Palfreyman v Alfred Health - [2024] FedCFamC2G 914

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Palfreyman v Alfred Health (No 2) [2024] FedCFamC2G 914

File number: MLG 2955 of 2021

Judgment of: JUDGE SYMONS

Date of judgment: 18 September 2024

Catchwords: INDUSTRIAL LAW – Fair Work – where applicant dismissed from employment following lengthy absence due to workplace injury – where applicant employed in specialist nurse practitioner role – where applicant alleged dismissal adverse action was taken because she exercised workplace rights within the meaning of s 341 of the Fair Work Act 2009 (Cth) – identification of decision makers – where not all decision makers gave direct testimony – whether respondent able to discharge statutory reverse onus – finding that respondent contravened s 340(1) of the Fair Work Act – whether respondent breached obligations under the applicable Enterprise Agreement – whether respondent failed to assist the applicant to remain at work or return to work in suitable employment – no breach of Enterprise Agreement established – matter adjourned for hearing on penalty and relief

Legislation:
Evidence Act 1995 (Cth), s 140

Fair Work Act 2009 (Cth), ss 50, 340, 341, 342, 360, 361, 539, 793

Occupational Health and Safety Act 2004 (Vic)
Workers Injury Rehabilitation and Compensation Act 2013 (Cth)

Nurses and Midwives (Victorian Public Health Sector) (Single Interest Employers) Enterprise Agreement 2016-2020, clauses 99, 100, 104

Cases cited:
Alam v National Australia BankLimited (2021) 288 FCR 629; [2021] FCAFC 182

Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 369

Wong v National Australia Bank Limited (2022) 318 IR 148; [2022] FCAFC 155

Division: Division 2 General Federal Law

Number of paragraphs: 147

Date of last submissions: 24 May 2023

Date of hearing: 22-24 May 2023

Place: Melbourne

Counsel for the Applicant: Mr I Latham

Solicitor for the Applicant: JPM Law

Counsel for the Respondent: Mr M Rinaldi

Solicitor for the Respondent: DLA Piper

ORDERS

MLG 2955 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
STACEY PALFREYMAN
Applicant

AND:
ALFRED HEALTH
Respondent

ORDER MADE BY:

JUDGE SYMONS

DATE OF ORDER:

18 SEPTEMBER 2024

THE COURT ORDERS THAT:
1.The proceeding be adjourned for a directions hearing at 2.15 pm on 10 October 2024 to fix a timetable for a hearing on the question of relief, including any penalties.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS:
INTRODUCTION

In this proceeding the applicant, Ms Stacey Palfreyman, alleges that the respondent, Alfred Health, contravened s 340(1) of the Fair Work Act 2009 (Cth) (FW Act) by taking adverse action against her because she exercised one or more workplace rights. In substance, Ms Palfreyman alleges she was dismissed because:
(a)she had, or exercised, a workplace right when she made a complaint that she had been bullied in the course of her employment which complaint constituted a complaint in relation to her employment within the meaning of s 341(1)(c)(ii) of the FW Act; and/or
(b)because she had a workplace right in that she was entitled to the benefit of a workplace law within the meaning of s 341(1)(a) of the FW Act, being the Occupational Health and Safety Act 2004 (Vic).
Ms Palfreyman also alleges that Alfred Health contravened s 50 of the FW Act by breaching clauses 99, 100 and 104 of the Nurses and Midwives (Victorian Public Health Sector) (Single Interest Employers) Enterprise Agreement 2016-2020 (Enterprise Agreement) by, amongst other things, failing to return her to the workplace following her absence from work due to injury.
The trial of this matter took place on 22, 23 and 24 May 2023. Mr Latham of counsel appeared for Ms Palfreyman and Mr Rinaldi of counsel appeared for Alfred Health.
At trial, Ms Palfreyman relied on the affidavit evidence of herself and Industrial Relations Organiser with the Victorian Branch of the Australian Nursing & Midwifery Federation (ANMF), Mr Simon Olden. Both adopted their affidavits as their evidence in chief. Both were cross-examined.
Alfred Health relied on the evidence of three witnesses: Deputy Chief Operating Officer, Mr Martin McCall-White; Return to Work Coordinator, Mr John Wildes; and Director of Human Resources and Employee Experience, Ms Louise Vecchi. Each filed an affidavit prior to trial and adopted their affidavit as evidence in chief. Each of these witnesses was cross-examined.
At the commencement of the hearing, Alfred Health sought leave, against the opposition of Ms Palfreyman, to file affidavits of three individuals; Mr Craig Till, Ms Danielle Bolster and Mr Ross Longhurst. I refused the application for reasons that were given at the time.
Both parties filed detailed written opening and closing submissions, which were supplemented by oral closing submissions on the final day of trial.
BACKGROUND
The following matters are not controversial. They are agreed between the parties and/or are taken from documents that were put before the Court without objection and whose content speaks for itself.
Alfred Health is, in broad terms, a hospital and provider of healthcare services in Victoria. One of these services is the Hospital Admission Risk Program (HARP). The HARP offers a clinical outreach service called the Mobile Assessment and Treatment Service (MATS), which provides access to acute medical care for elderly clients in the community. MATS is one of several subdivisions of HARP.
Ms Palfreyman is endorsed by the Australian Health Practitioner Regulation Agency as a Nurse Practitioner.[1]
[1] Affidavit of Stacey Palfreyman affirmed 21 September 2022 (Palfreyman affidavit) at [13]; CB 46.
On 28 September 2015, Ms Palfreyman commenced full-time employment with Alfred Health in the position of Aged Care Nurse Practitioner in the MATS within the HARP.
The Role and Scope of Practice guideline for the role of Aged Care Nurse Practitioner, which was largely created by Ms Palfreyman[2] explains that:
MATS is one of the services under HARP and provides rapid-response clinical outreach for elderly clients residing in RACFs [residential aged care facilities] of in their own home. Referrals are generated by facility staff, GPs, and hospital staff. MATS undertakes assessment and care of clients presenting with gerontic and general health conditions; it delivers short term episodic clinical assessment and care and makes referrals to other services such as Hospital in the Home and Palliative Care where appropriate. MATS works closely with GPs and inpatient units as appropriate for the client.
[2] Exhibit R1.
Workers Compensation Claim
In late November 2018, Ms Palfreyman submitted to Alfred Health a Workers Injury Claim Form for compensation for loss of income because of a work-related injury (Workers Injury Claim).[3] Ms Palfreyman’s claim related to what she described as the workplace bullying/harassment behaviour of Radmilla Mitchell and Emina Pilav, then nurses in MATS, and the failure of Felice Borghmans, the then manager of both HARP and MATS, to appropriately manage the workplace behaviour of Ms Mitchell and Ms Pilav.
[3] Annexure SAP-1 to the Palfreyman affidavit; CB 69–70.
On 30 November 2018, Ms Palfreyman ceased performing work for Alfred Health and thereafter, on a regular basis, provided certificates of capacity that covered the period beginning 30 November 2018 and ending 22 June 2021. The significance of these certificates is disputed by the parties and is a matter to which I will return.
On 7 December 2018, a WorkSafe Certificate of Capacity provided by Ms Palfreyman’s treating medical practitioner identified Ms Palfreyman’s clinical diagnosis as “Anxiety secondary to workplace bullying/harassment. Excess work load”.[4]
[4] Annexure JW-1 to the affidavit of John William Wildes affirmed 23 December 2022 (Wildes affidavit); CB 335–336.
On 24 December 2018, Ms Palfreyman attended upon Associate Professor Varma for the purpose of an independent medical examination. Professor Varma’s report stated: [5]
the only barrier I can see [to engage in rehabilitation or return to work] is the breakdown of the relationship between her and the other six nurses. She clearly says she cannot return to work with them, as it will negatively affect her.
[5] Annexure SAP-1 to the Palfreyman affidavit; CB 114–122.
Although the reference to “six nurses” (rather than the two referred to in the Workers Injury Claim) is not explained, nothing turns on it.
On 4 January 2019, Allianz Australia Worker’s Compensation (VIC) sent a letter to Ms Palfreyman advising that the Workers Injury Claim had been accepted.[6] As a result, from January 2019 until 22 May 2021, Ms Palfreyman was paid 130 weeks of workers’ compensation payments.
[6] Annexure SAP-1 to the Palfreyman affidavit; CB 98–101.
On 14 February 2019, Ms Palfreyman submitted a written complaint about being bullied by Ms Mitchell and Ms Pilav to Alfred Health during a meeting with Mr Andrew Hoiles, the then Director of Nursing, Caulfield (Ms Palfreyman’s complaint).[7]
[7] Annexure SAP-1 to the Palfreyman affidavit; CB 219 – 227.
In early March 2019, Alfred Health engaged Chris Hicks of CWH Mediation & Workplace Relations Pty Ltd to conduct a workplace investigation into Ms Palfreyman’s complaint (External Investigation).
On 24 June 2019, Mr Sean Curtain, former director of HR services and Staff Welfare for Alfred Health, advised Ms Palfreyman by email that during his investigation, Mr Hicks had found that some of the allegations contained in the Palfreyman complaint were substantiated and that he had met with both Ms Mitchell and Ms Pilav individually to confirm with them the outcomes of the various allegations against them.[8]
[8] Annexure SAP-1 to the Palfreyman affidavit; CB 271-272.
On 26 June 2019, Ms Palfreyman responded by email, seeking further detail about which allegations were substantiated and asking, “how does this impact my return to work in my previous/current role?”.[9]
[9] Annexure SAP-1 to the Palfreyman affidavit; CB 273.
In an email sent on 28 June 2019, Mr Curtain identified the allegations that had been substantiated and advised, in relation to Ms Palfreyman’s return to work that:
…those plans are at present I understand subject to your WorkCover status and current capacity to work medical certificates. I hope you are able to continue to work with John Wildes from OH&S to develop a suitable return to work plan as you recover from your injuries. As with all RTW plans in WorkCover situations, it is our goal and obligation to ensure you are able to return to pre injury duties and wherever possible, in your previous role.[10]
[10] Annexure SAP-1 to the Palfreyman affidavit; CB 274.
On 1 August 2019, Ms Palfreyman attended a meeting with Mr Hoiles, Mr Wildes and Mr John Ashfield, Director Community and Ambulatory Services for Alfred Health. Ms Palfreyman was accompanied by Mr Olden who recorded a contemporaneous file note of what was discussed at the meeting:[11]
[11] Affidavit of Simon Olden affirmed 20 September 2022 (Olden affidavit) at [7] and Annexure SO -1; CB 306 -307 and transcribed by Mr Olden during his evidence in chief; T63 line 20 - T64 line 36.
AH [Andrew Hoiles]:   Wanting to make sure that you’re okay, maybe where to from   here
IRO [Mr Olden]:        To the executive [Mr Hoiles, Mr Wildes, Mr Ashfield] – need to put minds to how to facilitate a reasonable plan for MBR [member] RTW [return to work] when has capacity.
AH:Agreed. Could be a structured/transitional step. Uncertain at this time. But will work with you to develop.
IRO:To the executive – consider putting minds to reviewing whether another governance structure can be implemented to administer her role as to avoid an exacerbation of her injury.
JA [John Ashfield]:     SP [Stacey Palfreyman] does not want to RTW at HARP-MATS?
SP:Correct – given the c/o [complaint] made of management team – has no confidence in Felice Borghmans
JA:Alfred will now take this information for further consideration.
IRO: indicative timeframe?
AH:Couple of weeks – need to consult with upper executive.
Stacey will get another cert of capacity next week.
AH:  any further questions?
SP:  unsure of c/o outcome
IRO à JA:                 would be good to provide indication (material outcome)
JA:Team culture/ behaviours/staffing profile/ review has been undertaken
Work also being done about how MATS will interface with HITH [Hospital in the Home]//HARP.
On 21 January 2020, Ms Palfreyman attended upon Dr Timothy Entwisle for another Independent Medical Examination. The following day, Dr Entwisle produced a report.[12] In regard to specific questioning, Dr Entwisle provided the following responses:[13]
[12] Annexure SAP-1 to the Palfreyman affidavit; CB 128-133.
[13] Annexure SAP-1 to the Palfreyman affidavit; CB 132-133.
1.   Ms Palfreyman presents with a Major Depressive Illness (recurrent) in partial remission.
…
6.   It appears that further work with the employer would be possible but no positions appear available at this time for reasons detailed in my report.
7.   Ms Palfreyman’s current presentation does not impact upon her work capacity to perform tasks from a cognitive perspective.
8.   I consider that Ms Palfreyman does have a capacity for pre-injury duties and hours at a different workplace.
9.   Ms Palfreyman does have a capacity for suitable employment from a psychiatric perspective.
….
12.   Ms Palfreyman has a current capacity for work.
13.   As noted, there are barriers in regard to Ms Palfreyman returning to work at the Alfred Hospital being her perception of her workplace and the unavailability of a suitable position at that hospital.
14.   To the extent that Ms Palfreyman has an incapacity for work that incapacity is still materially contributed to by the claimed injury (at the Alfred Hospital) noting that she does however have capacity for work in pre-injury duties at an alternative workplace.
On 18 March 2020, Mr Hoiles wrote to Ms Palfreyman, inviting her to attend a meeting on 26 March 2020 for the purpose of “discussing the withdrawal of the offer of Return to work duties”.[14] The context for this invitation and meeting is discussed later in these reasons.
[14] Annexure SAP-1 to the Palfreyman affidavit; CB 278.
On 21 May 2020, Ms Palfreyman attended a meeting with Mr Hoiles and Mr Wildes and was supported by Mr Olden, who recorded the following contemporaneous file note of what was discussed at the meeting:[15]
[15] Annexure SO-1 to the Olden affidavit; CB 308-309 and transcribed by Mr Olden during his evidence in chief; T64 line 45 – T66 line 28.
JW:To check up/in with SP. Question of withdrawal of duties as part of RTW process/options.
AH:restated that prior work done to locate like positions for NP [Nurse Practitioner] (done with Alfred Exec)
? Case MK
{positions were only close positions to former NP role
? ANUM
Now to next steps
SP:so what are next steps?
AH:workcover process still on foot. Heard that MBR has been undertaking additional work outside of AH.
SP:Few days a week private practice/GP clinic.
JW:Allianz will continue to make payments directly to MBR now – ongoing compensation/top up to 130, Still employee of Alfred Health. Staff member accumulating entitlements à then around 130-mark HR will review SP ongoing employment.
SP:So nothing else changes but for Alfred Health not actively trying to seek alternative/ RTW options as obligation has ceased.
JW:Yes + SP can apply for any future roles/positions @ AH
AH:So Allianz take over responsibility to source other employment options etc. + will continue to offer references for SP.
On 27 May 2020, Mr Hoiles sent a letter to Ms Palfreyman which stated:[16]
[16] Annexure SAP-1 to the Palfreyman affidavit; CB 279.
Dear Stacey
Re: Withdrawal of Modified Duties
I am writing in relation to your WorkCover claim for the injury you sustained in the Workplace on 23^rd November 2018 and the provision of suitable duties to meet your ongoing medical restrictions.
You have now been providing WorkCover Certificates of Capacity for more than 52 weeks. During this time Alfred Health has been offering to provide you with suitable duties to assist you to return to work. Your most recent Certificate of Capacity dated 20^th April 2020 states that you have a capacity for suitable employment, but that you are “Unable to return to work in previous role due to work environment breakdown of relationships. Alfred Health unable to provide appropriate and comparable alternative role as a Nurse Practitioner. Stacey has the ability to return to work with full duties in a different work environment (outside Alfred Health).”
The Workplace Injury and Rehabilitation and Compensation Act 2013 requires an employer to provide injured workers with suitable duties to assist in their return to work and recovery. The employer is required to provide these duties for a period of 52 weeks while the worker is medically certified as not being able to perform their full pre-injury duties. Alfred Health has met this requirement.
The most recent certificate from your treating medical practitioner states that you do not have a capacity to perform your pre-injury duties. Alfred Health is no longer able to offer to provide further duties that meet your medical restrictions from 21st May 2020.
Please note that your employment with Alfred Health has not been terminated. A decision about your ongoing employment may need to be made at some future date but not before further consultation with you. As part of that process we will need to obtain information about your capacity to return to your substantive role from you and your treating doctor.
….
On 30 November 2020, Ms Palfreyman attended upon Dr Entwisle for re-examination. Amongst other things, Dr Entwisle concluded that “Ms Palfreyman does have capacity to increase her hours to full pre-injury duties and hours at her current workplace in her current role…” [17] with the “current role” being a reference to Ms Palfreyman working with a group of general practitioners providing aged care services for a facility in Sandringham.
[17] Annexure SAP-1 to the Palfreyman affidavit; CB 144-148.
On 8 February 2021, Ms Danielle Bolster, Director of Nursing, Caulfield, sent a letter to Ms Palfreyman requesting further information from Ms Palfreyman’s treating medical practitioner relating to her “current work capacity and if there is any potential likelihood of returning to your substantive full-time position as a Nurse Practitioner within HARP at Alfred Health”.[18] In response, Ms Palfreyman provided her most recent Certificate of Capacity.
[18] Annexure SAP-1 to the Palfreyman affidavit; CB 280.
On 12 March 2021, Ms Bolster acknowledged receipt of the Certificate and requested Ms Palfreyman provide the following further information from her treating medical practitioner:[19]
•Prognosis with respect to your capacity to return to your substantive position
•Potential return to work date, and
•What steps we can take to assist you with your return to work, any limitations or restrictions that may be necessary.
[19] Annexure SAP-1 to the Palfreyman affidavit; CB 281.
On 25 March 2021, a letter was provided in response to Ms Bolster from Ms Palfreyman’s treating medical practitioner, Dr Marlo Roberts, which stated that Ms Palfreyman “would be able to return to work immediately in her role as a nurse practitioner if an appropriate safe environment was provided, including Stacey working in a team where she will be supported and not be required to interact with the team members who contributed to the injury”.[20]
[20] Annexure SAP-1 to the Palfreyman affidavit; CB 282.

On 20 May 2021, Ms Palfreyman attended a meeting with Ms Bolster and Ms Mattiacci, HR Business Partner for Alfred Health, to discuss her current work capacity and likelihood of returning to work in her substantive position. She was accompanied by Mr Olden who recorded a contemporaneous file note of what was discussed at the meeting:[21]
[21] Annexure SO-1 to the Olden affidavit; CB 310-312 transcribed by Mr Olden during his evidence in chief; T66 line 36 - T68 line 6.
DB [Danielle Bolster]:            Injury 2018, Purpose of meeting is to discuss capacity.
Thanked Member for provision of requested documentation/cert of capacity.
IRO:Reiterated the efforts the member has taken to negotiate a RTW (initial) outside of the MATS team. John Wildes RTW co-ord, Andrew Hoiles & Josh Ashfield present.
Further, the member is provided with intermittent requests/ show cause when the organisation has been repeatedly provided with certs of capacity
That she has always had capacity to return to her role in full but not in that physical MATS team/ NUM, it is the organisation that has chosen not to think laterally as to how they could safely return her to work
MM [Maria Mattiacci]:           But members last C of C states she has capacity to work but outside of Alfred health?
IRO:Because a) Alfred Health asked for another C of C in prep for this meeting (which appears to be show cause) when the organisation has repeatedly overlooked/neglected to recognise that all her prior C of C have stated Stacey has capacity to RTW (her incumbent role) but that it not be administered by her current NUM or in the physical location of the MATS team.
B) her treater has obviously come to the conclusion that nothing prescribed by them in those prior C of C have been paid any attention other than to say that Alfred have looked into sourcing alternative roles i.e fixed term ANUM. But never truly trying to return her to her incumbent position/role stating that operations can’t accommodate the necessary modifications to allow that outcome or maybe just won’t?!?! Nothing in the RTW process compels the organisation to limit her RTW to that physical location solely. Nor does her contract. All AH contracts stipulate that the physical location of employment can be varied according to operational needs (or willingness)
DB asked SP:  how she thought her role could be managed if not under HARP/ MATS NUM?
SP:explained that prior to her grievance complaint & workcover claim discussions had occurred with the then DON [Director of Nursing] who was looking at whether to have her role report directly to the DON. Further, Stacey explained that prior to these matters, she had very little interaction with the MATS Team i.e she did not have a MATS nurse accompany her to consultations like the doctors did etc.
MM:So you are willing to RTW/AH?
SP:Yes, as per C of C.
DB/MM:Will take information away for further consideration and arrange another meeting shortly to discuss next steps.
On 22 May 2021, payments to Ms Palfreyman under the statutory workers compensation scheme ceased.
On 16 June 2021, Ms Bolster sent Ms Palfreyman a letter in which she referred to the meeting of 21 May 2021 and communicated the view that Alfred Health had extensively explored alternative options and was unable to provide an appropriate and comparable role as a Nurse Practitioner.[22] The letter continued:
As you are aware, the Scope of Practice of a Nurse Practitioner is developed to meet the specific service needs in an area of practice. Nurse Practitioner roles are required to be designed and delivered within an agreed business and clinical model approved by the Alfred Health Scope of Practice Committee. The Scope of Practice of the MATS Nurse Practitioner was developed by yourself in partnership with the MATS team as part of your appointment in line with these requirements and is not currently transferable to another equivalent Nurse Practitioner role in another service or team. These factors also mean that it is not possible to report to the manager of another service whilst undertaking the scope of the MATS Nurse Practitioner role.
As discussed in our last meeting, you are aware we are currently developing a new Model of Care for the Best at Home project in the Home, Acute and Community Program and more broadly across Alfred Health. It is envisaged that Nurse Practitioner roles will be explored and developed over time in this new model of care. However, the current focus is on developing and establishing the foundational model of care. Exploring advanced practice roles and Nurse Practitioner models is anticipated to be well beyond the first 12 months model of care implementation.
[22] Annexure SAP-1 to the Palfreyman affidavit; CB 285-286.
On 1 July 2021, Ms Palfreyman met again with Ms Bolster and Ms Mattiacci. Mr Olden again provided support for Ms Palfreyman and made the following contemporaneous file note:[23]
[23] Annexure SO-1 to the Olden affidavit; CB 313-314 and transcribed by Mr Olden during evidence in chief, T68 lines 14-39.
DB: outlined previous meeting in May 2021.
That org has reviewed feedback and purpose to discuss any further information that member can provide in relation to retaining employment.
SP:Not sure what else can provide to employer in addition to previous feedback
DB:confirmed no comparable NP role for i.e. Redeployment and cannot RTW to incumbent position.
IRO:reiterated disappointment/disbelief at lack of concerted effort to repair/bridge the MATS team employment relationship with Stacey. Seemingly a tick box exercise to meet the minimum obligation in relation to work cover process – did not preclude Alfred Health from taking additional steps to improve/support the retention of Stacey’s services in light of current pandemic/MH[Mental Health] Royal Commission/ aged care Royal Commission/ Professor Ibrahims Multiple Responses (Public) to the Aged Care Royal Commission/ Current nurse short fall à the loss of Stacey and the work she provides must surely require some serious reflection on the part of the organisation?
DB &MM:Noted Feedback.
Next Steps – MM last day employed @ AH is today.
Stated that DB & Craig Till will review these matters further and arrange another meeting
Discontinuation of Employment
On 22 July 2021, Ms Bolster sent a letter to Ms Palfreyman “to discuss the continuation of your employment with Alfred Health”.[24] After setting out what were described as the inherent requirements of Ms Palfreyman’s pre-injury role of Nurse Practitioner, the letter stated that “Alfred Health is now of the preliminary view that it has no alternative but to terminate your employment, based on your incapacity to perform the inherent requirements of your role safely”. Ms Palfreyman was invited to attend a meeting to discuss her employment and/or to provide a written response for consideration.
[24] Annexure SAP-1 to the Palfreyman affidavit; CB 287-289.
Ms Palfreyman elected to provide a written response which she sent to Ms Bolster by email on 9 August 2021 and in which, amongst other things, she stated:[25]
I also note that nothing in the key duties list provided in your correspondence expressly required that I must discharge my role responsibilities out of the very same environment in which I sustained my injury. It was an operational decision on executive part that alternative governance/work location would not or could not be offered to me in order to facilitate a full return in line with the inherent requirements of my pre injury Nurse Practitioner role.
…
Lastly, I do continue to work as a Nurse Practitioner and do so to the full extent of the roles responsibilities and its current scope of practice. The only limitation to my being able to provide that same high standard of work at Alfred Health, has been the organisations inability to provide me with the same protections as espoused in the sentence ‘Alfred Health has a duty of care to ensure that staff and others are not exposed to a risk to their health and safety in the workplace’. And further, ‘We take this obligation very seriously’.
[25] Annexure SAP-1 to the Palfreyman affidavit; CB 290-291.
On 8 September 2021, Mr Ross Longhurst, an Employee Relations Adviser for Alfred Health, sent a letter to Ms Palfreyman providing notice of termination of her employment.[26] The letter, as to operative part, read:
I refer to your written response on 9 August 2021. We wrote to you on 29 July 2021 requesting any further medical information medical advice received from your GP that you are unable to return to work in your pre-injury position of Nurse Practitioner as it is post 52 weeks and Alfred Health has no further obligation to hold your position, but your Workcover claim will remain active. We also discussed suitable alternative re-deployment options available within the business which was unsuccessful.
Following consideration of your written response, and the information available, and the fact that you chose not to accept the offer of re-deployment to the position which was unsuccessful, we have decided to terminate your employment based on your medical incapacity and the likelihood you’re unable to return to pre-injury position with the current medical information.
[26] Annexure SAP-1 to the Palfreyman affidavit; CB 293.
On 14 September 2021, Ms Palfreyman became aware of a job advertisement placed by Alfred Health for a “MATS Palliative Outreach Nurse” (advertised role).[27]
[27] Palfreyman affidavit at [85] and annexure SAP-1; CB 295-297.
THE WITNESSES
The background narrative of events recorded above was supplemented during trial by the evidence of the various witnesses. No attempt was made by either party to impugn the credit of any witness and from my observations of each of them I consider any different approach would have been unjustified.
Ms Palfreyman
Ms Palfreyman adopted her affidavit affirmed 21 September 2022 and through cross examination gave the following evidence.
Ms Palfreyman agreed that a Nurse Practitioner is more highly qualified then a nurse clinician and that in her case, she had obtained a Masters degree and received endorsement through the Australian Health Practitioner Regulation Agency in acute support care and care of older persons (reflecting both palliative care and aged care). However, Ms Palfreyman’s role at Alfred Health was aligned to an aged care endorsement. Ms Palfreyman agreed that although there were a number of Nurse Practitioner roles within Alfred Health, the role that she occupied was the only aged care Nurse Practitioner role.
When asked if a consequence of this endorsement was that she wouldn’t have been able to move into a different Nurse Practitioner role within Alfred Health that wasn’t the aged-care Nurse Practitioner role, Ms Palfreyman said that potentially she could have moved into a role that recognised her previous scope of practice in palliative care. However, Ms Palfreyman also acknowledged that there was not a Nurse Practitioner in palliative care during the time that she remained employed with Alfred Health. Ms Palfreyman acknowledged that she could not move into a different Nurse Practitioner role without doing additional training of a couple of years.[28]
[28] T52, lines 8-12.
Ms Palfreyman was asked about the advertised role (refer [40] above). She fairly acknowledged that the position described was fixed term (rather than ongoing), was part-time (rather than full-time), and was for a lower classification than the Nurse Practitioner role that she had occupied at Alfred Health. Ms Palfreyman conceded that the certificates of capacity she had provided said that she would need to be put back into a Nurse Practitioner role because to go into a lower nursing role would involve a different skill set and cause Ms Palfreyman anxiety.
Ms Palfreyman also acknowledged that there were generalist nursing positions, including an ANUM (Associate Nurse Unit Manager) offered to her by Mr Wildes which, based on the advice of her GP, she did not accept. Ms Palfreyman described each of the three positions that had been offered as “significantly lower” than Nurse Practitioner roles.
Ms Palfreyman described a conversation on 26 November 2018 with Mr Craig Till, Employee Relations Manager, that left her with the impression that she was being discouraged from making a formal complaint in relation to her colleagues on the basis that it would “make the situation worse”. Despite this, Ms Palfreyman accepted that her formal complaint had been taken seriously by Alfred Health.[29]
[29] T44, lines 24-26.
Ms Palfreyman was taken to a certificate of capacity dated 7 June 2019 in which her GP had certified in the treatment plan that Ms Palfreyman “does have capacity to return to previous role, however can not return to work in current team environment as this is the cause of her anxiety. Should return to work in previous role as nurse practitioner”. [30] Ms Palfreyman accepted that she couldn’t return to work in her previous role as nurse practitioner without going into that team environment.[31]
[30] Annexure SAP-1 to the Palfreyman affidavit; CB 163-164.
[31] T45, lines 7-20.
Ms Palfreyman was taken to another certificate of capacity dated 7 August 2018 in which her GP had, in addition to the narrative recorded above, certified that she “Should return to work in previous role as nurse practitioner and not in an admin or Div 1 RN positions as this causes an increase in anxiety due to different skill set”.[32] Ms Palfreyman accepted that the GP’s assessment had been based on what she (Ms Palfreyman) had told the GP and that the reference to these positions reflected the offers that had been made to this point in time to return to work.[33] Ms Palfreyman also accepted that when the same wording appeared in subsequent certificates, it reflected an assessment that was made based on the GP speaking with Ms Palfreyman.[34]
[32] Annexure SAP-1 to the Palfreyman affidavit; CB 169-170.
[33] T47, lines 20-46.
[34] T48, lines 1-9.
Ms Palfreyman was taken to a further certificate of capacity dated 30 January 2020 in which the wording of the treatment plan changed to include: “Alfred Health unable to provide appropriate and comparable alternative role as a Nurse Practitioner. Stacey has the ability to return to work with full duties in a different work environment (outside of Alfred Health)...”.[35] Ms Palfreyman agreed that this certification was based on the GP’s assessment of Ms Palfreyman after having spoken with her and that these comments were included in each of the successive certificates of capacity provided by Ms Palfreyman with the last dated 25 May 2021.[36]
[35] Annexure SAP-1 to the Palfreyman affidavit; CB 183-184.
[36] T48, lines 20-43.
Ms Palfreyman was asked whether the role of Aged Care Nurse Practitioner could have gone somewhere else within HARP other than MATS. This produced the following exchange:[37]
There were discussions amongst the steering committee earlier on and after my complaint that I could be moved to a different hospital and still be under HARP; that I could be moved to Caulfield Hospital – my role could be moved.
Right. But you would still be working with the MATS team as well, wouldn’t you? ---Yes. That was the – well, articulating with rather than working with.
Right. So interacting with? --- Not interacting with.
Not interacting with. What’s the difference between articulating and interacting in this instance? --- Doing a similar role, caring for the same patients, but not necessarily needing to have day-to-day interactions with.
I see. But you would clearly have occasional interactions at the very least, would you not? --- I don’t know it didn’t happen, but potentially that would have been part of it eventually.
[37] T54, lines 20-35.
Ms Palfreyman stood by her statement contained in her written response dated 9 August 2021 that “The two (2) paragraphs found directly under the title ‘capacity to perform inherent requirements of pre-injury employment’, epitomise a complete disconnect and the lack of respect shown to me during my injury and by my Executive”. Ms Palfreyman explained that the reference to lack of respect was because “[t]hey did nothing to help me get back to work” and offered only three positions in the first two months. She was critical that Alfred Health had a couple of years to create a position for her and yet failed to do so.
Ms Palfreyman’s cross examination concluded with the following exchange:[38]
Presumably they told you they would try to find a position? --- The executive would promise and say, “Give me a few weeks”, and that I would have to contact them. And they would say, “No, we have nothing”.
And it seems to me that you accepted that that was the position. That there was nowhere else to go for the aged care nurse practitioner, and that’s why you told your GPs that, and that’s why they wrote what they wrote in the certificates? --- What choice did I have? I couldn’t force them to create a position.
Yes, because it was the reality. Exactly. Yes, I agree.
[38] T56, lines 27-36.
Mr Olden
Mr Olden adopted his affidavit affirmed 20 September 2022 and through cross examination gave the following evidence.
Mr Olden accepted that the “executive” referred to in his notes had likely reviewed whether it would be possible to accommodate Ms Palfreyman’s role in a different reporting or governance structure and acknowledged that the position of Alfred Health was that it was not workable because of the composition of the MATS team and because of the specified credentialing as Aged Care Nurse Practitioner that Ms Palfreyman had in her position.
Mr Olden disagreed however that at the meetings conducted on 21 May 2020 and 20 May 2021, there had been an extensive discussion about Alfred Health’s efforts to explore alternative options to return Ms Palfreyman to employment. Mr Olden also disagreed that there had been discussion about Alfred Health’s efforts to explore whether it would be possible to adjust Ms Palfreyman’s substantive role so that it wouldn’t be required to interact with the MATS team.
Mr Olden accepted that because Ms Palfreyman was a specific Aged Care Nurse Practitioner, she couldn’t be transferred to a different Nurse Practitioner role in another service or team.
Mr Wildes
Mr Wildes adopted his affidavit affirmed 23 December 2022 and through cross examination gave the following evidence.
Mr Wildes explained that he was one of three Return to Work Coordinators at Alfred Health. He accepted that the return to work plan is not based on the premise that a person may only be returned to the substantive position that they had before an injury and that this meant that the following contingencies could potentially be accommodated:
·return to the workplace but in a different position;
·return to another site at the employer;
·return to a lower paid position at the same employer;
·change in the reporting requirements of the particular position.
Mr Wildes described having spoken with Mr Ashfield who then came up with some return to work options for Ms Palfreyman around nursing assessments for the home care package service, assessments and bookings for the Personal Alarm Victoria Response Service and some administrative/reception duties. It was Mr Wildes’ evidence that the nursing assessments for the home care package service would require a reasonably experienced nurse of probably a grade 3 or 4 but accepted that the other options were quite junior positions.
Mr Wildes told the Court that the Alfred Hospital employs between five and six thousand nurses and that based on these numbers, many positions would come up internally. However, from a return to work perspective, the focus was more about trying to return the person to their pre-injury role which the discussion with managers directed at the identification of suitable options rather than a review of current vacancies. Mr Wildes accepted that Ms Palfreyman potentially may have been able to perform some of these internal positions but agreed that not all of these roles within the Alfred Hospital had been put to her.

Mr Wildes explained that he had discussed the possibility of Ms Palfreyman returning to work as a Nurse Practitioner but with a different reporting structure with Mr Hoiles and Mr Ashfield. He recalled that they thought it wasn’t a workable solution but couldn’t really say why that was the case. Mr Wildes did not further investigate the issue and relied on the advice of these two individuals.
Mr Wildes explained that the position of the Alfred Hospital is that once a withdrawal of duties occurs, there is no further involvement in the return to work process. Mr Wildes could not recall having ever discussed the Best at Home program in relation to Ms Palfreyman or the Palliative Outreach Nurse program.
Ms Vecchi
Ms Vecchi adopted her affidavit affirmed 23 December 2022 and through evidence in chief and cross-examination gave the following evidence.
Ms Vecchi, in her capacity as Director, Human Resources and Employee Experience, was asked to provide an update on the employment status of each of three individuals who had featured in Ms Palfreyman’s complaint. Ms Vecchi explained that Ms Mitchell had stayed in her position until March 2019 after which time she transferred to the emergency department on a part-time basis where she stayed until her resignation from Alfred Health in around October 2021. Ms Vecchi confirmed that the emergency department is not part of MATS.
Ms Pilav stayed in the MATS role in her substantive position during 2019. In 2020, she became the MATS team leader and remained in that position until around mid-2022 when she went on long service leave and maternity leave.
Ms Borghmans was the HARP manager and she remained in that position in 2019 and 2020. In early January 2021 she took over the Hospital in the Home nurse manager role in a maternity leave position and remained in that relief position for the entire year. She remains employed with Alfred Health. Ms Vecchi confirmed that the Hospital in the Home position was not a position within either MATS or HARP.
Ms Vecchi was asked about her involvement in the decision to terminate Ms Palfreyman’s employment.
Ms Vecchi agreed that she was not the “original” person to make the decision that termination of employment might be warranted for Ms Palfreyman and identified that person as Ms Bolster. Ms Vecchi explained that Mr Longhurst had then prepared a written memorandum that contained a recommendation that termination occur that was sent to herself and to the Chief Operating Officer, Mr McCall-White (the Recommendation).
Ms Vecchi agreed that without the Recommendation she would not have been able to agree or disagree with any proposal to terminate Ms Palfreyman’s employment but disagreed that although she had met with Mr Longhurst before making a decision, his views had influenced her decision-making. Instead, Ms Vecchi explained:
No, it’s to satisfy myself that we’ve gone through the correct procedure so that we’ve done everything we possibly can to ensure that we have made the right decision and afforded the employee procedural fairness and that there is a valid reason for making this decision. They are not decisions we take lightly.
Ms Vecchi identified the matters discussed with Mr Longhurst during their meeting as follows:[39]
(a)Ms Palfreyman had received workers’ compensation payments for over 52 weeks;
(b)by that time, her workers compensation payments had actually ceased;
(c)Alfred Health had tried to get the best medical information that it could about Ms Palfreyman’s capacity;
(d)The medical information provided said that Ms Palfreyman had no capacity to return to the Alfred Health environment overall;
(e)It was impossible for Alfred Health to accommodate Ms Palfreyman’s requirements to return to work, that she not work with nurses that she had complained about in MATS;
(f)That Ms Palfreyman had been advised by the ANMF and they also took the position that she was unable to remain employed with Alfred Health; and
(g)Alfred Health was left with no alternative but to end the employment relationship.
[39] Affidavit of Louise Vecchi affirmed 23 December 2022 (Vecchi affidavit) at [24]; CB 704-705.
Ms Vecchi explained that the Recommendation, although addressed also to Mr McCall-White, would not have gone to him unless she supported and endorsed it.
The following exchange between counsel for Ms Palfreyman and Ms Vecchi occurred:[40]
Okay. So we have, just in the sort of chain of decision-making, Mr Longhurst, then yourself and then Mr McCall-White?---I think it’s important to state Danielle Bolster is the decision-maker. Ross Longhurst assists. He’s not a decision-maker. He assists in navigating the manager through the process, explaining employee rights, making sure that we adhere to our obligations in the enterprise agreement.
I see. Sorry, could I then just go back. And I didn’t mean to just derail you. We have Mr Longhurst, Ms Bolster, yourself and Mr McCall-White?---That’s right.
Okay. And if at any stage any of those people – sorry?---Yes.
If at any stage any of those people say “no”, then the process stops at that stage, I presume?---That’s right.
[40] T90, lines 31-43.
In the context of being taken to the Recommendation[41], which recorded Alfred Health’s conclusion that Ms Palfreyman was unable to ever return to her substantive position, the following exchange between Ms Vecchi and Ms Palfreyman’s counsel occurred:[42]
…And did you investigate whether she was unable to return to work at all?---I understood that she could not return to her substantive position and that we had met all of our obligations to try to return her to her substantive position.
Yes, but just go back to my question, please, Ms Vecchi. Did you investigate whether or not she was unable to return to any position within Alfred Health?---No, I did not.
And doesn’t Alfred Health have an obligation to return people to work – sorry, return injured workers to work, if necessary to a position other than their substantive position?---Yes, we do.
I see. And did you make a determination as to whether she had any such capacity to return to work other than to her substantive position?---Not at the time, because I understood that the 52 weeks where we have that obligation had expired, and therefore it had now become a matter of investigating capacity to return to the substantive position that we had held open, which was the nurse practitioner role.
And just on that point, did you consider, for example, whether she could return to her substantive position with different reporting lines so that she didn’t have to work with the same people who she had complained about?---At, at the time, no. I understood that the – from the memorandum that she wasn’t able to return to Alfred Health; she needed to work outside of Alfred Health or a different work environment, and there are very limited nurse practitioner roles at Alfred Health.
Did you examine, for example, whether there was a possibility of her working as a nurse practitioner in palliative care?---No, I did not.
Did you examine, for example, whether there was a possibility of her working as a nurse elsewhere outside the MATS area? ---No, I did not.
[41] Annexure MM-1 to the affidavit of Martin McCall-White affirmed 16 December 2022 (McCall-White affidavit); CB 323-325.
[42] T93, lines 4-33.
Later, in the context of revisiting the decision-making process, this further exchange between Ms Palfreyman’s counsel and Ms Vecchi took place:[43]
[43] T98, lines 3-5; 13-47; T99 lines 1-31.
---you were in the situation, really, where you were essentially endorsing a position on the basis of what Mr Longhurst said to you?---And also what was written in the – the memorandum. Yes.
…
You can’t exclude the possibility that Mr Longhurst had determined to terminate her because she had made complaints about other staff, can you?---I – I – I don’t think that’s correct. I think Mr Longhurst had come along at a time to help us out with a whole lot of ER work, and this was an outstanding WorkCover matter and a return to work, fitness to work process. I don’t think you can say he formed a view that she should be terminated.
No, I’m saying you can’t exclude that possibility that that’s the reason why he made the recommendation, can you?---I – I don’t – that’s a difficult question to ask. I don’t – I can’t exclude it but I – I don’t think that’s the case.
Yes, you can’t exclude it. And you can’t exclude the possibility that Mr Longhurst recommended her termination because she had sought to exercise her rights to return to work, can you?---Everyone has a right to exercise their workplace rights. I don’t think that that was the motivation or his consideration at all.
But you can’t exclude the possibility that that was his consideration, can you?---Well, I can’t include it either. I – I – is there another way to ask this question?
No. I’ve asked you the question. You can’t exclude that possibility, can you?---That Mr Longhurst had recommended her termination because she was insisting upon returning to a safe workplace, can you?---Well, I need to say that Mr Longhurst was not making the decision about terminating. He was just making sure that we had covered all of our procedural requirements. The decision is made by Danielle Bolster and myself and Martin McCall-White.
Well, sorry, I thought, Ms Vecchi, that you had given evidence earlier that Mr Longhurst made the recommendation?---He makes a recommendation to make sure that we’ve done all of the correct things, because he’s involved in the case and the meetings.
He made the recommendation to terminate her, didn’t he---?---Yes.
---Ms Vecchi?---Yes.
Yes?---Because of the reasons in the – in the recommendation.
Okay. And you can’t exclude the possibility that Ms Bolster was part of the decision-making process and decided to terminate the applicant because the applicant had made a workplace complaint; you can’t exclude that possibility either, can you?---I can’t exclude the possibility, but I don’t think it’s the motivation---
Okay. And---?---because of the timeframe between the events.
And you can’t exclude the possibility that Ms Bolster decided to terminate on the basis that the applicant had sought to return to work?---No, I – I disagree with that. I don’t think that that’s correct.
So you can exclude that possibility, can you?---I think there was no possibility for Ms Palfreyman to go to her substantive position. The – she couldn’t return to work because of the reasons we’ve discussed.
And you can’t exclude the possibility that Ms Bolster agreed to the termination because the applicant was insisting upon being able to return to a safe workplace, can you?---The applicant has a right to return to a safe workplace. That would not be the reason for the decision-making.
Is that the answer to my question?---I can’t exclude the possibility, but I doubt it’s the reason.
Ms Vecchi was asked to comment on the statement contained in the Recommendation that it was impossible for Alfred Health to accommodate Ms Palfreyman’s requirements to return to work, that she not work with the nurses that she had complained about in MATS. It was put to her that at the time the Recommendation was given (around August 2021) due to staff movement, it would have been a possibility. Ms Vecchi resisted this proposition on the basis that although the manager, Ms Borghmans, had gone by this time, one of the nurses was still working there in the capacity as team leader and Ms Vecchi did not consider it would have been possible to have Ms Palfreyman report to a different individual. In any case, the medical information that they had available was about the Alfred Health environment and who Ms Palfreyman would be working with. It said nothing about reporting.
Mr McCall-White
Mr McCall-White adopted his affidavit affirmed 16 December 2022 and through cross examination gave the following evidence.
Mr McCall-White confirmed that as Chief Operating Officer during the period April 2021 to October 2021 he held the delegation to terminate the employment of Alfred Health employees. He was questioned as to how the process unfolded in practice which produced the following exchange:[44]
[44] T106 line 23 – T107 line 2.
Mr Longhurst makes a recommendation; that’s correct?---Yes.
He provides a copy to Ms Bolster. She agrees or disagrees with that recommendation?---Yes.
Then it is provided to Human Resources, which in this case was Ms Vecchi?---Yes.
Is that correct? And Ms Vecchi can also say yes or no, and then the recommendation goes to you?---Yes.
Okay. And if any of the people in that decision-making process say no – including yourself, obviously – then the termination can’t go ahead?---I believe, at the level of the director of HR, Ms Vecchi, and myself. I can’t confirm at the other two levels.
Right. Okay. All right. And the way the process worked was this. You received a recommendation that we can see…..Yes. The memorandum.
And that’s the recommendation that you received. And you also, I think, state that you had a discussion with Ms Vecchi about the recommendation itself; is that correct?---Correct.
Okay. And I take it you didn’t have a discussion with Mr Longhurst and you didn’t have a discussion with Ms Bolster; is that correct?---That’s correct.
Okay. So you don’t have any idea what was in their mind in terms of their process?---No, I don’t.
Mr McCall-White told the Court that he had not investigated any further capacity of Ms Palfreyman to perform any work at the hospital and likewise he had not explored whether there were any new positions that she might be able to perform. Mr McCall-White explained that it had not been part of his role in the situation to do so.
Mr McCall-White was unable to exclude the possibility that Mr Longhurst’s Recommendation was made on the basis that, or partly on the basis that, Ms Palfreyman had a made a complaint in relation to her employment. It was Mr McCall-White’s evidence that he only made his decision based on the recommendations that were put to him.[45]
[45] T108, lines 2-6.
Mr McCall-White was unable to exclude the possibility that Mr Longhurst made the Recommendation at least partly for the reason of Ms Palfreyman’s desire to work in a safe workplace.[46]
[46] T108, lines 10-13.
Mr McCall-White was unable to exclude the possibility that Ms Bolster supported the Recommendation because she was motivated at least in part by the complaint made by Ms Palfreyman or because of the fact that Ms Palfreyman may have exercised her right to have a safe workplace.[47]
[47] T108, lines 19-25.
THE GENERAL PROTECTIONS CASE
The following matters are agreed:
First, that Alfred Health is amenable to the General Protections provisions in the FW Act.
Second, that Ms Palfreyman exercised a workplace right within the meaning of s 341(c)(ii) of the FW Act when she made the Palfreyman complaint, this being a complaint in relation to her employment.
Third, that Ms Palfreyman had a workplace right within the meaning of s 341(1)(a) of the FW Act in that she was entitled to the benefit of a workplace law, being the Occupational Health and Safety Act 2004 (Vic) (OHS Act).
Fourth, when Alfred Health terminated Ms Palfreyman’s employment, it took adverse action against her within the meaning of s 342(1) of the FW Act.
The legislative framework and matters of principle
Part 3-1 of the FW Act is entitled “General Protections”. Among other things, it provides for a range of protections designed to safeguard the exercise of “workplace rights”. One of those protections is contained in s 340(1) of the FW Act, which provides (and at all relevant times, provided) as follows:
340 Protection
(1)      A person must not take adverse action against another person:
(a)       because the other person:
(i)        has a workplace right; or
(ii)       has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)       to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4-1).
Section 360 of the FW Act recognises that some adverse action might be taken for a variety of reasons, including some unrelated to reasons that Part 3-1 of the FW Act proscribes. In order to be actionable under Part 3-1 of the FW Act, it is sufficient that relevant adverse action is taken for reasons that include such proscribed reasons.
Section 361 of the FW Act creates a rebuttable presumption concerning the proof, in any given case, of the reasons for which adverse action was taken. If, in an action alleging that conduct was engaged in in contravention of Part 3-1 of the FW Act, a person is accused of having done something for a particular reason and the doing of that thing for that reason would constitute a contravention of that Part, it is presumed that the conduct was engaged in for that reason, unless or until the person who engaged in it proves otherwise.
Section 539(1) of the FW Act is entitled “Applications for orders in relation to contraventions of civil remedy provisions”. Amongst other things, it identifies the provisions of the FW Act that qualify as a “civil remedy provision”. Section 340(1) is amongst them. Section 539(2) of the FW Act confers jurisdiction upon this Court to hear applications for relief relating to contraventions of that section. The Court has the power to grant relief in the nature of declarations, compensation and penalties, amongst other things.
Section 793 of the FW Act deals with liability of bodies corporate. It relevantly provides that any conduct engaged in on behalf of a body corporate by an officer, employee or agent of the body within the scope of his or her actual authority is taken, for the purposes of the Act, to have been engaged in also by the body corporate. Subsections (2) (and (3)) relevantly deal with how the state of mind of a body corporate is established.
In this case, there was broad agreement between the parties as to the nature of the inquiry to be adopted in the assessment of whether a decision maker has been actuated by a prohibited reason. These principles were usefully collected in the decision of Alam v National Australia Bank Limited (2021) 288 FCR 629 at [14], a case to which both parties referred in their written submissions. They include:
…
(d) the discharge of the s 361 onus requires proof on the balance of probabilities and usually requires decision-makers to give direct evidence of their reasons for taking the adverse action: Bendigo v Barclay at [43]-[44];
(e)    the determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding: Bendigo v Barclay at [41], [45] (French CJ and Crennan J); at [101] (Gummow and Hayne JJ); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41, (2014) 253 CLR 243 (CFMEU v BHP Coal) at [7] (French CJ and Kiefel J); Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, (2015) 238 FCR 273 (CFMEU v Anglo Coal) at [27]; ABCC v Hall at [19];
(f) while the evidence of the decision-maker as to the reasons for the taking of the adverse action may, if accepted by the Court, satisfy the s 361 onus, such evidence is not a necessary pre-condition: CFMEU v BHP Coal at [192]; Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215, 273 FCR 332 at [72];
(g)    the Court’s rejection of the evidence of the decision-maker as to the reasons for the adverse action will ordinarily be a “weighty consideration and often a determinative consideration” in the determination of whether the reason alleged by the applicant was a substantial and operative reason for the action (Cummins v South Pacific Pty Ltd v Keenan [2020] FCAFC 204; (2020) 302 IR 400 at [116], but such a rejection does not relieve the Court from considering all the evidence probative of whether the reason asserted by the applicant has been negated: ibid; CFMEU v Anglo Gold at [27]; Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333, (2011) 193 FCR 526 at [272]. When there is evidence of a broad range of facts and circumstances, which are not dependent on acceptance of the decision-maker’s evidence about his or her asserted reason for dismissal, such evidence must be taken into account in assessing whether the reasons asserted by an applicant were a substantial and operative reason for the action: ibid at [113]; TechnologyOne Ltd v Roohizadegan [2021] FCAFC 137 at [105]-[106];
(h)    even if the reasons advanced by a respondent as the actual reasons for the decision are accepted, the absence of evidence that there were no additional reasons or that the actual reasons did not include the alleged proscribed reasons, may result in a failure to rebut the presumption: National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451, (2013) 234 IR 139 at [20]; PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15, (2020) 274 FCR 225 at [154] (Snaden J);
(i)     the decision-maker’s knowledge of the circumstances asserted by an applicant to be the reason for the adverse action, and even its consideration, does not require a finding that the action was taken because of that circumstance: Bendigo v Barclay at [62]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218 at [80] (Jessup J); Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271, (2014) 242 IR 1 at [777]. Nor does the fact that the adverse action has some association with a matter supporting a proscribed reason: CFMEU v BHP Coal at [20], [87]-[88]; Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76, (2015) 231 FCR 150 at [32], [47]-[48] (Jessup J); and
(j) adverse action taken against a person because of conduct resulting from the exercise of workplace rights may not offend the s 340(1) prohibition: CFMEU v BHP Coal; Endeavour Coal at [52] (Perram J).

It is clear from the above recitation of principles that an inquiry into the actual reason or reasons given by the employer for the taking of adverse action is not confined to the reasons themselves but comprehends all the circumstances established in the proceeding.
Identification of the decision maker
Section 341(1) requires a causal link between the adverse action and the exercise or possession of the workplace right. In establishing the causal link, the Court’s task is to identify the actual reason or reasons for the adverse action.
A threshold matter that shapes this inquiry, and which looms large in the resolution of this case, is the identification of the decision-maker or decision-makers.
Bodies corporate, such as Alfred Health, by their nature act only via the agency of their human officers. They have no conscience or mind within which a reason or reasons for acting might form. In some cases, corporate conduct is the product of collective decision-making – for example, decisions made at the level of the company’s board of directors or through some other committee of management, formal or otherwise. In others, corporate conduct arises from decisions of single officers exercising powers that are theirs alone to exercise. There are infinite ways in which corporate decision-making can be disbursed and each case requires close attention.
As not uncommonly occurs, Ms Palfreyman’s case concerning the identity of the relevant decision-makers crystallised on the final day of trial. In her closing written submissions Ms Palfreyman invited the Court to find that there were multiple decision makers in this case: Mr Longhurst (who drafted the original recommendation), Ms Bolster (to whom the recommendation was sent),[48] Ms Vecchi (who took the recommendation to Mr McCall-White) and Mr McCall-White who made the formal determination to terminate Ms Palfreyman’s employment, in accordance with Alfred Health’s delegated authority requirements.[49]
[48] I note that while this submission was made it does not accurately reflect the evidence of Ms Vecchi which was that Mr Longhurst prepared the Recommendation after a decision to recommend termination of Ms Palfreyman’s employment had been made by Ms Bolster.
[49] Applicant’s closing written submissions at [38].
Ms Palfreyman submitted that the Court should find that each of these individuals contributed to the making of the decision to terminate her employment and that their contribution was “significant”, “plainly important”, “major”, “substantial” or “essential” (adjectives that were used to describe the required quality of the contribution by the Full Court in Wong v National Australia Bank Limited [2022] FCAFC 155 at [83]).
Alfred Health submitted that while there was only one actual decision maker in accordance with its procedures and delegations (this being Mr McCall-White) it did accept that the current law, including as described in Wong, required the Court to interrogate the state of minds of those individuals whose contributions to the decision-making rose beyond a threshold level.
However, Alfred Health submitted that neither Ms Bolster nor Mr Longhurst’s contribution to the termination decision rose beyond this required level. In this context, the submission was made that the Court had been correct to determine, in ruling against the granting of an extension of time to file the affidavits of Ms Bolster and Mr Longhurst, that “those witnesses were not decision makers and that their evidence would not ‘tip the balance’ in the proceeding”.
In fact, as I reminded counsel at the time that this last submission was made, the decision to refuse leave to file the affidavits of Ms Bolster and Mr Longhurst did not involve any adjudication as to whether these individuals were “decision makers” but instead acknowledged that they had not been held out by Alfred Health to have this status, including in the context of the leave application. A decision made at that time, before the closure of evidence, would have been premature. It is one that can now comfortably be made.
In the end, the answer can be found in the affidavit evidence of Ms Vecchi and Mr McCall-White.
Starting with Ms Vecchi, her unchallenged affidavit evidence included the following:
10.   The role of the people and culture team is to advise, guide and navigate either the manager or an employee through our organisation’s processes to resolve concerns that might arise in the course of the employment relationship. Where termination of employment is considered by a supervisor or manager, the matter is escalated to an employee relations adviser, who provides further guidance and advice. The employee relations adviser’s responsibilities include ensuring compliance with relevant workplace laws and enterprise agreements. The employee relations adviser reports to the employee relations manager and is supervised by them.
11.   If, after receiving guidance and advice, and following the appropriate process, the relevant manager considers that termination of employment is warranted, the people and culture team will make a recommendation to terminate employment.
12.   Once that recommendation has been made, it will be reported to me in a written memorandum recommending termination. Often, this will be my first involvement with matters relating to the particular employee. Oftentimes I will not be familiar with the background.
…
18.   In around August 2021, as Acting Director Human Resources and Employee Experience I endorsed a recommendation to terminate the Applicant’s employment.
19.   Ross Longhurst, then an employee relations adviser with the Respondent provided a memorandum to me and Martin Mc-Call White, then the Acting Chief Operations Officer seeking our endorsement of the termination of the Applicant’s employment because she had reached beyond 52 weeks on WorkCover, suitable duties had been withdrawn, and the Applicant had demonstrated no capacity to meet the inherent requirements of the role based on the best available medical evidence and had therefore been deemed unsuitable for the role (Recommendation).
20.   2021 was a particularly busy period for the Respondent’s people and culture team and we had several people in acting roles. Mr Longhurst was brought in as a contractor employee relations adviser from July 2021 to March 2022 to help with the employee relations team’s workload…
21.   I believe that Mr Longhurst prepared [the] Recommendation based on the Respondent’s files as part of the Respondent’s usual process, after a decision to recommend termination of the Applicant’s employment had been made by the relevant clinical manager, Danielle Bolster with guidance from the relevant HR Business Partner.
22.   Mr Longhurst was not a decision maker. Employee relations advisors provide advice about the options available, including whether termination of employment may be an appropriate available option, but cannot decide to terminate the employment of an employee.
…
24.   I believe that I received the Recommendation on or around 2 August 2021. At around the same time that the Recommendation was provided to me, I met with Mr Longhurst so that he could explain the Recommendation to me.
…
26.   After considering the Recommendation, and discussing it with Mr Longhurst, I decided to endorse the Recommendation.
…
33.   I endorsed the recommendation to terminate the Applicant’s employment because at the time, the Applicant did not have the capacity to perform the inherent requirements of her substantive role as established by medical evidence provided in writing to the Respondent and there was no other suitable nurse practitioner position for her with the Respondent. That was my only reason for endorsing the recommendation to terminate the Applicant’s employment.
The unchallenged affidavit evidence of Mr McCall-White included the following:
9.   The Respondent’s process is that if termination of an employee’s employment is being considered, the Respondent’s people and culture team will prepare a memorandum recommending termination. The memorandum first goes to the Respondent’s Director, Human Resources and Employee Relations. If the Director agrees with the recommendation, it will then be sent to the Chief Operating Officer for final approval. If the Director does not agree with the recommendation, the proposed termination cannot proceed.
…
15.   Based on the Recommendation, I decided to endorse the termination of the Applicant’s employment for the reasons set out in the Recommendation:
a.That the Applicant had reached beyond 52 weeks on WorkCover;
b.Suitable alternative duties had been withdrawn;
c.The Applicant had no capacity to meet the inherent requirements of her role based on the evidence, such as a recent Certificate of Capacity and/or medical reports; and
d.The Applicant had therefore been deemed unsuitable for the role.
…
17.   The Recommendation was the only information that I took into account in reaching my decision to terminate the Applicant’s employment.
…
19.   My decision to endorse the termination of the Applicant’s employment…
It is pellucidly clear from the above that although the decision-making process reached its institutional or hierarchical zenith when the Recommendation came before Mr McCall-White, who held the relevant delegation to terminate Ms Palfreyman’s employment, the catalyst for this event was the decision taken by Ms Bolster to recommend termination of Ms Palfreyman’s employment. It is instructive that Ms Vecchi in her cross-examination insisted that Ms Bolster was the “decision-maker”, and it is instructive that both Ms Vecchi and Mr McCall-White characterised their input as involving an “endorsement” of the Recommendation; an acknowledgement that they approved or gave support to the position reflected in that document[50] rather than being the driving force behind its creation and the views that it expounded.
[50] Macquarie Dictionary (online at 12 September 2024) “endorse”.
While Mr McCall-White might have been the “ultimate” or “formal” decision maker, it is clear that Ms Bolster’s contribution to the termination decision was material and comfortably achieved the threshold recognised in authorities such as Wong. The evidence unequivocally is that the involvement of each of the successive individuals: Mr Longhurst in preparing the Recommendation, Ms Vecchi in endorsing the Recommendation and Mr McCall-White in providing the imprimatur of the office of the Chief Operating Officer, was responsive to Ms Bolster’s initial recommendation decision.
The evidence is also to the effect that in endorsing the Recommendation Ms Vecchi proceeded on the basis that inquiries into matters such as whether Ms Palfreyman was able to return to any position within Alfred Health, including as a Nurse Practitioner in palliative care or elsewhere outside of MATS, had already been performed and/or were outside the scope of her decision-making remit. Mr McCall-White simply accepted the matters communicated in the Recommendation to be correct in a manner that reflected the nature of his delegation and lack of involvement in matters concerning Ms Palfreyman’s employment and efforts to return to work.
The evidence does not allow me to reach a concluded view about the quality of the involvement of Mr Longhurst. For example, was he simply the conduit through which information provided by Ms Bolster was conveyed and packaged in a formal memorandum, or did he make contributions that reflected his personal view of relevant matters and had a material impact on the message and decision conveyed further up the line? We know from Ms Vecchi that as employee relations adviser, he was expected to provide advice about the options available, but the evidence does not allow me to form a view as to how, if at all, the advice impacted on the termination recommendation made by Ms Bolster.
In the end this does not matter. I am satisfied that the search for Alfred Health’s reasons for dismissing Ms Palfreyman, insofar as they involve the interrogation of a person’s state of mind, should extend to include that of Ms Bolster.
In this respect, this case has some parallels with the decision-making process in Wong where the Full Court found that an inquiry as to the reasons of the appellant’s supervisor was justified in circumstances where this individual had the greatest visibility over Ms Wong’s work, had been the source of information concerning Ms Wong’s performance and behaviour and this information had been accepted by the ultimate decision-maker at “face value” and without separate investigation as to its reasonableness, truth or accuracy and where the supervisor had played an administrative role in the process leading to Ms Wong’s removal. The supervisor was described by the Full Court as the instigator of the process that led to adverse action being taken. It was these matters that led the Full Court to characterise the supervisor’s contribution using adjectives that have been earlier described.
Has Alfred Health rebutted the statutory presumption?
Ms Palfreyman submitted that if the Court was to find that either Ms Bolster or Mr Longhurst was a “decision-maker”, the inescapable conclusion must be that Alfred Health was unable to discharge its onus under s 361 of the FW Act. This was because the Court was deprived of the direct testimony of these individuals and because there was no independent documentary evidence that sufficiently bridged the evidentiary void.
Ms Palfreyman submitted it to be of some significance that both Ms Vecchi and Mr McCall-White had given unqualified evidence that they could not exclude the possibility that either Mr Longhurst or Ms Bolster had acted, in making their respective contribution, for reasons that included Ms Palfreyman’s exercise of workplace rights. However, with respect, I’m not sure that these concessions (properly made) advance the matter. While the witnesses could, and did to some extent, identify considerations that suggested that these individuals acted for entirely benign reasons, they could not purport to know, with certainty, exactly what had and had not motivated these individuals. That is a matter that is left to the Court to divine from the information before it.
Alfred Health submitted that in the event that the Court was to find (against its primary submission) that either Ms Bolster or Mr Longhurst had made a relevant contribution to the termination decision, there was no evidence, in the case of either one of them, to suggest that Ms Palfreyman’s complaint was a substantial and operative reason for their respective contributions, given that it had been made some two and half years prior to the termination of Ms Palfreyman’s employment.
Alfred Health submitted that Ms Palfreyman’s own evidence disclosed that her first interaction with Ms Bolster occurred on 10 February 2021 and with Mr Longhurst on 8 September 2021, when she received a termination letter signed by him. In the case of both of these individuals, it was illogical to suggest that any input they had to the termination decision could have been motivated by the complaint from February 2019, which was described by Alfred Health as, by that time, “a piece of history”.
Alfred Health submitted that it was also the case that there was no evidence to suggest that the possession of workplace rights or entitlements by Ms Palfreyman was a substantial and operative reason for any contribution or decision made by Ms Bolster or Mr Longhurst, in circumstances where Ms Palfreyman had been out of the workplace for over 130 weeks and Alfred Health had offered alternative employment to Ms Palfreyman and continued to meet with her to discuss medical capacity and options for continued employment with Alfred Health throughout that period.
Alfred Health submitted that the actuating reason for the decision to terminate Ms Palfreyman’s employment was overwhelmingly grounded in her inability to return to the job based on the certificates of capacity which recorded that:
·From 30 November 2018 to 14 February 2019 – Ms Palfreyman had no capacity for employment;
·From 15 February 2019 to 3 May 2019 – Ms Palfreyman had, variously, capacity for suitable employment for 2 half days per week but should not have any contact with previous team and no capacity for employment;
·From 3 May 2019 to 8 July 2019 – Ms Palfreyman had no capacity for employment with the treatment plan recording “Does have capacity to return to previous role, however can not return to work in current team environment as this is the cause of her anxiety. Should return to work in previous role as nurse practitioner”;
·From 8 July 2019 to 31 January 2020 – Ms Palfreyman had no capacity for employment with the treatment plan recording “Does have capacity to return to previous role, however can not return to work in current team environment as this is the cause of her anxiety. Should return to work in previous role as nurse practitioner and not in an admin or Div RN position as this causes an increase in anxiety due to different skill set”;
·From 30 January 2020 to 22 June 2021 – Ms Palfreyman had capacity for suitable employment with the treatment plan recording “Unable to return to work in previous role due to work environment and breakdown of relationships. Alfred Health unable to provide appropriate and comparable alternative role as a Nurse Practitioner. Stacey has the ability to return to work with full duties in a different environment (outside of Alfred Health).
I accept, and implicitly so does Ms Palfreyman, that the actuating reasons for the contributions made by Ms Vecchi and Mr McCall-White to the termination decision were those recorded in the Recommendation and the letter of termination and identified by both these witnesses in their testimony. Those reasons reflected the view taken (or the adoption of the view taken) that Alfred Health had exhausted its obligations to return Ms Palfreyman to the workplace in circumstances where Ms Palfreyman had exceeded 52 weeks on WorkCover, suitable alternative duties had been withdrawn, and she had no capacity to meet the inherent requirements of the role of Nurse Practitioner in the MATS.
Ms Palfreyman’s counsel, at the close of evidence, told the Court that his client did not contend that either Ms Vecchi or Mr McCall-White had decided to terminate her employment for reasons that included a proscribed reason. To the extent that the decision-making of Alfred Health was dispersed through these two individuals, I am persuaded, based on their testimony, that their reasons were benign.
However, there is no direct evidence before the Court as to the reasons that motivated Ms Bolster to recommend termination of Ms Palfreyman’s employment. I am invited to infer that it simply reflected the considerations that made their way into the Recommendation and then ultimately the letter of termination, and that there was an inevitability to the decision given the state of the medical evidence and the passage of time, both since the making of Ms Palfreyman’s complaint and in connection with Alfred Health’s obligations under workers compensation legislation, which had passed the statutory end-point.
However, the question of why Ms Bolster made the recommendation decision has not been directly addressed and the failure of Alfred Health to do so, having regard to the following circumstances (identified in no particular order), is problematic.
First, Ms Bolster was given decision-making responsibility because she was the “relevant clinical manager” and would therefore, from an operational point of view, likely have had visibility over the placement of clinical staff, including the nursing cohort and have been in a position to make decisions about the capacity and preparedness of Alfred Health to accommodate different structural or reporting arrangements for these employees.

Second, Ms Bolster’s involvement in Ms Palfreyman’s return to work had commenced at least by February 2021. The evidence before the Court is that in addition to sending Ms Palfreyman a letter on 8 February 2021, Ms Bolster sent a follow up letter on 12 March 2021 requesting medical information, and on 21 May 2021 participated in a meeting with Ms Palfreyman and Mr Olden during which, amongst other things discussed, Mr Olden accused Alfred Health of choosing not to think laterally as to how they could safely return Ms Palfreyman to work. On 16 June 2021, Ms Bolster sent (and was the apparent author of) a letter that communicated the inability of Alfred Health to provide an appropriate and comparable role to Ms Palfreyman as Nurse Practitioner. Then, on 1 July 2021, Ms Bolster participated in a second meeting with Ms Palfreyman and Mr Olden during which Mr Olden was again critical of Alfred Health’s efforts to accommodate Ms Palfreyman within the organisation, describing its efforts as a “tick the box” exercise. On 22 July 2021, Ms Bolster sent a letter to Ms Palfreyman that communicated the preliminary view that Alfred Health had no alternative but to terminate Ms Palfreyman’s employment. Ms Bolster was not simply a dispassionate observer but had some “skin in the game” and proximity to the return to work process and the matters raised in that context, which included staffing issues that had their genesis in Ms Palfreyman’s complaint.
Third, while the considerations that are identified in the Recommendation largely reflect matters, the truth of which are objectively ascertainable, they also include the adoption of a view taken that Alfred Health had, since January 2019, been unable to accommodate Ms Palfreyman’s return to work requirements. Ms Bolster, as the individual who made the termination recommendation, could have shed light on why this view was formed and addressed the critical question of whether, beyond operational and structural impediments, it was motivated by any proscribed reason. Ms Bolster could also have possibly explained why the Recommendation was apparently sent to Ms Vecchi ahead of Ms Bolster’s receipt of the written response provided by Ms Palfreyman as part of the show-cause process.
As things stand however the Court is left to speculate as to the answer to these questions and speculation is not a permissible form of reasoning to a finding on the balance of probabilities.
In Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 555, Lee J made the following observations at [98]-[99] about the standard of proof in civil proceedings (codified in s 140 of the Evidence Act 1995 (Cth)) which I respectfully adopt:
The concept used in subsection (1), being the “balance of probabilities”, is often misunderstood. It does not mean a simple estimate of probabilities; it requires a subjective belief in a state of facts on the part of the tribunal of fact. A party bearing the onus will not succeed unless the whole of the evidence establishes a “reasonable satisfaction” on the preponderance of probabilities such as to sustain the relevant issue: Axon v Axon (1937) 59 CLR 395 (at 403 per Dixon J). The “facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied”: Jones v Dunkel (1959) 101 CLR 298 (at 305 per Dixon CJ). Put another way, as Sir Owen Dixon explained in Briginshaw v Briginshaw (1938) 60 CLR 336 (at 361), when the law requires proof of any fact, the tribunal of fact must feel an actual persuasion of its occurrence or existence before it can be found.
Justice Hodgson put it differently, but to the same effect, by observing that when deciding facts, a civil tribunal of fact is dealing with two questions: “not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision”: see D H Hodgson, ‘The Scales of Justice: Probability and Proof in Legal Fact-finding’ (1995) 69 Australian Law Journal 731; Ho v Powell [2000] NSWCA 168; (2001) 51 NSWLR 572 (at 576 [14]-[16] per Hodgson JA, Beazley JA agreeing).
In applying these principles to this case and the limited evidence that is before me concerning the state of mind of Ms Bolster when she came to make the termination recommendation, I am not reasonably satisfied that Alfred Health took adverse action without the prohibited reason or intent attributed to it by Ms Palfreyman. Alfred Health has failed to discharge its onus under s 361 of the FW Act with the result that the statutory presumption applies and a finding that Alfred Health contravened s 340(1) of the Act must follow.
THE ENTERPRISE AGREEMENT CASE
Ms Palfreyman claims that in breach of the Enterprise Agreement, and thus in contravention of s 50 of the FW Act, Alfred Health failed to comply with its obligations under each of clause 99, 100 and 104 of the Enterprise Agreement. It is not in contest that Alfred Health is bound to observe the requirements of these provisions which, on Ms Palfreyman’s pleaded case, relevantly include:
99       OHS Risk Management
99.1Those covered by this Agreement will take a pro-active approach to the prevention and management of workplace injuries to the highest level of protection reasonably practicable in the circumstances, and to the achievement of a reduction in workplace injuries through the implementation of risk management systems incorporating hazard identification, risk assessment and control, and safe work practices.
99.2The Employer will implement the hierarchy of controls to control hazards and will eliminate the hazard at the source wherever practicable.
99.3Those covered by this Agreement recognise that consultation with nurses, midwives and their representatives is crucial to achieving a health and safe work environment. To this end, Employers will consult with nurses, midwives and their representatives around matters relating to health and safety in the workplace.
99.4     This Agreement recognises that hazards include, but are not limited to:
…
(c)    circumstances that give rise to adverse effects on psychological health, including bullying, workplace stress and fatigue;
…
99.5The Employer will provide such information, education, training and supervision to all Employees of the Employer required to enable them to perform their work in a manner which is safe and without risks to health. This will occur on a regular basis as required to enable Employees to remain informed in relation to health and safety hazards, policies and procedures.
100     Incident Reporting, Investigation and Prevention
100.1The Employer will facilitate timely reporting of incidents by Employees, and ensure Employees who report incidents are appropriately supported.
100.2   Following an incident, the Employer will:
(a)    take appropriate action to prevent further injury to Employees;
(b)    conduct an incident investigation and implement workplace controls to prevent the incident recurring; and
(c)    provide information regarding the Employee’s rights as relevant including the making of a workers compensation claim or reporting to police.
…
104     Workers’ Compensation, Rehabilitation and Return To Work
…
104.4   Return to Work
(a)    The Employer will appoint a Return to Work Coordinator who will have sufficient knowledge of occupational rehabilitation legislation, regulations and guidelines to undertake the task.
(b)    The Employer will develop an appropriate return to work plan as soon as medically appropriate in consultation with the injured Employee concerned, his or her treating doctor and health professionals providing treatment or services to the injured Employee.
(c)    The Employer will assist injured Employees to remain at work or return to work in suitable employment as soon as medically appropriate after injury. The Employer will ensure that the suitable employment will reflect and be commensurate with, as far as possible, the skills, education, age, experience, pre-injury employment, and any relevant medical restrictions of the injured Employee. The suitable employment will also take into account the Employee’s place of residence and pre-injury hours of work.
…
(f)     The return to work plan will be reviewed at least monthly or more regularly as needed, in consultation with the injured Employee and other relevant parties.
…
(h)    The Employer will not seek to change the Employee’s duties, hours or other aspects of the Employee’s employment or return to work plan without consulting with the Employee.
…
At a high level, as reflected in her statement of claim, Ms Palfreyman alleges that by reason of the occurrence of her workplace injury, Alfred Health failed to proactively prevent and manage workplace injuries, implement a hierarchy of controls to control and eliminate hazards and to consult with Ms Palfreyman and other employees around matters relating to health and safety. Ms Palfreyman further alleges that Alfred Health failed to provide information, education, training and supervision to employees to enable them to safely perform their work and failed to assist her to remain at work or return to work in suitable employment as soon as medically appropriate after her workplace injury or to review her return to the workplace on at least a monthly basis.
As can be seen, this collection of allegations largely mirrors the language of the Enterprise Agreement. By the conclusion of trial, while Ms Palfreyman had not abandoned other aspects of her claim, her principal challenge was to the manner in which Alfred Health purported to give effect to its obligation to develop an appropriate return to work plan for her.
Ms Palfreyman, in closing written submissions, identified the “nub” of her complaint as the failure of Alfred Health to appreciate that it had ongoing obligations to her under the Enterprise Agreement, which were in addition to those owed to her under the Workers Injury Rehabilitation and Compensation Act 2013 (Cth).
Ms Palfreyman submitted that Alfred Health had been fixated on the idea that if she could not perform the “inherent requirements’ of her substantive position, then its obligations to her were exhausted. This was said to be contrary to its obligations under cl. 104 of the Enterprise Agreement which made it clear that duties, hours or other aspects of an employee’s employment might be changed to facilitate their return to work. The submission was made that Alfred Health did not offer Ms Palfreyman any opportunity to return to work at the respondent, either in her pre-injury position, or in any other position.
Ms Palfreyman submitted that it was open to Alfred Health to return her to her pre-injury position especially in circumstances where the evidence adduced at trial was that:
(a)very shortly after the date of termination, Ms Mitchell ceased working at Alfred Health;
(b)Ms Pilav had left the MATS team in 2019, only to return as team lead in 2020 and remained in that position until 2022, at which time she took maternity leave; and
(c)Ms Borghmans had left the MATS team in about January 2021.
Ms Palfreyman submitted that there was ample opportunity for Alfred Health to create a working environment that accommodated her and/or to provide work to her outside the MATS team, whether that be within HARP, or within another practice area.
Ms Palfreyman also maintained the submission that Alfred Health had failed to eliminate the risk of injury to her in the workplace and as a result, had breached cl. 99 of the Enterprise Agreement. The principal evidentiary basis for this submission was the Draft Interim Report prepared by Chris Hicks as part of the External Investigation[51] which contained the following findings:
·…Ms Borghmans also had prior knowledge of issues regarding team behaviours, that led to the commissioning of team building activities in 2017.[52]
·Ms Borghmans was also aware of difficulties that Ms Palfreyman was experiencing with her role, communication etc. This led, in part to the coaching sessions (two of which Ms Borghmans attended) for Ms Palfreyman, facilitated by Ms Christofas.[53]
·In the Consultant’s view all of these elements when looked at collectively suggest a level of risk in how Ms Palfreyman’s role fitted within the MATS team. Ms Borghmans also had prior knowledge of Ms Radmila Mitchell’s interaction style (and had conversations with Ms Mitchell regarding this).[54]
·In her written response to matter 10 Ms Borghmans wrote, “I agree that Stacey had raised issues about some staff behaviours a significant time ago. Stacey may think that I did not do anything, despite me explaining to Stacey that I do act on concerns and issues and that there are processes that need to be followed. However, counselling of staff in consultation with the MATS Team Lead is confidential. Where matters were raised, they in turn were brought to the attention of the MATS team lead, who in turn addressed them with the relevant staff. These are confidential counselling matters. If I committed to address something then I did it. However, I do not brief people outside of those processes”.[55]
·This is further evidence that Ms Borghmans was previously aware of staff behaviour issues within the MATS Team. Whilst Ms Borghmans did taken (sic) actions at the time to address these concerns, there does not appear to have been sufficient monitoring/follow up to assess whether those interventions were effective and enduring.[56]
[51] The Draft Interim Report was produced by Alfred Health in response to a Notice to Produce and became exhibit A1.
[52] Exhibit A1, [6], p 25.
[53] Exhibit A1, [7], p 25.
[54] Exhibit A1, [8], p 25.
[55] Exhibit A1, [5], p 27.
[56] Exhibit A1, [6], p 27.
Alfred Health submitted that Ms Palfreyman’s Enterprise Agreement claim could not succeed for several reasons.
First, and fundamentally, it had never been articulated beyond generalisations and blanket allegations. This was significant given that s 50 of the FW Act is a civil remedy provision.
Second, to the extent that it appeared to rely on findings contained in the Draft Interim Report, such findings could not determine Alfred Health’s compliance with the Enterprise Agreement and neither did they represent views held by Alfred Health.
Third, in circumstances where Ms Palfreyman bears the onus of proving a breach of the Enterprise Agreement, she was unable to do so where the (largely unchallenged) evidence of Mr Wildes included that:
·As soon as Ms Palfreyman produced a certificate of capacity that stated she had capacity for suitable employment (albeit for two half days and with no contact with her previous team), Mr Wildes contacted Ms Palfreyman and offered three potential return to work options, which would be based at Caulfield Hospital.[57]
·Because of the highly specialised nature of individual nurse practitioner roles, it was not possible to offer Ms Palfreyman another nurse practitioner role. These are very highly specialised roles and not transferable between specialities. The information consistently provided by Ms Palfreyman’s treating doctor was that she should not return to work in any position other than a nurse practitioner role as this would cause an increase in anxiety due to the different skill set.[58]
·Alfred Health has rigorous processes and systems in place to prevent and manage workplace injuries and has implemented risk management systems incorporating hazard identification, risk assessment and control, and safe work practices which are referred to and set out in a suite of health and safety policies and strategy documents.[59]
·The health and safety policy documents are widely available to staff through the respondent’s intranet. Further, Alfred Health disseminates health and safety information to employees through mandatory training sessions, on physical OHS notice boards located throughout its premises, by means of information accessible through its intranet and in OHS meetings.[60]
[57] Wildes affidavit at [17]-[18] and annexure JW-5; CB 329.
[58] Wildes affidavit at [26]; CB 330.
[59] Wildes affidavit at [32]-[33] and annexure JW-11.
[60] Wildes affidavit at [35]-[36]; CB 331.
Fourth, Ms Palfreyman’s argument that she could have been returned to MATS without offending the injunction against working with team members named in her complaint proceeded on a mistaken view of the evidence led at trial. In particular, it was not the case that Ms Pilav had spent time out of the MATS team. Instead, the evidence of Ms Vecchi was that she remained in the MATS team until around mid-2022 when she went on long service leave and maternity leave. The argument that team members could be transferred out of the team on disciplinary grounds was also made in ignorance of the relationship between the Enterprise Agreement and Alfred Health policy, although I note Ms Palfreyman conceded this point on the last day of trial.
Fifth, the objective evidence presented to Alfred Health, in the form of successive certificates of capacity (the effect of which has been summarised at [117] above) meant that it was never medically appropriate for Ms Palfreyman to return to work with Alfred Health after 30 November 2018 because at the relevant times she was certified as having no capacity for work with the respondent.
While I have considerable sympathy for Ms Palfreyman who, at times, must have felt that she was going round in circles in her interactions with Alfred Health concerning her return to work, ultimately, I am not persuaded that she has established a breach of the Enterprise Agreement.
While the approach taken by Alfred Health might be perceived as myopic in dimension, it needs to be understood against the parameters and restrictions that consistently applied and were communicated through the medical evidence produced by Ms Palfreyman, as well as the institutional impediments attached to the role of Aged Care Nurse Practitioner. Furthermore, while a different employer might have adopted a more creative approach to the identification of suitable return to work position, this is not the appropriate measure for determining whether there has been a breach of the Enterprise Agreement.
With commendable candour Ms Palfreyman accepted that she occupied a highly specialised role that was unique within the organisation. Ms Palfreyman also acknowledged that her movement into a different Nurse Practitioner role would have required an additional two years of training.
The certificates of capacity – which Ms Palfreyman acknowledged had reflected her instructions to the certifying GP – created tangible constraints and inflexible parameters to her return to the workplace, whether that be to her pre-injury role or to a different role. In this last respect, the criticism that Alfred Health should have explored different duties is difficult to reconcile with the sustained medical advice that counselled against work that was different to a Nurse Practitioner. There was an artificial quality to the notion that Ms Palfreyman or her pre-injury role could be accommodated within the organisation without offending the injunction against contact with her previous team members or working environment. Ms Palfreyman appeared to accept this in her final exchange with counsel for Alfred Health referred to at [53] above.
As far as Ms Palfreyman’s other claims are concerned, little effort or attention was directed at interrogating the evidence of Mr Wildes about the measures taken by Alfred Health to maintain, educate about and promote safe systems of work. I am also not persuaded that the views expressed by the author of the Draft Interim Report or the fact that Ms Palfreyman suffered a workplace injury are matters that without more can establish a breach of Alfred Health’s obligations under the Enterprise Agreement.
ORDERS

This case was concerned only with liability. In these circumstances, and where full argument on the necessity of declarations did not take place before me, the only order I propose to make at this time is one listing the proceeding for a directions hearing for the purpose of fixing a timetable for a hearing on the question of relief, including any penalties.

I certify that the preceding one hundred and forty-seven (147) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons.
Associate:
Dated: 18 September 2024

File number:	MLG 2955 of 2021
Judgment of:	JUDGE SYMONS
Date of judgment:	18 September 2024
Catchwords:	INDUSTRIAL LAW – Fair Work – where applicant dismissed from employment following lengthy absence due to workplace injury – where applicant employed in specialist nurse practitioner role – where applicant alleged dismissal adverse action was taken because she exercised workplace rights within the meaning of s 341 of the Fair Work Act 2009 (Cth) – identification of decision makers – where not all decision makers gave direct testimony – whether respondent able to discharge statutory reverse onus – finding that respondent contravened s 340(1) of the Fair Work Act – whether respondent breached obligations under the applicable Enterprise Agreement – whether respondent failed to assist the applicant to remain at work or return to work in suitable employment – no breach of Enterprise Agreement established – matter adjourned for hearing on penalty and relief
Legislation:	Evidence Act 1995 (Cth), s 140 Fair Work Act 2009 (Cth), ss 50, 340, 341, 342, 360, 361, 539, 793 Occupational Health and Safety Act 2004 (Vic) Workers Injury Rehabilitation and Compensation Act 2013 (Cth) Nurses and Midwives (Victorian Public Health Sector) (Single Interest Employers) Enterprise Agreement 2016-2020, clauses 99, 100, 104
Cases cited:	Alam v National Australia BankLimited (2021) 288 FCR 629; [2021] FCAFC 182 Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 369 Wong v National Australia Bank Limited (2022) 318 IR 148; [2022] FCAFC 155
Division:	Division 2 General Federal Law
Number of paragraphs:	147
Date of last submissions:	24 May 2023
Date of hearing:	22-24 May 2023
Place:	Melbourne
Counsel for the Applicant:	Mr I Latham
Solicitor for the Applicant:	JPM Law
Counsel for the Respondent:	Mr M Rinaldi
Solicitor for the Respondent:	DLA Piper

MLG 2955 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	STACEY PALFREYMAN Applicant
AND:	ALFRED HEALTH Respondent

ORDER MADE BY:	JUDGE SYMONS
DATE OF ORDER:	18 SEPTEMBER 2024