Ms Loretta Woolston v The Uniting Church in Australia Property Trust (Q) T/A Blue Care Bli Bli Aged Care Facility
[2015] FWC 5993
•26 NOVEMBER 2015
| [2015] FWC 5993 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Loretta Woolston
v
The Uniting Church in Australia Property Trust (Q) T/A Blue Care Bli Bli Aged Care Facility
(U2014/16541)
DEPUTY PRESIDENT ASBURY | BRISBANE, 26 NOVEMBER 2015 |
Application for relief from unfair dismissal.
INTRODUCTION
[1] Ms Loretta Woolston applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to her dismissal by The Uniting Church in Australia Property Trust (Q) T/A Blue Care Bli Bli Aged Care Facility (Blue Care). Ms Woolston was employed as a part time personal carer at Blue Care’s Bli Bli Aged Care Facility from 11 August 2011 until her dismissal with effect from 4 December 2014.
[2] The application was made on 19 December 2014, within the time required in s. 394(2) of the Act. Ms Woolston is a person protected from unfair dismissal as defined in s. 382 of the Act. Blue Care is not a small business and the dismissal was not a redundancy.
[3] The application was listed for telephone conciliation on 29 January 2015. The file indicates that Ms Woolston contacted the Commission and requested that she attend the Commission in person to participate in the conference and that she be provided with a room with a telephone that could be used for this purpose. This request was granted and a conference room was made available. Ms Woolston subsequently corresponded with the Commission complaining about correspondence she had received from Blue Care and then advised that she did not want to participate in conciliation and would like her application to be listed for hearing. The correspondence about which Ms Woolston complained, is not appended to her email.
[4] Directions were issued requiring Ms Woolston to file with the Commission and serve on Blue Care an outline of submissions and any witness statements and documentary material she intended to rely on to support her application, by 18 March 2015. Blue Care was required to file and serve its material by 16 April 2015. Ms Woolston did not file material as required by the Directions. Ms Woolston also sent numerous emails to the Commission requesting that Blue Care provide her with various documents that she maintained were relevant to the matters in dispute. Ms Woolston then filed with the Commission and served on Blue Care a Form F52 – Order requiring production of documents etc. to Fair Work Commission.
[5] The matter was listed for telephone Hearing on 2 April 2015 to deal with Ms Woolston’s non-compliance with Directions and her application Form F52 – Order requiring production of documents etc. to Fair Work Commission. That hearing was conducted by Commissioner Roe, who waived the requirement for Ms Woolston to file and serve an outline of submissions or witness statements on the basis that she would rely on the information set out in and appended to her Form F2 Unfair Dismissal Application. Commissioner Roe also issued the Order requiring production of documents, albeit in a redrafted form. Ms Woolston unsuccessfully appealed the Decision of Commissioner Roe to redraft the Order. 1
[6] The file was then allocated to me to hear and determine Ms Woolston’s unfair dismissal application. The matter was dealt with by way of a hearing conducted in Brisbane. Permission was given for Blue Care to be represented by Mr Longwill of McCullough Robertson Solicitors. Permission was granted on the basis that it would allow the matter to be dealt with more efficiently given that Ms Woolston had issues with a significant number of Blue Care’s human resource management staff and that senior staff who might have otherwise have conducted the case for Blue Care were giving evidence in the matter. Ms Woolston did not object to Blue Care being legally represented. Ms Woolston represented herself and gave evidence on her own behalf. 2 Evidence for Blue Care was given by:
- Narelle Steinhardt, Service Manager at the Bli Bli Aged Care facility; 3
- Jane Harvey, Clinical Manager at the Bli Bli Aged Care facility; 4
- Karrin Leishman, Human Resources Officer, Sunshine Coast Cluster; 5
- Patricia McKinnon, Human Resources Manager, Sunshine Coast Cluster; 6
- Wendy Russell, General Manager, Sunshine Coast Cluster; 7
- Peita Town, Employee Relations Manager, Blue Care; 8
- Louise Cornwill; Registered Nurse at the Bli Bli Aged Care facility; 9
- Jacelle Pickering, Administration Officer at the Bli Bli Aged Care facility. 10
[7] During the course of the hearing, Ms Woolston engaged in conduct which can be described as rude and disruptive. That conduct was directed towards Blue Care’s representative Mr Longwill, witnesses for Blue Care and me. At time Ms Woolston’s conduct was bizarre – for example, upon finding what turned out to be a mint on the bar table, Ms Woolston asked whether it was a drug that had been put there for the purpose of sedating her. 11 Ms Woolston took issue with the fact that Blue Care had several members of its Human Resource Management team in the hearing room for the purpose of observing the hearing. In my view, there is nothing sinister about a large employer taking this step to provide training and exposure for its employees to the Commission and its processes. Despite my attempts to explain the reason for the attendance of those persons, and that the hearing was not closed, Ms Woolston maintained that their presence intimidated her. Blue Care agreed that those persons would leave the hearing and they did so.12
[8] Ms made numerous comments throughout the hearing that she would walk out of the hearing or that she would stop participating. At various points Ms Woolston did refuse to participate by declining to answer questions I put to her. On a number of occasions I was required to persuade her to remain in the hearing room. Ms Woolston also took issue with a number of rulings I made in relation to the manner in which she was cross-examining witnesses for Blue Care. This caused Ms Woolston to refuse to cross-examine some witnesses stating that she was refusing to do so “under duress” 13. My repeated attempts to assist Ms Woolston to frame her cross-examination in an appropriate manner were rebuffed. I also explained to Ms Woolston on a number of occasions throughout the course of the hearing, the implications of walking out of the hearing and failing to avail herself of the opportunity to cross-examine witnesses. During Ms Woolston’s cross examination of Ms Leishman, Ms Woolston stated her intention to walk out of the hearing. I offered Ms Woolston a thirty minute adjournment to consider her position and she responded by stating:
“How about you go and sit in your chambers and do what you do and I will go.” 14
[9] Ms Woolston then left the hearing room slamming the door behind her despite being again warned by me immediately before her departure, that the hearing would continue, the statements of the remaining witnesses would be received into evidence without contradiction, and her application may be dismissed. The transcript of proceedings indicates that Ms Woolston left the hearing at 12.03 pm. I adjourned at the point until 12.39 pm. When the hearing resumed, my Associate walked around the Commission premises to ascertain whether Ms Woolston was still there. My Associate reported that Ms Woolston was not on the premises and I determined that she had left the building or at least the level on which the Commission is located. Given the point to which the hearing had progressed when Ms Woolston walked out, the hearing continued and the statements of the remaining witnesses (Ms Harvey, Ms McKinnon, Ms Steinhardt and Ms Russell) were tendered and admitted into evidence. At the point Ms Woolston walked out of the hearing, she was cross-examining Ms Leishman about a matter, the relevant of which was not apparent. Ms Leishman was not cross-examined about her statement and, as a result, its contents were uncontested.
[10] At the conclusion of the hearing I determined to delay the hearing of closing submissions and adjourned the matter. Further Directions were issued providing Ms Woolston with an opportunity to put final submissions in writing or in person. Ms Woolston provided a summary document in relation to her application. The matter was listed for hearing on 21 July 2015. Ms Woolston attended at the Commission’s premises but declined to enter the hearing room or participate in the hearing on the basis that Blue Care had in attendance an Industrial Relations Advisor in addition to its Workplace Relations Manager who had previously attended the hearing. Ms Woolston stood in the doorway of the hearing room and asked whether I was removing the Industrial Relations Advisor. I was informed by Mr Longwill for Blue Care that upon resolution of the present application there were other outstanding matters between Blue Care and Ms Woolston, and the Industrial Relations Advisor in attendance at the hearing would be dealing with those matters. When I advised Ms Woolston that I would not remove the Industrial Relations Advisor from the hearing and invited her to enter the hearing room to listen to my reasons for refusing to accede to her request, Ms Woolston informed me that she would let the Productivity Commission know and again left the hearing.
[11] At 4.17 pm on 21 July 2015 Ms Woolston corresponded with the Commission requesting that I remove myself from further dealing with her application on the grounds of bias. That application was listed for hearing on 21 July 2015 and was the subject of a Decision issued on 26 November 2015 wherein I declined to accede to Ms Woolston’s application in this regard.
[12] In deciding Ms Woolston’s application for an unfair dismissal remedy, I have relied on Ms Woolston’s Form F2 Unfair dismissal application, her oral evidence and cross-examination of Blue Care witnesses, and written material tendered by her during the hearing, including the summary of her case filed on 9 June 2015. I have also relied on the witness statements and evidence of witnesses for Blue Care, which for the reasons set out above, were largely uncontested.
SUBMISSIONS
[13] Ms Woolston was dismissed due to alleged breaches of the Blue Care Code of Conduct and Values regarding unacceptable behaviour and conduct in the workplace. Blue Care claims that Ms Woolston was found to have demonstrated aggressive, threatening and intimidating behaviour toward her colleague, Louise Cornwill, whilst working with her on 2 November 2014. Blue Care asserts that Ms Woolston’s behaviour included yelling, waving her fists, standing in a threatening and aggressive position, using abrupt and/or angry verbal communication and ‘storming out of the room’ without affording her colleague an opportunity to explain the situation.
[14] Blue Care further asserts that Ms Woolston was provided with a first and final warning on 8 October 2013, following several complaints made against Ms Woolston with respect to her interactions with colleagues on 16 and 21 August 2013. Blue Care found that Ms Woolston had regularly and repeatedly demonstrated negative, aggressive and hostile behaviours towards her colleagues.
[15] Following receipt of the complaints, Blue Care initiated an internal investigation. Meetings were held with Ms Pickering and Ms Cornwill and various witnesses to the incidents. Blue Care asserts attempts were made to meet with Ms Woolston on numerous occasions so that the incidents could be discussed and Ms Woolston could respond to the allegations about her conduct. Blue Care met with Ms Woolston on 26 September 2013 for this purpose, before issuing her with a first and final warning for inappropriate workplace behaviour.
[16] Blue Care submits that there was a further incident between Ms Woolston and Ms Cornwill on 2 November 2014. Ms Cornwill made a complaint about Ms Woolston and Ms Woolston made a complaint against Ms Cornwill. Both complaints were investigated. Blue Care claims that despite numerous attempts to meet with Ms Woolston to provide her an opportunity to discuss Ms Cornwill’s complaint and to put her version of events, Ms Woolston consistently refused to attend a meeting. Blue Care claims that when it became clear that Ms Woolston would not attend a meeting, she was offered the opportunity to respond by teleconference or in writing. Blue Care claims that despite numerous attempts, Ms Woolston failed to provide a response to the allegations. Blue Care finalised the investigation and Ms Woolston was dismissed with effect from 4 December 2014.
[17] Ms Woolston asserts that there was a sustained and pre-existing culture of bullying and harassment at Blue Care’s Bli Bli facility, involving another Personal Care Attendant (PCA) who bullied residents, other staff and Ms Woolston, and who Ms Woolston asserted had an “abnormal working relationship” with Ms Cornwill. According to Ms Woolston, that PCA was dismissed following an incident involving Ms Cornwill and another PCA. Ms Woolston also asserts that Blue Care had harmed her following a complaint she had made in defence of another employee’s complaint against her. Other than making these assertions in her Form F2 Unfair dismissal application, Ms Woolston provided no evidence in relation to these matters during the hearing.
[18] Ms Woolston also asserts that in dismissing her, Blue Care failed to afford her procedural fairness and natural justice and valid reasoning in relation to the incident that led to the first and final warning and in relation to the incident that led to her dismissal. Ms Woolston denies that her conduct towards Ms Pickering and Ms Cornwill was aggressive or intimidating and maintains that Blue Care did not conduct a proper investigation into these incidents and did not speak to potential witnesses who could have corroborated her version of events. Ms Woolston also asserts that she has been the victim of bullying throughout her employment at Blue Care and that the organisation has a sustained workplace culture of bullying. Ms Woolston asserts that Ms Cornwill was involved in this bullying in concert with another employee who has since ceased employment with Blue Care.
[19] In relation to the investigations conducted by Blue Care, Ms Woolston claims that Regional human resource management staff have not treated her fairly. Ms Woolston further claims that during the meeting in relation to her first and final warning, Ms McKinnon laughed at her, and that Ms Leishman failed to treat her with dignity and respect. Ms Woolston also claims that Blue Care managers have failed to consider her mental health and the stress she was under, and have also failed to consider the fact that she is a night shift worker and that these matters impacted on her capacity to participate in investigations. Ms Woolston maintains that matters raised by her should have been investigated by persons other than those based at a regional level within Blue Care, and that in refusing to attend meetings she had simply been attempting to escalate her complaints to higher levels in Blue Care’s human resource management structure.
EVIDENCE
[20] It is not in dispute that Blue Care has a code of conduct that applies in its workplaces including at Bli Bli where Ms Woolston worked. The Code of Conduct relevantly states that:
“…
Conduct that falls below standards set out in the code may be subject disciplinary action, which could include termination of employment or other action in accordance with Blue Care policies and procedures”
…
All Blue Care staff are expected to treat people fairly, honestly, responsibly and compassionately, and with proper regard for the rights of others
…
Never encouraging or participating in behaviour that may constitute discrimination, harassment (including sexual and racial harassment), bullying, mistreatment, coercion or intimidation” 15
[21] During cross-examination, Ms Woolston agreed that she is familiar with the code of conduct 16 and understands what it means17. Ms Woolston also agreed that she understood that conduct that failed to meet the Code could lead to termination of employment.18
[22] It is not in dispute that Ms Woolston was issued with a first and final warning on 8 October 2013 for inappropriate workplace behaviour in breach of the Code of Conduct in relation to incidents on 16 and 21 August 2013, involving Ms Pickering and Ms Cornwill respectively. As I understand her case, Ms Woolston disputes the substance of the warning but does not dispute that she received it. According to Ms Pickering’s evidence, Ms Woolston approached her on Friday, 16 August 2013 and requested a shift change for Sunday, 18 August 2013. Ms Pickering states that when she attempted to discuss options with Ms Woolston such as swapping shifts or taking annual leave, Ms Woolston became upset, raised her voice, threw her hands around and walked away during their conversation. Ms Pickering was not asked during her evidence-in-chief whether she followed Ms Woolston after Ms Woolston walked away from the discussion, as was alleged by Ms Woolston.
[23] Ms Pickering’s written complaint about this incident, attached to her statement, was recorded in an email dated 18 August 2014 and states that she told Ms Woolston that administration staff did not organise shift swaps and Ms Woolston would have to do this herself. Ms Pickering said that Ms Woolston did not want to do that and told Ms Pickering that she was being nice by giving Ms Pickering notice. Ms Pickering also said that she asked Ms Woolston whether she wanted to take sick leave or annual leave and told Ms Woolston that she could not just say that she did not want to work. 19 Ms Woolston responded by stating that she was sick of the place and there were systemic issues. In a meeting about the incident, Ms Pickering told Ms Steinhardt and Ms Leishman that Ms Woolston was yelling and aggressive and that the incident left her feeling shaken and upset.
[24] Ms Woolston declined to cross-examine Ms Pickering stating that this was “under duress” 20. At that point, I informed Ms Woolston that if she wished to challenge the truth or correctness of anything in Ms Pickering’s statement, she was required to put to Ms Pickering the alternative version of events.21 Ms Woolston stated that her defence had been “interfered with”22 and confirmed that she had no questions for Ms Pickering. Ms Woolston’s failure to cross-examine Ms Pickering meant that some inconsistencies with the versions of events given by Ms Pickering were not tested. In particular, Ms Pickering was not asked whether she followed Ms Woolston when Ms Woolston walked away from the discussion.
[25] In relation to this incident, Ms Woolston said in her form F2 Unfair dismissal application that Ms Pickering was new to her job and struggling to cope with the administrative duties of rostering. Ms Woolston also said that she was frustrated with the ongoing culture of bullying and hostility that she believed was harming her and which she believed Ms Pickering was part of. Ms Woolston had just finished a night shift where she had also been bullied. In this context, Ms Woolston told Ms Pickering that she should report her concerns to Narelle [Steinhardt]. Ms Woolston also stated that it is noteworthy that after this incident she had continued to work with Ms Pickering professionally and without further incident.
[26] In her oral evidence, Ms Woolston said that Ms Pickering had omitted facts from her statement. In relation to the allegation that she had raised her arms, Ms Woolston said that she was standing in a doorway and her arms were already up on the door. Ms Woolston also said that rostering is “a shit of a job” 23 and Ms Pickering was reasonably new and had just been left on her own recently. When Ms Woolston came along and asked for a shift change, she didn’t think that Ms Pickering’s response was “welcoming”24 and Ms Pickering put her frustrations onto Ms Woolston, in circumstances where Ms Woolston was also frustrated after finishing a night shift.25 Ms Woolston also said that Ms Pickering was sitting down and there was a distance of about three and a bit metres between them. Ms Woolston asked whether she could do a shift swap to be helpful rather than simply telling Ms Pickering that she could not do the shift.
[27] In response to the allegation that she was yelling, Ms Woolston said that her voice projects and that to assume she was yelling is “over the top” 26. Ms Woolston said that when she walked away, Ms Pickering followed her down the corridor and insisted that the shift issue be resolved. Ms Woolston said that Ms Pickering was not intimidated because she chose to follow her and to block Ms Woolston’s way out. Ms Woolston also questioned why the kitchen staff, who would have been in the area, were not asked about the incident.27
[28] Under cross-examination, Ms Woolston agreed that she told Ms Pickering on Friday that she would not be available for a Sunday shift, two days later. Ms Woolston also agreed that it is probably correct that shift changes require seven days’ notice and that it is reasonable that where a shorter period is involved, a roster swap is required. Ms Woolston maintained that she told Ms Pickering that she was willing to swap her roster and agreed that Ms Pickering told her that she would need to arrange the swap.
[29] Ms Woolston agreed that she raised her voice or yelled at Ms Pickering. 28 Ms Woolston also conceded that during the exchange with Ms Pickering she stated: “I am sick of this shit” and that she was “writing a novel for head office”.29 In response to the proposition that Ms Pickering followed her because she needed to know whether Ms Woolston would work the shift or wanted annual leave, Ms Woolston said that Ms Pickering possibly felt she needed to ask her about these matters. In response to the proposition that she was angry when Ms Pickering did not give her the response she wanted, Ms Woolston said that she was frustrated.30
[30] Ms Cornwill said in her statement that on 21 August 2014 she worked with Ms Woolston on a night shift. During that night shift, Ms Woolston was argumentative and challenged Ms Cornwill’s decision to administer morphine to a resident. Ms Cornwill said that her administration of the morphine was consistent with Doctor’s orders and that she was satisfied that the resident was not allergic to morphine. Ms Woolston said that the resident had told her that she was allergic to morphine and that Ms Woolston advocated on her behalf to Ms Cornwill. Ms Woolston agreed that she continued to raise this issue with Ms Cornwill after Ms Cornwill told her that the Doctor had ordered the morphine and the resident was not allergic to it. 31 Ms Cornwill made a further complaint about Ms Woolston’s conduct during a shift on 7 September to the effect that Ms Woolston had attempted to intimidate her and told Ms Cornwill that she was “writing a novel for head office” and would complain about Ms Cornwill.
[31] Ms Steinhardt said that she received complaints about these incidents from Ms Pickering and Ms Cornwill and referred them to the Human Resource team at Blue Care’s Sunshine Coast regional office. The complaints were investigated by Ms Leishman and a series of meetings was held with the complainants. These were documented and records of them were appended to the statements of Ms Steinhardt and Ms Leishman. An email was sent by Ms Steinhardt to Ms Woolston dated 5 September 2014, attaching a letter setting out allegations to be discussed with her at a meeting to be held on 11 September 2014. 32 Ms Woolston telephoned Ms Leishman on 5 September to discuss the email and the attached letter and during that discussion expressed her concern about the Regional Office conducting the investigation. Ms Leishman told Ms Woolston that she could escalate the matter to Head Office if she wished to do so but there was no guarantee that the matter would be dealt with at that level.
[32] Ms Woolston responded to Ms Steinhardt’s email of 4 September by email dated 5 September 2014 stating that she would not attend the meeting on 11 September 2014 but would be willing to attend a meeting at Head Office about these issues and others that she had expressed concerns about. 33 Ms Woolston also emailed Ms Leishman stating that she declined to attend a meeting at Regional level and stating her belief that Ms Leishman would escalate the matter to Head Office. On 12 September 2014, Ms Leishman emailed Ms Woolston and told her that the investigation would be dealt with at Regional level despite her objections and afforded Ms Woolston a further opportunity to meet to discuss the allegations or to provide a written response to them. That email also stated that if Ms Woolston did not provide a response in person or in writing, Blue Care would make a decision based on the information it had at hand.34
[33] An email exchange then ensued between Ms Woolston and various persons within Blue Care and Uniting Care Human Resources in which Ms Woolston declined to attend a meeting or participate in an investigation conducted by Blue Care’s Sunshine Coast Regional Office despite being informed that the investigation would continue to be conducted by that Office with or without her and requesting that she engage in the process. When Ms Woolston did not engage in the process, Ms Leishman prepared a report for Ms McKinnon, recommending that further disciplinary action be taken against Ms Woolston.
[34] Ms McKinnon attended a meeting on 26 September with Ms Leishman and Ms Woolston. The record of that meeting indicates that when Ms Woolston was informed that Ms Pickering was upset and shaking after the incident on 16 August 2014, Ms Woolston said: “I can’t help how emotional she is – she might have other things going on outside – I can’t be responsible for that”. The record further indicates that Ms Woolston said that she was closing the meeting and was told that the issue would be finalised and an outcome provided to Ms Woolston and that she could escalate it if she wished and seek a review. Following consideration of all material, a first and final warning for inappropriate workplace behaviour was issued to Ms Woolston by Ms Harvey. That warning states that should any further incidents occur, or there is no improvement, Ms Woolston may be performance managed, face disciplinary action, or possible dismissal.
[35] Ms Woolston maintained that she shut the meeting of 26 September down because she saw out of the corner of her eye that the note taker, Ms McKinnon, was laughing at her. Ms Woolston complained about this to Blue Care Human Resource management. Ms McKinnnon did not give evidence about this allegation and Ms Woolston did not cross-examine Ms McKinnon as she had left the hearing by the time Ms McKinnon gave her evidence.
[36] On 3 November 2014, a further complaint was made by Ms Cornwill about Ms Woolston. Ms Cornwill states that the complaint related to an incident on 2 November 2014, at or around 5.30 am, when Ms Woolston approached her as the RN on duty and queried Ms Cornwill about the use of agency staff, after having seen a note about agency staff in the sign on book. Ms Cornwill further states that Ms Woolston raised her voice and demanded to know why Ms Cornwill had not told her about the agency staff and Ms Cornwill responded by saying that she the matter was sorted and would not impact on Ms Woolston’s workload and that she did not have time to tell Ms Woolston everything. According to Ms Cornwill, Ms Woolston reacted by yelling, leaning over Ms Cornwill’s desk, waved her fists and “spat” as she demanded that Ms Cornwill inform her of shift changes. Ms Woolston continued to yell at Ms Cornwill causing Ms Cornwill to feel intimidated and to fear for her safety. Ms Cornwill said that she backed away from Ms Woolston with her hands up in a “stand back defensive position” and repeated that she did not have time to tell Ms Woolston about shift changes and that the matter had been sorted.
[37] Ms Woolston left the room and then returned to again yell at Ms Cornwill saying that she was going to report Ms Cornwill. Ms Cornwill states that she told Ms Woolston that she did not care if Ms Woolston wanted to report her and that Ms Woolston refused to speak to her for the rest of the shift and gave her threatening looks. After the shift, Ms Cornwill advised Ms Steinhardt about the incident and told her that she did not feel safe working with Ms Woolston and did not wish to do so any more. Ms Cornwill also said that at the point this incident occurred she had already resigned and that she asked that she not be rostered to work with Ms Woolston until she finished working at the Bli Bli facility.
[38] A Consumer Complaints Form completed by Ms Cornwill and given to Ms Turner at 5.40 am on 2 November 2014 states that:
“Was rudely and abruptly confronted by Loretta Woolston at 0530 regarding the need for agency staff. She yelled enough to physically spit at me, was aggressive and I felt threatened for my safety. Agency staff were in the corridor at the time.” 35
[39] Ms Cornwill also sent an email to Ms Steinhardt and Ms Leishman on 4 November 2014 documenting her complaint. The terms of that email are consistent with Ms Cornwill’s evidence to the Commission. Ms Cornwill also comments that she did not feel that Ms Woolston needed to know small details that did not impact on her workload and the issue was not going to impact on Ms Woolston’s workload.
[40] In her statement to the Commission Ms Cornwill said that Ms Woolston’s repeated disrespect of her authority led her to question her ability as a leader in nursing and that she is still struggling to this day to direct staff. Ms Cornwill also said that Ms Woolston’s repeated threats to report her to Blue Care’s human resources staff made her increasingly anxious and concerned for the security of her job.
[41] Issues arose during Ms Woolston’s cross-examination of Ms Cornwill. Prior to the commencement of the hearing, Ms Woolston made a number of requests for a whiteboard to be provided in the hearing room. Ms Woolston did not indicate why she needed a whiteboard but her request was granted. At the point Ms Woolston began her cross-examination of Ms Cornwill it became apparent that she wanted Ms Cornwill to draw a diagram on the whiteboard to illustrate the layout and size of the room in which the alleged incident of 2 November occurred, and their respective positions in that room.
[42] I attempted to explain to Ms Woolston the difficulties associated with this approach. 36 The whiteboard provided was not an electronic whiteboard and no copy could be made of any diagram that Ms Cornwill might have drawn. Instead of the whiteboard, I proposed that Ms Cornwill be provided with a piece of A3 paper upon which she could draw a diagram. This would enable the diagram to be shown to Ms Woolston and Blue Care’s representative and then tendered into evidence. Ms Woolston objected to this approach and argued that a photograph could be taken of the whiteboard with either an iPhone or an iPad and that I was “messing with her defence”37. I indicated that I had neither device with me in the hearing and that in any event I had concerns about the quality and resolution of such an image. Ms Woolston responded to this proposition by stating:
“Well, you’re the decision maker. So I’ve put my objection. Now it’s up to you. So nothing I can do about your decision making.” 38
[43] In addition to the matters I raised with Ms Woolston, I also observed Ms Cornwill’s apparent distress while in the witness box, at being in close proximity to Ms Woolston in a relatively small hearing room and in my view it would have been inappropriate to require Ms Cornwill to leave the witness box and stand in front of a whiteboard in even closer proximity to Ms Woolston to draw a diagram while being cross-examined. Ms Woolston proceeded to open her cross-examination of Ms Cornwill with the following question:
“I’d just like to ask how you are feeling…Okay. Have you had time to consider your registration and the potential of what’s going to happen to you?” 39
[44] When Blue Care’s representative objected to this statement on the basis that it is a threat, I directed Ms Woolston to ask questions about Ms Cornwill’s evidence in this case. Ms Woolston then asked Ms Cornwill:
“Well, why did you lie, Louise?” 40
[45] I intervened at this point and endeavoured to assist Ms Woolston to formulate her questions and suggested that she take Ms Cornwill to the aspect of her statement that was asserted to be untrue and put to Ms Cornwill what Ms Woolston said was the true position. Ms Woolston responded by asserting that I was advocating for Blue Care and interfering in her case. Ms Woolston then stated that:
“Well, gee, I've run out. If I can't ask her about being a liar, I've run out of questions.” 41
[46] Ms Woolston and I then had the following exchange:
“MS WOOLSTON: For the recording, I've completed my questions. Thank you.
THE DEPUTY PRESIDENT: Last opportunity - if you wish to challenge the credit of this witness, you are - and don't yawn in my face either - you are required to put to her precisely what in her statement you say is untrue and the alternative - - -
MS WOOLSTON: You have told me that what I have questioned her on is not good enough for this Commission.
THE DEPUTY PRESIDENT: It's not good enough to just - - -
MS WOOLSTON: I have now assessed - excuse me - - -
THE DEPUTY PRESIDENT: No, I will not excuse you.
MS WOOLSTON: I have now made an assessment.
THE DEPUTY PRESIDENT: Be quiet while I tell you.
MS WOOLSTON: All right. I'm thank you to be quiet.
THE DEPUTY PRESIDENT: Good. Be quiet. The only way that you can say to a witness, "Your statement is not true," is to point to exactly the statement that you say is not true in her witness statement and put to her the alternative. So, "Ms Cornwill, I put it to you that what you said in paragraph X is not right, and this is what in fact happened. I put it to you that I did not do what you've asserted in paragraph 9 and, in fact, I did this." That's the appropriate way to do it.
I'm now giving you a final opportunity to do that. If you choose not to take that opportunity, I will allow Mr Longwill to re-examine the witness and then I will excuse her. And if you sit there and do nothing and say nothing when I've given you the opportunity to question the witness, I will have no option but to take everything she said as the truth and as unchallenged by you. Just so you understand.
MS WOOLSTON: For the record, under duress, I have no questions for this witness.
THE DEPUTY PRESIDENT: There is no duress. I am giving you an opportunity to ask questions. If you choose not to take it, that is a matter for you, Ms Woolston. Would you like a few minutes to frame some questions?
MS WOOLSTON: For the record again I will state under duress I have no questions for this witness.” 42
[47] In relation to this incident, Ms Woolston said in her Form F2 application that on the morning of 2 November 2014 Ms Cornwill held a 19 year old agency worker in deep conversation while that worker was supposed to be assisting with hoisting and showering residents. According to Ms Woolston the conversation was about the television series entitled “Doctor Who”. In an emailed account of the incident in response to Ms Cornwill’s complaint, Ms Woolston said that she initiated a discussion with Ms Cornwill on that morning because she heard her phoning the agency and went to inquire if agency staff were coming to the facility and if so, where they would be located. Ms Woolston said that she determined that it was unlikely that Ms Cornwill would communicate with her because all communication on that shift between Ms Cornwill and Ms Woolston had been initiated by Ms Woolston.
[48] Ms Woolston said that it was a busy time of the morning and no time management or workload issues were discussed with her, or agency or other staff. Ms Woolston said that she started to say to Ms Cornwill: “When I’m working…” and was cut off mid-sentence by Ms Cornwill who said in an escalated manner: “I don’t have time for this”. Ms Woolston said that she attempted to re-engage with Ms Cornwill so that she could complete her responsibilities while faced with an increasing communication barrier with the end result that Ms Cornwill told Ms Woolston: “I don’t care, as long as I get home on time.”
[49] Ms Woolston also alleged in her response that there was an earlier escalation of Ms Cornwill’s speaking tone during a discussion about a skin tear. In her Form F2, Ms Woolston asserted that Ms Cornwill had already resigned when the incident on 2 November occurred, and that no harm could have come to Ms Cornwill from Ms Woolston’s complaint. Ms Woolston also said that Ms Cornwill had made a vexatious and false complaint against her because of Ms Cornwill’s relationship with another employee, Leah, who had resigned.
[50] Under cross-examination, Ms Woolston agreed that it is the role of the RN to provide staff and that the RN is the decision maker in this regard. Ms Woolston maintained that it was her role to give information to the RN and that is what she was doing on 2 November 2014. Ms Woolston also said that staff are supposed to work as a team and that it would have been helpful to be told if there was a staff deficit and that it was abnormal that Ms Cornwill did not communicate as other RNs would have done. In response to the proposition that agency staff would not be arriving during her shift, Ms Woolston said that there would be a cross-over and that in the last half hour of the shift she would have assisted in the hostel where she believed that agency staff would be working. In response to the proposition that agency staff working on the shift would not affect her or be of relevance, Ms Woolston said that she is supposed to be respectful of people including incoming staff that are going to have the workload on the next shift. Ms Woolston also said that Ms Cornwill was lying and trying to make out that her questions about the agency staff were abnormal. According to Ms Woolston, what was abnormal was to have an RN [Ms Cornwill] who did not want to be involved in team work.
[51] Ms Leishman and Ms Steinhardt gave evidence about the investigation of Ms Cornwill’s complaint and a subsequent complaint that had been made by Ms Woolston by email on 3 November, about the same incident. Neither Ms Leishman nor Ms Steinhardt were cross-examined. Their evidence establishes that a show cause letter was sent to Ms Woolston on 5 November 2014, requesting that Ms Woolston attend a meeting on 10 November 2014 to discuss allegations set out in the letter, including that Ms Woolston had demonstrated aggressive, threatening and intimidating behaviours towards Ms Cornwill on 2 November 2014, by yelling, waving of fists, standing in a threatening and aggressive position, abrupt and/or angry verbal communication and storming out of room without giving Ms Cornwill a chance to explain the situation. The show cause letter also acknowledged Ms Woolston’s email setting out her version of events and informed her that this would be discussed at the meeting on 10 November 2014.
[52] Ms Woolston declined to attend the meeting on 10 November 2014. A letter was sent to Ms Woolston on 18 November 2014 advising her that the meeting would be rescheduled to 20 November 2014 and that Ms Woolston was also welcome to provide her response in writing. That letter informed Ms Woolston that if she did not provide a response, Blue Care would determine the outcome of the investigation based on the information at hand. 43 Ms Woolston did not attend the rescheduled meeting and on 21 November 2014 did not report for her shift. Ms Woolston informed Ms Steinhardt by telephone that she had not reported for her shift due to a human resources issue and that she was planning to sue everyone.
[53] There was a range of correspondence from Ms Woolston in this period in which she continued to object to Blue Care’s Regional Human Resources Management staff dealing with her matters and seeking that her complaint be elevated to Blue Care’s Human Resources Corporate Office and to senior Human Resource Management staff of Uniting Care. There is evidence that this request was considered by a range of Blue Care management and it was determined that the matter was being appropriately dealt with at the Regional level. Ms Woolston was informed that her request in this regard was refused.
[54] Ms Leishman also gave evidence about a telephone discussion with Ms Woolston on 20 November 2014 during which Ms Woolston said that she was forced to deal with Ms Leishman and she believed that Ms Leishman constantly lied about things. Ms Woolston advised that it was not convenient for her to meet Ms Leishman on 20 November 2014 and requested a telephone conference. Ms Leishman agreed to conduct a telephone conference and Ms Woolston ended the call after requesting a telephone number for Ms Bartley. Ms Bartley corresponded with Ms Woolston by email on 20 November 2014 acknowledging her refusal to attend the meeting scheduled for that date and informing Ms Woolston that she should provide a written response to the allegations by close of business on 21 November 2014. That email went on to state that if Ms Woolston failed to provide a response the investigation would be concluded on the basis of the material available to Blue Care. Ms Woolston did not provide a written response to the allegations.
[55] On 2 December 2014, Ms Leishman prepared a report in relation to Ms Woolston recommending that further disciplinary action be taken up to and including termination of Ms Woolston’s employment. That report was approved by Ms McKinnon and M Holland, the Acting General Manager at the time of the Sunshine Coast cluster. That report was then considered by Ms Town and Ms Russell. Ms Town and Ms Russell held a discussion with Ms McKinnon. Consideration was given to allowing Ms Woolston a further opportunity to show cause why her employment should not be terminated. It was decided that given Ms Woolston’s conduct throughout the investigation and her consistent refusal to engage with Blue Care’s Human Resources Management team, a further show cause process would be futile. Ms Russell said that she could not see how Ms Woolston would participate in a show cause process or how the relationship could be repaired and that she saw no reason to issue a show cause notice in those circumstances.
[56] On 4 December 2014, Ms Russell signed off on a letter terminating Ms Woolston’s employment and this was forwarded to Ms Woolston. Ms Woolston was also advised of the termination of her employment in a telephone call made to her by Ms McKinnon. Ms Woolston said that she worked for the entire period of the investigation right up to the day she was dismissed, and increased her hours during this period.
LEGISLATION
[57] In considering whether a dismissal was harsh, unjust or unreasonable, s.387 of the Act sets out those matters that the Commission must take into account, as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[58] A valid reason for dismissal is one that is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.” 44 The reason for termination must also be defensible or justifiable on an objective analysis of the relevant facts,45 and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.46 The onus rests with the employer to establish that the misconduct as alleged took place and it constituted a valid reason for dismissal: Culpeper v Intercontinental Ship Management Pty Ltd.47
[59] To determine whether there was a valid reason for a dismissal relating to conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred. 48 The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct.49 The Commission must make a finding as to whether the conduct occurred based on the evidence before it.50
[60] The matters in s.387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:
Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;
Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or
Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer. 51
CONSIDERATION
Was there a valid reason for Ms Woolston’s dismissal?
[61] I am satisfied and find that there was a valid reason for Ms Woolston’s dismissal based on inappropriate interactions; with Ms Pickering and Ms Cornwill respectively. In both cases I prefer the evidence of Ms Pickering and Ms Cornwill to that of Ms Woolston. I prefer their evidence for the following reasons. Ms Woolston’s conversation with Ms Pickering on 16 August 2014 was in the context of Ms Woolston stating, with less than two days’ notice, that she did not wish to work a Sunday shift for which she was rostered. Ms Woolston offered no evidence as to why she could not work the shift either in the hearing of her application, or at the time she discussed the matter with Ms Pickering. Understandably, Ms Pickering was concerned about Ms Woolston’s non-availability and told her that she would need to arrange shift swap given the short notice. In the circumstances, it is unsurprising that Ms Pickering’s response to Ms Woolston was “unwelcoming”. Ms Woolston conceded that Ms Pickering’s request that she arrange a swap with a colleague to cover the shift was reasonable.
[62] Notwithstanding that, Ms Woolston responded to Ms Pickering’s request in an entirely unreasonable manner. In this regard, I am satisfied and find that Ms Woolston stood in the doorway of the office in which Ms Pickering was located with raised arms. Even if I accept that Ms Woolston’s arms were raised because she was leaning on a door, for Ms Woolston to have raised her arms at all, was aggressive. Ms Woolston conceded that her voice is loud and that she did say to Ms Pickering that she was “sick of all of this shit” and that she would report her to head office. In my view, this response on the part of Ms Woolston to a perfectly reasonable request made by Ms Pickering in relation to Ms Woolston arranging a swap for the shift in question, was unreasonable. It was also reasonable for Ms Pickering to request Ms Woolston to clarify whether she wanted to take leave for the shift. If Ms Pickering followed Ms Woolston to clarify this question, it was because Ms Woolston walked away leaving the important matter of how a shift that she was rostered to work in less than two days, would be filled. Ms Woolston’s propensity to walk away when asked a question that she does not wish to answer was demonstrated in her conduct in the hearing of her unfair dismissal application, as well as the evidence of witnesses for Blue Care.
[63] It is not to the point that Ms Woolston was frustrated or that she has a loud voice. Quite simply, Ms Pickering should not have been subjected to such behaviour in circumstances where she was raising perfectly reasonable questions about how the shift would be covered and what arrangements Ms Woolston had made or proposed to make in order to ensure that this occurred.
[64] I am also satisfied and find that on 21 August and 2 November 2014, Ms Woolston approached Ms Cornwill in an aggressive and unreasonable manner, and had altercations with Ms Cornwill. In relation to the administration of morphine to a resident on 21 August 2014, it was reasonable that Ms Woolston relay the resident’s concerns to Ms Cornwill. It was unreasonable that Ms Woolston continued to agitate the matter in circumstances where Ms Cornwill, who was the RN on duty, had informed Ms Woolston that the morphine was to be administered in accordance with Doctor’s orders and that Ms Cornwill was satisfied that the resident was not allergic to morphine.
[65] In relation to the incident on 2 November 2014, I am satisfied and find that Ms Woolston behaved aggressively to Ms Cornwill in relation to the engagement of agency staff. I accept that the staff in question would not have worked on Ms Woolston’s shift and whether agency staff were engaged or not could have had no effect on her workload. Ms Woolston said that she raised the issue with Ms Cornwill because she overheard her on the telephone to the agency discussing the engagement of agency staff. It is more probable than not that Ms Woolston decided to comment on a matter that she had no business to involve herself in and that she did so in an unreasonable and aggressive manner.
[66] The manner in which Ms Woolston conducted her case made it difficult to understand, or to accept her version of events. As a general rule, employees who are dismissed for aggressive and inappropriate behaviour in the workplace should make every attempt to avoid demonstrating that behaviour when conducting an application in the Commission alleging unfair dismissal. Unfortunately, in conducting her unfair dismissal application, Ms Woolston demonstrated exactly the conduct that Blue Care asserts led to her dismissal. Even allowing for the difficulty encountered by an unrepresented applicant conducting a case in the Commission, Ms Woolston’s behaviour towards witnesses for Blue Care and Mr Longwill who conducted the case on behalf of Blue Care, was appalling. Mr Longwill was required to contend with a running commentary laced with sarcasm directed at him by Ms Woolston while he attempted to conduct the case for Blue Care. Witnesses for Blue Care were treated aggressively and were subjected to inappropriate comments.
[67] Every attempt that I made to focus Ms Woolston’s attention on matters relevant to her case was met with hostility, rudeness and threats that Ms Woolston would walk out – an action which Ms Woolston ultimately took.
Was Ms Woolston notified of the reason or her dismissal?
[68] I am satisfied and find that Ms Woolston was notified of the allegations about the behaviour that led to her dismissal in a show cause letter dated 5 November 2014 52 and then again in a further show cause letter dated 18 November 2014.53 Blue Care further communicated its reasons for dismissal to Ms Woolston in a letter dated 4 December 2014.54
Was Ms Woolston given an opportunity to respond to the reasons for her dismissal?
[69] It is not disputed that Ms Woolston was afforded an opportunity to respond to the allegations that led her dismissal on numerous occasions; in person, in writing and also by teleconference. Ms Woolston failed to provide a reasonable response to the allegations, other than relying on her own email, dated 3 November 2014, that set out her version of events on 2 November involving Ms Cornwill.
[70] Blue Care submits that instead of cooperating with Blue Care throughout the investigation process, Ms Woolston’s conduct was obstructive to the point of vexatious. Blue Care further submits that Ms Woolston exhibited the same intimidating, threatening and uncooperative behaviour throughout the investigation process that had led to the complaints against her in the first place. Ms Woolston has not established that she had reasonable grounds to refuse to participate in any discussions with Regional Human Resource Management Staff.
[71] I accept Blue Care’s evidence and submissions in relation to this matter, and I am satisfied that Ms Woolston was given an opportunity to respond to the reasons for her dismissal, but failed to do so without reasonable cause.
Was there an unreasonable refusal by Blue Care to allow Ms Woolston to have a support person present to assist at any discussions relating to the dismissal?
[72] Ms Woolston was provided with an opportunity to have a support person present by Blue Care it its letters to her on 5 November 2014 and 18 November 2014 55. I accept that Blue Care did not unreasonably refuse Ms Woolston to have a support person present to assist at any discussions relating to the dismissal. In any event, Ms Woolston refused to attend such discussions, and did so unreasonably.
If the dismissal related to unsatisfactory performance - whether Ms Woolston had been warned about that unsatisfactory performance before the dismissal?
[73] I am satisfied and find that Blue Care attempted to manage Ms Woolston’s aggressive, intimidating and threatening behaviour over a substantial period of time. Ms Woolston had previously been issued with a first and final warning in October 2013 in relation to unsatisfactory performance. Ms Woolston was made aware that Blue Care did not condone the type of behaviour that led to the first and final warning. Despite this, Ms Woolston continued to exhibited similar behaviour that ultimately led to her dismissal.
Did the size of the employer’s enterprise and the absence of dedicated human resource management specialists or expertise, impact on the procedures followed in effecting the dismissal?
[74] Blue Care is a very large employer with a significant team of dedicated human resource management specialists. This factor is not relevant to whether Ms Wooston’s dismissal was unfair.
Any other matters that the FWC considers relevant?
[75] I accept that Ms Woolston was dedicated to the care of residents at Blue Care’s Bli Bli facility and that there were no issues with her conduct, capacity or work performance in this regard. However, this does not outweigh Ms Woolston’s track record of inappropriate and aggressive interactions with work colleagues and her refusal to engage in processes in the workplace to investigate and resolve those issues.
[76] While there were some discrepancies in Ms Pickering’s evidence – in particular whether she followed Ms Woolston, when Ms Woolston left the area in which the discussion of 16 August 2013 occurred – these were not sufficient to cast doubt on Ms Pickering’s evidence about Ms Woolston’s conduct on that date.
[77] I also accept that Ms Woolston had made a number of complaints about work colleagues and Blue Care’s Regional Human Resource Management team, before the incidents that led to her dismissal. However, there is insufficient evidence upon which I could make findings about the bullying and harassment alleged by Ms Woolston. There is also no evidence upon which I could base a finding that Blue Care’s Regional Human Resource Management team failed to appropriately handle Ms Woolston’s case.
[78] The evidence establishes that Blue Care conducted a detailed and considered investigation and analysis of matters involving Ms Woolston and determined that she should be dismissed. Ms Russell considered whether a further show cause process should be conducted and decided that given Ms Woolston’s refusal to engage with earlier processes, that this would be an exercise in futility. I agree with that assessment.
CONCLUSION
[79] For the reasons set out above, I am satisfied and find that Ms Woolston was not unfairly dismissed and that her application for an unfair dismissal remedy should be dismissed. An Order to that effect will issue with this Decision.
DEPUTY PRESIDENT
1 Woolston v The Uniting Church in Australia Property Trust (Q.) t/a Blue Care Bli Bli Aged Care Facility [2015] FWCFB 4032.
2 Exhibit 1 Form F2 – Unfair Dismissal Application
3 Exhibit 33 Witness Statement of Narelle Steinhardt
4 Exhibit 31 Witness Statement of Jane Harvey
5 Exhibit 30 Witness Statement of Karrin Leishman
6 Exhibit 32 Witness Statement of Patricia McKinnon
7 Exhibit 34 Witness Statement of Wendy Russell
8 Exhibit 27 Witness Statement of Peita Town
9 Exhibit 28 Witness Statement of Louise Cornwill
10 Exhibit 29 Witness Statement of Jacelle Pickering
11 PN2 to PN9.
12 PN42 to PN75.
13 PN1822.
14 Transcript of proceedings 14 May 2015 PN 2237.
15 Exhibit 5.
16 Exhibit 5 – Blue Care Code of Conduct and Declaration
17 PN637
18 Transcript of proceedings 13 May 2015, PN655
19 Statement of Jacelle Pickering Exhibit 29 Annexure “JP-1”.
20 PN1839; PN1857; PN1859.
21 PN1858.
22 PN1859.
23 PN232.
24 PN232.
25 Transcript of proceedings 13 May 2015 PN231.
26 PN248.
27 Transcript of proceedings 13 May 2015 PN248.
28 Transcript of proceedings 13 May 2015 PN769; PN797 to PN798.
29 Transcript of proceedings 13 May 2015 PN 789; PN798.
30 Transcript of proceedings 13 May 2015 PN794.
31 Transcript of proceedings 13 May 2015 PN1221-1222.
32 Exhibit 33 Statement of Narelle Steinhardt Annexure “NS-11”.
33 Ibid Annexure “NS-12”.
34 Exhibit 30 Statement of Karinn Leishman Annexure “KL-49”.
35 Exhibit 28 Statement of Louise Cornwill Annexure “LC-4”.
36 PN1729 to PN 1739.
37 PN1734.
38 Transcript of proceedings 14 May 2015 PN1736.
39 Transcript of proceedings 14 May 2015 PN1757.
40 PN1776.
41 PN1800.
42 PN1811 to PN1824.
43 Statement of Narelle Steinhardt Exhibit 33 Annexure “NS-27”.
44 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
45 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.
46 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.
47 [2004] AIRC 261.
48 Edwards v Giudice(1999) 94 FCR 561 [6]‒[7]. See also Rail Corporation New South Wales v Vrettos (2008) 176 IR 129 [27]; Container Terminals Australia Ltd v Toby (unreported, AIRCFB, Boulton J, Marsh SDP, Jones C, 24 July 2000) Print S8434 [13].
49 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].
50 Ibid.
51 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.
52 Exhibit 33.
53 Ibid.
54 Exhibit 34.
55 Exhibit 33.
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