Mr Peebles met with Mrs Quinn on Tuesday 2 April 2024, when they discussed the complaint received from Ms Laver. He says they discussed the progress of the complaint from the Consultant Geriatrician and he asked about the incident with the Nurse Unit Manager on Saturday 23 March 2024, as well as telling her about the concerns raised by other staff;
“20. …The Applicant said that she refused to follow [the Nurse Unit Manager’s] instruction to exit the room because she was protecting [the Nurse Unit Manager] from abuse and was supporting [her] and that [she] was incorrect in her assessment of the patient.
21. I suggested to the Applicant that if she was instructed not to enter the room she shouldn’t have. I asked the Applicant to reflect on the situation when a very experienced and senior member of staff provides a clear instruction. The Applicant was unable to reflect and just asserted that she was correct and [the Nurse Unit Manager] was incorrect. I said I would need to understand [the Nurse Unit Manager’s] perspective.
Mr Peebles also told Mrs Quinn of concerns raised by other managers who he named. He considers that Mrs Quinn seemed surprised at the feedback and asked what they were relying on.[8]
On Monday 8 April 2024 Ms Laver says she met with Mr Peebles to discuss the performance concerns he held about Mrs Quinn. Mr Peebles and Ms Laver say that, in that meeting, Ms Laver recommended the introduction of a Performance Improvement Plan (PiP) in relation to Mrs Quinn and the concerns he held. On the same day, Mr Peebles also met with Ms Wolff to discuss concerns about Mrs Quinn’s performance and whether a formal PiP was warranted. Mr Peebles says that Ms Wolff agreed that a PiP should be initiated. Mr Peebles justifies the decision in this way;
“My decision to initiate a PiP was taken because of the significant performance concerns I held regarding the Applicant which fell into four main themes;
a. Lack of ability to retain information and follow direction;
b. Significant issues regarding engagement and collaboration with key stakeholders;
c. Lack of insight or ability to act on constructive feedback; and
d. Unreliable attendance at meetings.”[9]
A draft PiP was prepared and Mr Peebles and the other managers decided on two relevant activities. First, Mrs Quinn would be invited to a meeting with Ms Laver on Tuesday 16 April 2024, when she would be informed that Cabrini intended to initiated PiP process and she would be given a letter inviting her to the first meeting for that purpose. Second, Mrs Quinn would be invited to a further meeting on Thursday 18 April 2024, when the PiP process itself would commence.
The initiating PiP correspondence however, dated Tuesday 16 April 2024, goes further than merely informing Mrs Quinn of the initiation of the PiP process, with it explicitly warning her as follows;
“Dear Loretta
RE: Commencement of Performance Improvement Plan (PIP)
This letter is to advise you that your performance as a Clinical Support Nurse -- Dementia is not currently meeting Cabrini's expected standards.
This letter serves as a warning that if your current performance does not improve to an acceptable standard over a reasonable period of time you will be subject to disciplinary action up to and including termination of your employment.
You are required to attend a meeting at:
• Time: 11am
• Date: 18 April 2024
• Location: Level 2 Meeting RoomOur HR Business Partner for our team, Hillary Wolff will also be attending.
This discussion will relate to aspects of your performance that are not meeting expectations.
Please note this meeting is designed to highlight your performance against current required standards at Cabrini and assist you in improving to the required standard.
At our meeting I will explain our performance concerns with you and the PIP process in further detail. You will have an opportunity to have input into this process in relation to what assistance Cabrini can provide to help you meet the required standards”.[10]
The meeting between Ms Laver and Mrs Quinn which took place on Tuesday 16 April 2024 did not go well.
According to Ms Laver, before handing over the PiP letter, she said to Mrs Quinn that there had been a number of complaints about her. Mrs Quinn wanted know who the complaints had been made by and details about them and became agitated. When Mrs Quinn left the room briefly to go to the bathroom, Ms Laver requested Mr Peebles to attend who, once he did arrive, moved to calm the tone of the meeting. Ms Laver’s evidence is that a key discussion in the second part of the meeting were the complaints made by the Nurse Unit Manager to Mrs Quinn, with Mrs Quinn saying that the Nurse Unit Manager owed her an apology as their interaction had occurred in front of their mutual patient. Mrs Quinn said that she felt undermined by the Nurse Unit Manager who was not recognising her expertise.
The following day, on Wednesday 17 April 2024, Ms Wolff met with Mr Peebles and Mr Laver, where she was debriefed about the previous day’s meeting and agreed to deliver the PiP letter to Mrs Quinn herself, the following day. Also, on 17 April, Mrs Quinn emailed Ms Wolff, “seeking assistance dealing with issues involving other staff members saying that she felt her managers were unprofessional and not supportive”. In response, Ms Wolff sent a meeting request to Mrs Quinn in order to discuss these matters.[11]
Mrs Quinn is critical of Ms Wolff for having contacted Mr Peebles and Ms Laver about her request for a meeting, as she had requested the meeting be held in confidence, which did not occur.[12]
On Thursday 18 April 2024, Ms Wolff met with Mrs Quinn who explained her interactions with the Consultant Geriatrician and the Nurse Unit Manager, as well as her own concerns about interactions between others in the work team and herself. Ms Wolff’s evidence about the remaining content of the meeting is the following, including importantly, that at the conclusion of the meeting, Mrs Quinn verbally resigned, giving two weeks notice after tearing up the PiP letter (the First Notification of Resignation);
“b. I said that I appreciated the Applicant had concerns but there are also issues relating to her performance. These are two separate issues which can be looked into separately and can be dealt with concurrently.
c. I handed the PiP Letter to the Applicant.
d. The Applicant very quickly became agitated and in a loud voice stated “No, No, No, No. I will not be performance managed again.” and threw the PiP Letter back at me.
e. I said that I understand that you are upset but it is important that you understand that we have concerns about your performance. I strongly recommend that you take the letter and read the contents of the letter.
f. I slid the PiP Letter back along the table towards the Applicant.
g. The Applicant picked up the PiP Letter; tore it in half; chucked it back at me whilst crying and shouting that she won’t be performance managed again and that nobody understands her.
h. The Applicant then verbally resigned giving two weeks’ notice and stormed out of the room.”[13]
Mrs Quinn’s evidence is that she was shocked, distressed and very teary in the meeting as she felt the PiP was unjustified and punitive. She had not been previously notified of the PiP and was not given an opportunity to have a support person in the room on 18 April, as well as in the previous day’s meeting. She left the room “stating this is very unfair and I choose not to work for an organization that treats their staff like this and stated I resign immediately giving two weeks notice”.[14]
Ms Wolff expected that Mrs Quinn would, after their meeting, go back to her office, so Ms Wolff called Mr Peebles to ask where that office was. He told her the location and said that he would meet Ms Wolff at that office. When Ms Wolff arrived and met Mr Peebles outside, she could hear Mrs Quinn “shouting loudly” with the door initially locked, but then opened by somebody. Ms Wolff’s evidence is that she said to Mrs Quinn that “I think it is best that you leave”.[15] Further;
“26. The Applicant was packing up her belongings but was still being extremely loud and upset and aggressive.
27. I was concerned that if the Applicant walked out through the main entrance that she might bump into members of staff and create a scene so I thought it was appropriate to call security and have them on hand.
28. I looked at my phone to call security and the Applicant shouted “Go on then call security”
29. I was a little bit flustered and couldn’t find the number so I never called security.
30. The Applicant moved towards me and I got out of the way and she proceeded to the lift which is opposite.
31. The Applicant said to me that she will take annual leave and sick leave and instructed me how I was to pay out her notice. The Applicant also said that “I came to you for support and you didn’t help me you are a disgrace”. The Applicant then left via the lift.
32. Mr Peebles then approached me and we quickly decided that we wanted to ensure the Applicant had left the building and was safe.
33. I called the Applicant to check she was OK but she never picked up. I then called EAP for a welfare check.”[16]
The same day at 1:09 PM, Mrs Quinn sent Ms Wolff a text message which stated, “I resign giving two weeks notice and taking sick leave next 3 days then annual leave.”[17] (the Second Notification of Resignation).
The following morning, on Friday 19 April 2024 at 9:56 AM, Ms Wolff sent an email to Mrs Quinn, checking as to whether she actually intended to resign, with Ms Wolff specifically noting that the previous day’s events had been “in the heat of the moment”. The email sent by Ms Wolff included the following;
“Hi Loretta,
Just following up on yesterday’s discussion where you verbally resigned to me and then sent me a text stating you were resigning giving two weeks’ notice.
I appreciate that it was in the heat of the moment.
I am wondering if you still would like to resign?
If you could let me know by the close of business today that would be appreciated.
Kind regards”[18]
Within an hour of this email being sent, Mrs Quinn replied reiterating her resignation (the Third Notification of Resignation);
“I resign giving two weeks notice yesterday, on sick leave til next Tuesday then annual leave. Will not work for an organisation that treats staff like animals and doctors like Gods”[19]
On Saturday, 20 April 2024, Ms Laver received an email from Mrs Quinn, again reiterating her intention to resign (the Fourth Notification of Resignation). Ms Laver says in her witness statement, she was not expecting the email as she was already under the impression that Mrs Quinn had resigned the day before.[20] Mrs Quinn’s email set out the following;
“Dear Jackie,
Due to the untenable working environment that I have experienced over the past four weeks from you Ms Jackie Laver Manager, Mr Rick Peebles Head of Education, [the Nurse Unit Manager], Ms Hilliary Wolfe HR, and [the Consultant Geriatrician] all at Cabrini Hospital where I have been employed for the past 7 months as a Clinical Support Nurse (Dementia), I have had no other choice other than to resign as of last Thursday the 18th April, giving two weeks notice, with my last day of employment being Thursday 2nd May 2024, of which I stated to Ms Hiliary Wolfe during out meeting at 1100 hours last Thursday the 18th April, 2024.
I have notified Ms Wolfe that the Cabrini equipment including laptop, computer bag, swipe cards and key to the education office is ready to be picked up as of yesterday afternoon and she texted me that she will organise a courier to pick these items up on Monday morning from my house the 22nd April. The charger to the laptop is plugged in under my office desk in the Education office between 4South and 4Central I ask that any personal belongings that I have left there be forwarded to me.
Yours Sincerely”[21]
Ms Wolff notes in her evidence that, following receipt of the letter on Saturday 20 April 2024, Mrs Quinn never returned to the workplace, taking leave through to her final day of employment,[22] namely Thursday 2 May 2024.
In her closing submissions, Mrs Quinn puts forward that the PiP was a form of adverse action, taken in response to Mrs Quinn exercising her workplace rights, with those rights pertaining to the complaint she made about workplace safety, bullying and inadequate training. Mrs Quinn says that the timing of the PiP suggests it was a form of retaliation for her raising the complaints she made. I take the reference to complaints to include the matters Mrs Quinn raises in relation to both the consultant geriatrician and the nurse unit manager.
Mrs Quinn argues that the PiP led to her constructive dismissal and that the Commission should find in her favour, recognising her resignation was a direct result of the adverse action taken by Cabrini in retaliation for her complaints. In finality, Mrs Quinn argues that the sequence of events leading to the PiP, clearly illustrate that her resignation was forced, and further, was a direct result of her exercising her workplace rights.[23]
Mrs Quinn’s submissions do not raise the proposition that her resignations were given in the heat of the moment. While that is so, I consider it to be prudent to address the possibility.
Cabrini argue to the Commission that Mrs Quinn’s employment was not terminated at its initiative. It did not intend for Mrs Quinn’s employment to end and did not take any actions or provide any communication to that effect. Cabrini argues that Mrs Quinn gave notice of resignation at her own initiative on 18 April 2024, which she then reaffirmed on three further occasions over the course of the following two days.
Cabrini also argue that the purpose of the PiP was not to bring Mrs Quinn’s employment to an end, but rather was to provide a formal process to raise the Applicant’s performance to the required level. Cabrini also argue that the finding cannot be made by the Commission that the probable result of Cabrini’s conduct was such that Mrs Quinn had no effective or real choice but to resign: “When viewed objectively, the Applicant had a very obvious and real alternative choice available to her. Instead of resigning she could have chosen to participate in the PiP”.[24]
Having regard to the Full Bench’s discussion of the bifurcation in the s.386(1) definition of “dismissal” identified in Tavassoli, Mrs Quinn is clearly ineligible to argue that her resignations were the product of heat of the moment events, which the employer then peremptorily adopted without any proper enquiry of her.
Mrs Quinn’s oral evidence alluded to there being an earlier trauma in a previous employment, which caused her to act as she did when presented with the PiP, however she did not strongly argue this is why she announced her resignation. The matter to which she referred was not set out in her written submissions or witness statement and was not referred to in her closing submissions, prepared after her oral evidence. In any event, Mrs Quinn did not explain why that earlier trauma caused her to react as she did, tear up the PiP letter and announce her resignation. To the extent that Mrs Quinn intended for me to take this as a reason for a heat of the moment resignation, and it is not clear that she did, there is no cogent evidence that such a trigger would cause such an effect. Neither is there corroborative medical evidence that I should take the earlier matter as a trigger for such an effect.
To give one heat of the moment resignation is remarkable, but to give four is nothing short of extraordinary, especially given that it was over an extended period of two days. Coupled with the fact that Cabrini sought confirmation from Mrs Quinn as to whether she intended to resign, and that she confirmed that was her intention, not once, but twice after receiving Ms Wolff’s message. I consider that this removes any possibility for Mrs Quinn to argue that her actions were the result of a sudden and out of character brain snap.
Determining whether Mrs Quinn’s resignations were forced requires consideration of whether Cabrini engaged in the conduct complained about, with the intention of bringing her employment to an end or whether termination of the employment was the probable result of its conduct such that Mrs Quinn had no effective or real choice but to resign.
The evidence in this regard, and referred to above, falls into two parts. First is that which occurred prior to the disclosure by Cabrini to Mrs Quinn that she was to be under a PiP, much of which was not known to Mrs Quinn until on or around 14 March 2024, when Mr Peebles disclosed to Mrs Quinn some concerns about her employment, including the complaint which had been made about her by the Consultant Geriatrician. Second are the points of concern on the part of Cabrini relating to the events which took place after the 14 March 2024 discussion.
The material before me certainly justifies the commencement of a PiP in relation to the concerns held by Cabrini. In this regard, I accept Mr Peebles evidence as to the complaints which were made to him and his own observations about Mrs Quinn’s performance. His own observations may not of themselves have justified the introduction of a PIP, however, when coupled with the more detailed complaints set out in Ms Laver on 27 March 2024, there is plainly an accrual of matters which needed to be taken up with the Applicant in the ordinary course of proper human resource management. My view in this regard is reinforced by the content of the draft PiP, which is before me and is consistent with the matters referred to in the evidence as being matters about which Cabrini sought improvement. The plan seeks actions in four respects; lacks ability to retain new information follow direction; engagement and collaboration with key stakeholders; lacks insight the feedback from senior leaders; and reliability to attend meetings of importance. The PiP then sets out for each of these issues the things it believes are required for demonstration of improvement, against each of three subjects;
· the Objectives/required outcome
· Strategies/Actions to take
· Support and resources Cabrini to provide to help achieve the required outcome
The issues and measures for improvement set out in the PiP are largely innocuous and measured. The Commission would expect that performance criticisms of these types be put to an employee in the way that they have been by Cabrini, giving the employee specifics about what needs to change and time to change the matters which are drawn to the employee’s attention. The weight of the evidence before me in relation to the PiP is that its formation was neither unreasonable or conspiratorial, but instead reflected the honestly held concerns of the managers involved.
The evidence Mrs Quinn gave, that she expected her communication with Ms Wolff on 17 April 2024 and a request for a meeting to be kept confidential, when it was not, does not show an element of a course of conduct to force her resignation. In the context of the overall situation, it was reasonable Ms Wolff inform others of Mrs Quinn’s communication and request.
The actions complained about by Mrs Quinn of the consultant geriatrician and nurse unit manager perhaps require addressing directly with them, however that is not a matter for this decision. Instead, the question in this decision is whether Cabrini engaged in the conduct with the intention of bringing the employment to an end or whether termination was the probable result of its conduct. There is no evidence of that state of mind on the part of Cabrini or any of its managers.
The previous workplace trauma experienced by Mrs Quinn and referred to above was not posited to me as being something that Cabrini knew about. It cannot be said then that Cabrini, when introducing the PiP, understood that it would be the trigger in Mrs Quinn’s mind for a belief that it was utilising the PiP as a lever to remove her from Cabrini’s employment. Had that been Mrs Quinn’s expectation in raising the matter in her oral evidence, it must be said first of all that such a submission was not stated to me and secondly, even if it had, it would require considerable evidence for me to be satisfied on a complaint of such a type that Cabrini reasonably new, the probable result of discussing a PiP with Mrs Quinn would be to trigger within her response that she had no effective or real choice but to resign. Such submissions or evidence is not before me on this subject.
In finality, I am satisfied that none of Mrs Quinn’s four resignations were forced by conduct or course of conduct on the part of Cabrini. It follows that I am not satisfied Mrs Quinn has been dismissed within the meaning of s.386 of the Act and that accordingly, I must in turn dismiss Mrs Quinn’s general protections application. An order to that effect is issued by me at the same time as these reasons for decision.
COMMISSIONER
Appearances:
Mr B Newman, for the Applicant
Mr A Shepherd, for the Respondent
Hearing details:
2 July.
2024.
Final written submissions:
3 July 2024, Applicant
4 July 2024, Respondent
[1] Applicant’s Outline of Submissions, Digital Hearing Book, [4]; p.11.
[2] [2021] FWCFB 268.
[3] [2017] FWCFB 3941.
[4] [2017] FWC 4458, [37].
[5] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, [67]; Lipa Pharmaceuticals Ltd v Marouche[2023] FWCFB 101, [23].
[6] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, [54].
[7] Respondent Documents, CHL1; Digital Hearing Book, p.81.
[8] Witness Statement of Rick Peebles, Digital Hearing Book, pp.44 – 45.
[9] Ibid, pp.45 – 46.
[10] Respondent Documents, CHL3; DHB, p.53.
[11] Witness Statement of Hillary Wolff, Digital Hearing Book, [14]; p.39.
[12] Witness Statement of Loretta Quinn, Digital Hearing Book, [7] – [9]; p.15.
[13] Wolff WS, DHB, [16]; p.39.
[14] Quinn WS, DHB, [19]; p.15.
[15] Wolff WS, DHB, [25]; p.40.
[16] Ibid, [40]; p.66.
[17] Wolf WS, DHB, [34]; p.40 and Respondent Documents, CHL3; DHB, p.56.
[18] Respondent Documents, CHL6, DHB, p.89.
[19] Ibid.
[20] Laver WS, DHB, [29]; p.80.
[21] Respondent’s Documents, CLH4; DHB, p.86.
[22] Wolff WS, DHB, p.66.
[23] Applicant’s Closing Submissions, [38].
[24] Cabrini Closing Submissions, [18].
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