Palfreyman v Alfred Health (No 3)
[2025] FedCFamC2G 725
•20 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Palfreyman v Alfred Health (No 3) [2025] FedCFamC2G 725
File numbers: MLG 2955 of 2021 Judgment of: JUDGE SYMONS Date of judgment: 20 May 2025 Catchwords: PRACTICE AND PROCEDURE – Fair Work – where earlier finding of contravention of s 340(1) of the Fair Work Act 2009 (Cth) – where finding of liability reflected failure of the respondent employer to discharge onus under s 361(1) of the Fair Work Act- where proceeding listed separately for hearing on relief – where respondent sought to rely on evidence of “decision-maker” to make submissions about compensation and penalty – where “decision-maker” had not given evidence at the liability hearing – where applicant objects to parts of affidavit – whether respondent is estopped from relying on parts of evidence of “decision-maker” because they invite the Court to trespass on findings of fact or law made in the liability judgment – objections upheld in part Legislation: Fair Work Act 2009 (Cth), ss 340, 361, 546
Occupational Health and Safety Act 2004 (Vic)
Cases cited: Australian Securities and Investments Commission v SunshineLoans Pty Ltd [2025] FCAFC 32
Blair v Curran [1939] HCA 23; 62 CLR 464
Hoystead v Commissioner of Taxation [1926] AC 155
Leggett v Hawkesbury Race Club Limited (No 1) [2021] FCA 1298
Palfreyman v Alfred Health (No 2) [2024] FedCFamC2G 241
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of last submissions: 9 April 2025 Date of hearing: Matter determined on the papers 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 Australia 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:
20 MAY 2025
THE COURT ORDERS THAT:
1.With respect to the affidavit of Ms Bolster dated 6 March 2025 that:
(a)the objections to paragraphs [39], [40], [41], [43], [44] and the last sentences of [38] and [47] be dismissed; and
(b)the objections to paragraphs [51], [58], [60], [61] and the last sentence of [55] be upheld, and that those paragraphs and sentence be struck out.
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
On 18 September 2024 I published reasons for judgment in Palfreyman v Alfred Health (No 2) [2024] FedCFamC2G 241 (liability judgment or LJ) which included the finding that the respondent, Alfred Health, had failed to discharge its onus under s 361(1) of the Fair Work Act 2009 (Cth) (FW Act) to disprove that it took adverse action against the applicant, Ms Palfreyman, for the prohibited reason attributed to it (LJ, [127]). This finding was made, in part, because there was limited evidence before the Court concerning Ms Danielle Bolster, an employee of Alfred Health who was found to have made a material contribution to the decision to terminate the employment of Ms Palfreyman.
Following publication of the liability judgment, the matter was set down for a hearing on the question of relief and penalty with orders made for the filing of submissions and affidavit evidence. The hearing on relief and penalty commenced on 20 March 2025 and concluded on 21 March 2025, save for one matter that has necessitated this judgment.
The issue concerns the admissibility of parts of an affidavit of Ms Bolster dated 6 March 2025 upon which Alfred Health wishes to rely on the question of relief and penalty.
Ms Palfreyman seeks a ruling that parts of that affidavit – namely paragraphs 38 (last sentence), 39, 40, 41, 43, 44, 47 (last sentence), 51, 55 (last sentence), 58, 60 and 61 (objected paragraphs) – be struck out and that Ms Bolster be denied leave (if sought) to give oral evidence as to the matters referred to in the objected paragraphs.
Alfred Health submits that the objections to the Bolster affidavit identified by Ms Palfreyman are misconceived.
In determining how to deal with the objections, I have been assisted by submissions of Ms Palfreyman filed on 28 March 2025 and 9 April 2025 and submissions of Alfred Health filed on 4 April 2025.
MS PALFREYMAN’S SUBMISSIONS
Ms Palfreyman contends that the issues that Ms Bolster seeks to agitate in the objected paragraphs are the same issues that were the subject of findings of the Court in the liability judgment and therefore the related principles of issue estoppel and res judicata are engaged in relation to her proposed evidence.
Ms Palfreyman relies on the discussion of these principles in Leggett v Hawkesbury Race Club Limited (No 1) [2021] FCA 1298 where at [10] Rares J said:
10. In Blair v Curran (1939) 62 CLR 464 at 531-533, Dixon J explained how an issue estoppel arises. He said that a judicial determination directly involving an issue of fact or law disposes of that issue once and for all so that it cannot afterwards be raised by the same parties or their privies. However, the estoppel covers only those matters which the prior judgment necessarily established as the legal foundation or justification for its conclusion:
The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matter of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order.
…
In the phraseology of Lord Shaw, “a fact fundamental to the decision arrived at” in the former proceedings and “the legal quality of the fact” must be taken as finally and conclusively established (Hoystead v Commissioner of Taxation [1926] AC 155).
Ms Palfreyman submits that the purpose of these principles is clear; being to prevent inconsistent factual findings being made and to prevent collateral challenges to judicial decisions, by way of re-litigation of issues already decided. She submits that Alfred Health, by way of reliance on the objected paragraphs, is seeking to displace findings of fact and conclusions of law previously made by the Court in the liability judgment. This, according to Ms Palfreyman, is a clear case where the principle of issue estoppel is engaged.
Turning then to the objected paragraphs, Ms Palfreyman makes the following submissions:
Paragraphs 38 (last sentence), 39, 40, 41, 43, 44
Ms Palfreyman submits that the matters deposed to in these paragraphs relate to the meeting on 20 May 2021 between Ms Bolster, Ms Mattiacci (HR Business Partner for Alfred Health), Ms Palfreyman and Mr Olden. The meeting is referred to in paragraph [33] of the liability judgment.
Ms Palfreyman submits that by these paragraphs, Ms Bolster seeks to add further factual matters to the conversation at that meeting, in circumstances where the Court has made factual findings in the liability judgment on the basis of the unchallenged evidence of Mr Olden as to the accuracy of his contemporaneous file note of the meeting.
Ms Palfreyman submits that the finding of the Court at LJ [33] necessarily entails a finding that not only did the meeting transpire as Mr Olden’s file note records, but also a finding that the meeting, and what was discussed in it, had “the legal quality of the fact” as recorded therein, such that what transpired at the meeting “must be taken as finally and conclusively established” (referring to Blair, citing Hoystead v Commissioner of Taxation [1926] AC 155).
Paragraph 47 – last sentence
Ms Palfreyman submits that the matters deposed to in this paragraph relate to the meeting on 1 July 2021 between Ms Bolster, Ms Mattiacci, Ms Palfreyman and Mr Olden, that is referred to in paragraph [36] of the liability judgment.
Ms Palfreyman notes that in the last sentence of [47], Ms Bolster appears to challenge the accuracy of the Olden notes, although she does not depose to any further facts for the basis of that challenge – that is, what else may have been “discussed at that meeting”.
Ms Palfreyman submits that by this sentence, Ms Bolster seeks to add further factual matters to the conversation at that meeting (but without identifying them), in circumstances where the Court has made factual findings in the liability judgment on the basis of the unchallenged evidence of Mr Olden as to the accuracy of his contemporaneous file note of the meeting.
Ms Palfreyman submits that the finding of the Court at [36] of the liability judgment necessarily entails a finding that not only did the meeting transpire as Mr Olden’s file note records, but also a finding that the meeting, and what was discussed in it, had “the legal quality of the fact” as recorded therein, such that what transpired at the meeting “must be taken as finally and conclusively established”.
Paragraphs 51, 55 (last sentence), 58, 60 and 61
Ms Palfreyman notes that at [127] of the liability judgment, the Court recorded the following:
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.
At [51] of her affidavit, Ms Bolster deposes as to her preliminary view as to the reason for the termination of the applicant’s employment:
After consultation with Ms Mattiacci and Mr Longhurst, I formed the preliminary view that subject to anything further that the Applicant might present, the Respondent had no other option but to terminate the Applicant’s employment based on her incapacity to perform the inherent requirements of her role safely and the lack of any other suitable available position for her. That was my opinion.
Ms Palfreyman notes that the same state of mind of Ms Bolster is also deposed to at [55] (last sentence), [58], [60] and [61].
Ms Palfreyman submits that the evidence in those paragraphs is directly inconsistent with the finding of the Court at [127] of the liability judgment which finding necessarily entails a finding that Alfred Health 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 FW Act was inevitable. The paragraph also involves a finding of “the legal quality of the fact” that Alfred Health took adverse action against Ms Palfreyman because she had a workplace right, or exercised a workplace right, which “must be taken as finally and conclusively established”.
Ms Palfreyman submits that should the Court find (against her primary submission) that issue estoppel does not arise in relation to the above-mentioned paragraphs, because of a possible finding that the raising by Alfred Health of the reason for it taking adverse action against Ms Palfreyman goes to the cause of action, rather than its underlying factual matrix, it should be precluded from relying on these paragraphs through the application of the doctrine of res judicata.
ALFRED HEALTH’S SUBMISSIONS
As I noted at the outset, Alfred Health submits that Ms Palfreyman’s objections to the Bolster affidavit are wholly misconceived. Alfred Health submits that the Court would fall into fundamental and grave error if it was to exclude the objected paragraphs.
Alfred Health submits, by reference to [127] of the liability judgment (referred to at [18] above), that the issue (and the only issue) decided by the Court in the liability judgment was whether the statutory presumption in s 361 of the FW Act (when read with s 360) was rebutted by Alfred Health by way of the evidence adduced in the liability hearing (and accordingly whether a finding of contravention of s 340(1) of the FW Act should be made). Alfred Health identifies this “issue” as the only issue in respect of which issue estoppel might operate. Further, in circumstances where there were no orders made by the Court as a result of the liability judgment, there is no res judicata.
Alfred Health submits that the evidence it has sought to adduce in the relief hearing from Ms Vecchi and Ms Bolster, relates to the question of the relief (including penalty), if any to be ordered by the Court for its contravention of s 340(1) of the FW Act. This is said to be a different issue to the one decided by the liability judgment, which issue can only be controverted by way of an appeal.
Alfred Health submits that the evidence of Ms Bolster goes to her intention and conduct as an employee of Alfred Health in relation to the termination of Ms Palfreyman’s employment. Alfred Health submits that such matters are relevant to the question of penalty under s 546 of the FW Act, including to factors such as the nature and extent of the conduct which led to the breach, the circumstances in which that conduct took place, the involvement of senior management, whether the breach was deliberate, and the need for specific deterrence.
Alfred Health submits that each of the objections taken by Ms Palfreyman that operate on paragraphs [33], [36] and [127] of the liability judgment, relate to factual findings which do not represent the finding of the Court on the “issue”. Instead, they are all findings relating to the factual or evidentiary quality of evidence, rather than “the legal quality of the fact”. According to Alfred Health, no issue estoppel arises in respect of those findings, particularly when the ‘issue” determined by the liability judgment is not being challenged.
Alfred Health submits that as far as [127] of the liability judgment is concerned, because it did not involve a positive finding that Alfred Health (acting through any relevant person, including Ms Bolster) had been motivated by an improper purpose in deciding to terminate Ms Palfreyman’s employment, or otherwise that the established contravention was deliberate, the paragraphs of the Bolster affidavit ([55] (last sentence), [58], [60] and [61]) which concerned Ms Bolster’s state of mind, would not come into conflict with the conclusion of the Court.
MS PALFREYMAN’S SUBMISSIONS IN REPLY
Ms Palfreyman submits that the distinction that Alfred Health seeks to draw – namely, that the evidence of Ms Bolster is being adduced for the purpose of addressing issues relevant to relief only – is misplaced. She submits that to permit the adduction of that evidence on that basis would still offend the principle of issue estoppel as the relief hearing is “the other claim or cause of action” in respect of which states of fact or law decided by the liability judgment will come into conflict.
Ms Palfreyman submits that the attempt by Alfred Health to confine the “issue” as it relates to paragraph [127] of the liability judgment is misconceived. Instead, on proper analysis, the finding in that paragraph was that Alfred Health took adverse action against Ms Palfreyman because she had a workplace right or exercised a workplace right.
Ms Palfreyman submits that there is no counter-factual before the Court. It is unknown what the Court would have found with respect to Alfred Health’s section 361 onus had there been evidence before it concerning the state of mind of Ms Bolster when she came to make the termination recommendation. It follows that any submission as to what the Court would have found in those circumstances is pure speculation.
CONSIDERATION
In the recent decision of Australian Securities and Investments Commission v SunshineLoans Pty Ltd [2025] FCAFC 32, a Full Court of the Federal Court had occasion to consider the question of whether the fact that the primary judge had made adverse credit findings about a witness in a hearing on liability would disqualify him, on the ground of apprehended bias, from hearing the case on penalty, including in circumstances where the same witness was expected to give evidence. The primary judge had allowed the recusal application made by the respondent and disqualified himself from hearing the corporate regulator’s case on penalty. A majority of the Full Court found that the circumstances of the case did not give rise to apprehended bias and there was no impediment to the primary judge hearing and determining the question of penalty having first found that the case on liability was established.
While the circumstances of SunshineLoans are not on all fours with this case, the reasoning of the appeal judges provides a useful starting point in the evaluation of the questions that fall to be determined here. This is especially so because in SunshineLoans, it was expected that the witness about whom adverse credit findings had been made would address issues related to the Court’s determination of an appropriate penalty.
To begin with, Perram J (who was in the minority and would have refused ASIC’s appeal) said (at [25]) about the nature of a penalty hearing and its place vis à vis the hearing on liability that:
…In many cases these will require fact finding beyond the terms of the conclusive declaration [as to liability]. But a trial judge’s reasons for granting a declaration of contravention will often traverse many of these matters [relevant to penalty]. Where they do, issue estoppels are likely to arise between the parties which will bind them in any penalty hearing. Attempts to contradict such findings at any penalty hearing may also, in appropriate circumstances, constitute an abuse of process.
Then, Bromwich J (who was in the majority that allowed ASIC’s appeal) said the following (at [100]) in the context of a discussion about and identification of “categories of pre-judgment cases”:
A third type of case can be distinguished from the first and second. This is one where the judge is permitted or required to have regard to, and apply, findings made at an earlier stage of the proceedings. In this category of case, a logical connection between findings made at the earlier stage of the proceedings and the feared impartiality at the later stage cannot be established merely on the basis that that judge has determined facts in dispute, or had regard to evidence that is not led at the penalty hearing. These two bases on which the second Ebner step may be established in true prejudgment cases are absent here. That is because the judge is required, or at least is entitled, to have regard to those factual findings and the evidence on which the appropriate penalty will be determined will overlap, perhaps entirely, with the evidence on which liability was established. Moreover, the party the subject of the liability finding may wish to revisit aspects of what has been determined, such as to adduce evidence of what has been done to address the problem of a kind that would not be relevant or admissible, or may be prejudicial, at the liability determination stage.
His Honour later disclaimed the appropriateness of the nomenclature “pre-judgment” to this type of case, preferring instead to describe it as “a judgment of a kind that was required to be carried forward to the remedies stage regardless of who heard it” (SunshineLoans at [124]).
Finally, Colvin J (who was also in the majority) said this (at [159]):
It is also important to distinguish the point at issue in the present appeal from principles that are concerned with issue estoppel. In a case like the present, the reasons given by the primary judge after the first hearing will give rise to findings of fact and law. Issue estoppel (and related parts of the doctrine of abuse of process) would mean that in the ordinary course findings as to the nature and quality of the contravening conduct made at the first hearing could not be called into question at a later hearing as to penalty. Evidence that seeks to contradict those findings could not be led. For example, it would not be open to Sunshine to seek to contradict findings made by the primary judge on the questions of jurisdiction and liability…However, the point at issue in the present case concerns those issues which have not yet been determined in respect of which evidence is sought to be led from Mr Powe…
What these passages confirm is firstly, the appropriateness and orthodoxy of a bifurcation of a proceeding concerned with alleged contraventions of civil penalty provisions to first determine “liability” and then, if necessary, the question of “relief”. They also confirm the character of these proceedings as permitting the “carrying forward” of the judgment to the second stage and of importance to this case, that the doctrine of issue estoppel will apply to findings of fact and law – which include findings on questions of liability – recorded after the first hearing.
The submissions of the parties reflect a general agreement about these matters. The sticking point is how the “issues” are to be defined and whether, in the context of a hearing directed at relief, they permit of supplementation. It is complicated because in this case (and unlike in SunshineLoans) the finding of liability was made largely based on the absence of any direct testimony from Ms Bolster, who the Court found had made a material contribution to the decision taken by Alfred Health to terminate Ms Palfreyman’s employment. Thus, while Alfred Health says it is now adducing evidence from Ms Bolster directed at the separate question of “relief” some care needs to be taken to ensure that what in fact is not happening is the introduction of evidence that could have been led at the liability stage and therefore trespasses on the issues already decided.
Rulings on the objected paragraphs
The objected paragraphs contain subject matter that falls broadly into one of two categories. In the first – comprehending paragraphs [38] (part), [39]-[41], [43]-[44] and [47] (part) – is evidence about what (from Ms Bolster’s point of view) was discussed at return-to-work meetings held on 20 May 2021 and 1 July 2021 between Ms Palfreyman, her Union representative and representative of Alfred Health. In the second – comprehending paragraphs [51], [55] (part), [58] and [60]-[61] – Ms Bolster deposes to the reasons as to why she supported the decision to terminate Ms Palfreyman’s employment. I will deal with each of these categories of evidence separately.
Ms Bolster’s evidence about return-to-work meetings
The objected paragraphs concerning this subject are as follows:
38. I have read the notes of Simon Olden from the 20 May 2021 meeting which are annexed to his affidavit dated 20 September 2022 (Olden affidavit) at pages 5-6 of Annexure SO-1. Broadly, the notes of the meeting align with my recollection of what was discussed at the meeting at a high level. However, they do not contain a full account of what was discussed at the meeting.
39. As well as the matters described by Mr Olden in his notes, my recollection is that we also discussed in more detail that the Respondent had extensively explored alternative options to return the Applicant to employment with the Respondent other than returning to her substantive role and has also explored whether it would be possible to adjust the Applicant’s substantive role so that she would not be required to interact with the MATS team, particularly the people about whom the Applicant had complained: Radmila Mitchell, Emina Pilav and Felice Borghmans (as the Applicant’s medical information was clear that she should not interact with those individuals).
40. I explained that it was not possible to provide a comparable role of nurse practitioner that did not involve interaction with the MATS team to the Applicant at that time. Because of the highly specialised nature of the work and the Applicant’s specific endorsement, Ms Palfreyman could not be transferred to an equivalent Nurse Practitioner role in another service or team.
41. I did discuss with the Applicant that at that time the Respondent was developing a new model of care for a project called the “Best at Home” project, within the Respondent's Home, Acute and Community Program. I said to the Applicant that as part of that new model of care, it was envisaged that nurse practitioner roles would be explored and developed and that those roles may be aligned with the Applicant’s skills and scope of practice. I also explained that the focus at that time was on developing the model of care, and that I did not expect that any nurse practitioner roles would be implemented within the next 12-15 months, due to the considerable body of work required to develop a nurse practitioner role and its defined scope of practice. Again, there was no existing nurse practitioner role for the Applicant to step into, and there was uncertainty that there would be an appropriate nurse practitioner role for the Applicant in the foreseeable future.
…
43. In my meeting with the Applicant, her representative Mr Olden conveyed that he did not believe that the Respondent had offered the Applicant a suitably comparable role. I responded to Mr Olden that there were no such suitably comparable roles which were available.
44. I also explained that changes could not be made to the Applicant’s role so that she would not have contact with the people she had complained about. The staff that the Applicant had identified in her complaint were part of the clinical team (and one remains part of the MATS clinical team as I describe below). The Applicant’s role was integral and highly interconnected with the clinical and managerial MATS team on a shift by shift basis. It was also not practical or clinically safe to have the Applicant report to someone else outside of the team. I explained that in my opinion, the Applicant’s reporting line could not be changed. I asked the Applicant how she proposed a change in reporting line could work in practice. The Applicant did not put forward a concrete proposal of how that could work.
…
47. On 1 July 2021, I met with the Applicant, Mr Olden and Ms Mattiacci by Microsoft Teams. I have read the notes of Simon Olden from that meeting which are annexed to the Olden affidavit at pages 8-9 of Annexure SO-1. Broadly, the notes of the meeting align with my recollection of what was discussed at the meeting at a high level. However, they are not a verbatim transcript of everything that was discussed at the meeting.
(emphasis added to identify the sentences to which objection is taken)
As Rares J explained (in the passage cited earlier at [8] from Leggett), issue estoppel covers only those matters which the prior judgment necessarily established as the legal foundation or justification for its conclusion. It is necessary therefore to consider what, if any, findings of a conclusive and operative nature were recorded in the liability judgment on the topic of the return-to-work meetings that took place on 20 May and 1 July 2021.
A discussion of these meetings takes place at [33] and [36] of the liability judgment and in a section of the judgment that records matters which were “either agreed between the parties and/or are taken from documents that were put before the Court without objection and whose content speaks for itself” (LJ, [8]). In both cases, what is recorded in these paragraphs is the content of a file note that was annexed to the affidavit of Mr Olden prepared for the liability hearing and adopted by him during cross-examination and transcribed to the extent necessary to assist with the legibility of the words that had been recorded. The Court accepted the veracity of the file note in the case of both meetings. However, no finding was made as to whether in either case, the file note represented a complete account of what had transpired in the meeting, although the liability judgment does record that Mr Olden disagreed with the proposition put to him that during the meeting of 20 May 2021, there had been an “extensive discussion about Alfred Health’s efforts to explore alternative options to return Ms Palfreyman to employment” and 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” (LJ, [56]).
More importantly, no finding was made in the liability judgment which relied upon the Court’s acceptance of the truth and comprehensiveness of the file notes, that possessed the character of establishing the legal foundation or justification for the Court’s conclusion that Alfred Health had contravened s 340(1) of the FW Act when it made the decision to terminate Ms Palfreyman’s employment. Neither does anything recorded in the liability judgment concerning the meetings of 20 May and 1 July 2021 trespass on the “nature and quality of the contravening conduct” (cf. SunshineLoans at [159] per Colvin J).
In these circumstances, I am not satisfied that the doctrine of issue estoppel (or for that matter res judicata) is engaged with respect to this first category of objected paragraphs and Alfred Health will be permitted to read and rely on these when the matter resumes on 30 May 2025. Having said that, I make the observation that Alfred Health will still need to convince the Court that these paragraphs, which operate to supplement what was said by Ms Bolster at the two meetings, are relevant to the questions that the Court is required to resolve at the relief hearing.
Ms Bolster’s evidence about the reasons as to why she “supported” the decision to terminate Ms Palfreyman’s employment
In this second category are the following paragraphs which read:
51. After consultation with Ms Mattiacci and Mr Longhurst, I formed the preliminary view that subject to anything further that the Applicant might present, the Respondent had no other option but to terminate the Applicant's employment based on her incapacity to perform the inherent requirements of her role safely and the lack of any other suitable available position for her. That was my opinion.
…
55. On 9 August 2021 , I received an email from the Applicant in reply to my 22 July 2021 letter. The Applicant's email dated 9 August 2021 is annexed to the Applicant's first affidavit at pages 229-230. The email did not raise any additional matters that changed my view that the Applicant could not perform the inherent requirements of her role and there were no alternatives to termination because she could not be redeployed to any other role.
…
58. However, I supported that decision and agreed with it because, based on the medical information, the Applicant could not perform her role and there were no alternatives, because the Respondent could not change her role to meet her medical restrictions, and she could not be redeployed to any other role because there were no other nurse practitioner roles available and she would not accept any other roles which she was able to perform as outlined in paragraphs 41 to 44 above. Those were my only reasons for supporting the termination of the Applicant's employment.
…
60. My support for the termination of the Applicant's employment was not influenced in any way by those factors described above and was not for those reasons. It was only because the Applicant could not perform her job because of the medical restrictions upon her and there was no alternative to allow her to return to work with the Respondent.
61. I believe, based on the Applicant's certified medical restrictions and the unsuccessful attempts to find an alternative role for her with the Respondent as outlined in paragraphs 41 to 44 above, that there was no available alternative to termination of her employment with the Respondent.
(emphasis added to identify the sentences to which objection is taken)
In the liability judgment, the Court recorded a finding (at LJ, [127]) that Alfred Health had failed to discharge its onus under s 361 of the FW Act, with the result that the statutory presumption applied and a finding that Alfred Health contravened s 340(1) of the FW Act must follow. The pleaded contravention was that Alfred Health had terminated Ms Palfreyman’s employment for the reason, or for reasons that included, the exercise of her workplace right to make a complaint in relation to her employment and her possession of a workplace right in the form of her entitlement to the benefit of a workplace law (the Occupational Health and Safety Act 2004 (Vic)).
This finding on liability reflected anterior findings of the Court, including that:
(a)The catalyst for Mr McCall-White considering whether to endorse the decision to terminate Ms Palfreyman’s employment was the decision taken by Ms Bolster to recommend the termination (LJ, [106]);
(b)Ms Bolster’s contribution to the termination decision was material (LJ, [107]);
(c)The involvement of 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 (LJ, [107]).
While I accept the submission of Alfred Health that the liability judgment did not contain a positive finding that Alfred Health, acting through any relevant person (including Ms Bolster) had been motivated by an improper (or proscribed) purpose in deciding to terminate Ms Palfreyman’s employment, I reject the submission that the finding as to liability for contravention of s 340(1) of the FW Act should be read as narrowly as Alfred Health would suggest.
Read sensibly, the liability judgment contains or is underscored by a finding, at least implicit, that Alfred Health failed to disprove that the contribution of Ms Bolster to the decision-making process was entirely benign and was motivated in part by one or more of the proscribed reasons. Alfred Health now wishes to rely on evidence from Ms Bolster that her reasons for supporting the termination of Ms Palfreyman’s were entirely benign and only reflected the inability (on medical grounds) of Ms Palfreyman to perform her substantive role.
While Alfred Health has not in clear terms identified the purpose for which it seeks to rely on Ms Bolster’s evidence about the matters that informed her contribution to the termination decision, the obscurity around the significance of the evidence reinforces the disquiet of the Court that reliance on such evidence will inevitably involve an incursion into findings about the nature of the contravention that were the subject of the liability judgment. It is difficult to conceive of how the Court might approach evidence about what actuated Ms Bolster in her contribution to the termination decision without trespassing on and coming into conflict with the findings on liability recorded in the liability judgment.
In a similar vein, the attempt by Alfred Health to lead evidence that if accepted, would subordinate the involvement of Ms Bolster in the decision-making process to one whereby she “supported” the proposal to terminate creates the prospect of inconsistent findings about the quality of the contribution made by Ms Bolster to the termination decision.
For these reasons, I uphold Ms Palfreyman’s objections to paragraphs [51], [55] (part), [58] and [60]-[61] of Ms Bolster’s affidavit and will order that they not be permitted to be read and relied upon by Alfred Health when the hearing on relief resumes on 30 May 2025.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 20 May 2025
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