Queensland Nurses' Union of Employees v Australian Red Cross Society
[2016] FCCA 2320
•11 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| QUEENSLAND NURSES' UNION OF EMPLOYEES v AUSTRALIAN RED CROSS SOCIETY & ORS | [2016] FCCA 2320 |
| Catchwords: INDUSTRIAL LAW – Adverse actions – union activity – sole decision maker – whether decision infected – onus not discharged. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 342, 346, 347, 351, 361, 386, 545, 546 |
| Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 |
| Applicant: | QUEENSLAND NURSES' UNION OF EMPLOYEES |
| First Respondent: | AUSTRALIAN RED CROSS SOCIETY |
| Second Respondent: | RHIANNON FEALY |
| Third Respondent: | LISA MCILROY |
| File Number: | BRG 938 of 2014 |
| Judgment of: | Judge Vasta |
| Hearing date: | 24, 25, 26 November 2015 and 29, 30, 31 August 2016 |
| Date of Last Submission: | 31 August 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 11 October 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Reed |
| Solicitors for the Applicant: | Queensland Nurses' Union Of Employees |
| Counsel for the First Respondent: | Mr Rinaldi |
| Solicitors for the First Respondent: | Landers & Rodgers Lawyers |
Counsel for the Second Respondent: | Mr Rinaldi |
| Solicitors for the Second Respondent: | Landers & Rodgers Lawyers |
Counsel for the Third Respondent: | Mr Rinaldi |
| Solicitors for the Third Respondent: | Landers & Rodgers Lawyers |
ORDERS
THE COURT DECLARES THAT:
The First Respondent by making an accusation of unsatisfactory performance against Ms Baillie, specifically that:
(a)Ms Baillie refused to accept the feedback from the PIP;
(b)That there was no indication of a willingness to improve on the part of Ms Baillie; and
(c)That Ms Baillie did not accept the “integrity” of the process
contravened s.340(1)(a)(i) of the Fair Work Act 2009 (Cth) (“the FW Act”).
The matter be adjourned for a penalty hearing on a date to be advised.
.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 938 of 2014
| QUEENSLAND NURSES' UNION OF EMPLOYEES |
Applicant
And
| AUSTRALIAN RED CROSS SOCIETY |
First Respondent
And
| RHIANNON FEALY |
Second Respondent
And
| LISA MCILROY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Janet Baillie had worked for the Blood Service for over 12 years. The Blood Service needed to change its culture to become a more efficient business. As a result of this, Ms Baillie found herself put on a performance improvement plan (“PIP”) after a critical work appraisal. Following an incident in March 2014, Ms Baillie was given a first warning letter. A little over a month later, she was given a second and final warning letter. Ms Baillie contends that this caused her to resign.
By amended claim dated 20 November 2015, the Applicant seeks that the Court make:
a)A declaration that the First Respondent, by dismissing Ms Janet Baillie on 22 August 2014, contravened s. 340, 346 and 351 of the Fair Work Act 2009 (Cth) (“the FW Act”);
b)A declaration that the First Respondent by making certain accusations, issuing warnings to, and threatening to terminate Ms Baillie, contravened s.340, 346 and 351 of the FW Act;
c)An order pursuant to s.545 of the FW Act that the First Respondent reinstate Ms Baillie to the position occupied by her immediately prior to 22 August 2014 or alternatively to a suitable position at the same classification level;
d)An order pursuant to s.545 of the FW Act that the First Respondent pay compensation to Ms Baillie as a result of the loss she has suffered because of the First Respondent’s contraventions of the FW Act, namely, compensation for financial loss, compensation for economic loss (if reinstatement is not ordered) and compensation for her distress and humiliation;
e)An order for interest to be paid on the amount of compensation ordered;
f)An order pursuant to s.546 of the FW Act that the First Respondent pay pecuniary penalties from its contraventions of the FW Act;
g)An order pursuant to s.546 of the FW Act that the pecuniary penalties be paid to the Applicant.
The background to this claim is that the Applicant is an “Industrial Association” as defined in the FW Act and is entitled to represent the industrial interests of Janet Baillie. This action revolves around the treatment of Ms Baillie.
Ms Baillie is a registered nurse and has been a member of the Applicant since April 1997. She commenced employment with the Australian Red Cross Society (“the First Respondent”) on 11 February 2002. She began working at the Edward Street Donor Centre (“ESDC”) in about 2007. From 2012, Ms Baillie was the branch secretary of the Applicant for the Red Cross Blood Service branch of the Applicant.
The Second Respondent, Rhiannon Fealy, began working as the Acting Donor Centre manager at the ESDC in about October 2013 and was permanently appointed to the position in early November 2013.
The Third Respondent, Lisa McIlroy, is the area manager for the First Respondent and has responsibility for a number of donor centres. She has been the area manager for the region that includes ESDC since April 2006.
Ms Melanie Thompson was the Queensland manager of donor services for the First Respondent. Ms Thompson gave evidence that she was the sole decision maker involved in the decision to send the warning letters to Ms Baillie.
Chronology
Throughout 2012 and 2013 Ms Baillie, as a representative of the Applicant, and on behalf of nursing employees at ESDC, engaged in various activities and made complaints and enquiries to the First Respondent in relation to both her own employment and the working conditions of nursing employees at ESDC.
These activities included:
a)participating in a ban on wearing uniform in or around October and November 2013;
b)distributing and displaying campaign material in or around October and November 2013; and
c)participating in a ban on the performance of work on 30 October 2013 and 22 November 2013
d)organising, promoting and signing the Saline Petition in October 2012;
e)making representations to nurses in the tea room and elsewhere about issues in the negotiation for what became the Australia Red Cross Blood Service Queensland Nursing Enterprise Agreement 2014 in April and May 2013
f)making representations to nurses about inadequate staffing levels, problems with the donor appointments system and inadequate nurse/donor ratio; and
g)organising, promoting, participating in and encouraging other employees of the First Respondent to participate in the Protected Action.
None of that evidence is in dispute. There were disagreements between staff at ESDC and the Applicant as to whether some of these activities were within the lawful boundaries of activities for the union. Whether these activities were within those boundaries, or whether the activities transgressed the boundaries, is not a matter that I have to decide.
By 2012, the First Respondent realised that it had to move into the 21st century. This meant an overhaul of the practices that were leading to inefficiencies within the Blood Service. The Blood Service had to operate as a business. This meant that there had to be changes in the way in which the Blood Service operated. Of course, with change comes a measure of disquiet for those who are used to the way things have always been.
Up to this point, management had not raised any issues with Ms Baillie about her performance. On the evidence before me, Ms Baillie had previously been given positive performance appraisal reviews. However, this was during the time that the ESDC was performing inefficiently.
The First Respondent had a number of key performance indicators (“KPI”) that measured donor satisfaction. Donor satisfaction is essential for the First Respondent to operate efficiently. The two major areas of performance where ESDC were perceived to be lacking were “Time to couch” and conversations about the Blood Service business occurring in the presence of donors.
“Time to couch” is a measurement of how long it takes from the time of the appointment until the time that the donor has a needle in their arm. Obviously, if a donor is late for their appointment, the time to couch will blow out. Nevertheless, it was incumbent upon the First Respondent to be as quick as possible, whilst still doing all that was necessary for donor safety, to have the donor donating their blood. The amount of time that such a process was taking was a large proportion of donor complaints at ESDC.
It is also necessary for there to be minimal, if any, conversation about the internal machinations of the Blood Service within the hearing of donors. Obviously, donors do not want to hear what is happening in the workplace and such conversations may not fill a donor with particular confidence. It is also extremely unprofessional and not befitting of a modern service dedicated to giving a donor a “pleasurable” experience which would encourage them to donate their blood again. On the evidence, this practice of inappropriate conversations was prevalent at ESDC.
As much as Ms Baillie may seek to minimise what had been happening at ESDC, it is clear on the evidence that these behaviours were a major worry for the management of the First Respondent. Obviously, there needed to be a change of culture at ESDC. Implementing such a culture change was clearly the brief of the Third Respondent and then later the brief of the Second Respondent.
Performance Development Plan (“PDP”) of 11 October 2013
On 11 October 2013, Ms Baillie undertook a new performance review with the Third Respondent. Whilst the details of that meeting are the subject of some dispute, the result of that meeting was that Ms Baillie was marked as “unsatisfactory” in the area dedicated to “results”. It was noted by the Third Respondent that Ms Baillie was “very negative about change”.
When it came to the section headed “Blood Service Behaviours: Living the Blood Service Values”, there was much written. It was noted that Ms Baillie had been quite vocal about changes within the Blood Service and that “she makes this known to all the team”. It was also noted that Ms Baillie can speak disrespectfully to people on occasion and can appear to not value input from others.
It was also noted that Ms Baillie was resistant to change that the business needs to make and that she can be very vocal about her own opinions and display this negatively. It was noted that she also struggles with boundaries and can be negative in team meetings. It was noted that she was very set in the old ways and negative about the Blood Service direction; that she does not support changes that are required to drive the business forward and that she does not contribute to new ideas.
One of the matters spoken about in this part of the meeting involved a suggestion by the Third Respondent that Ms Baillie was trying to influence people because of her position as a union representative.
The background to this suggestion occurred when the new workplace, health and safety representative started her new duties. Ms Baillie spoke to this officer in front of another staff member informing that officer of the fact that she was allowed time to complete duties. Ms Baillie contends she was just informing the officer of her rights. However the other staff member appeared to interpret this conversation as an attempt by Ms Baillie to ensure this officer knew that Ms Baillie was “with the union”.
Ms Baillie maintains that the other staff member’s name, Deb Westerman, was mentioned in the meeting whereas the Third Respondent maintains that there was no mention of names. Whether there was a mention of names or not, the description of the incident would have left Ms Baillie in no doubt as to where the information used by the Third Respondent had originated.
Her overall behaviour rating was a “C”. This gave her an overall performance rating of “UC”.
The result of such a rating was that Ms Baillie was then required to submit to a Performance Improvement Plan (“PIP”). Such a plan was still to be formulated.
Protected Industrial Action
In October and November 2013, the Queensland Nurses Union (“QNU”) engaged in protected industrial action. There was, at that time, an enterprise bargaining negotiation occurring and Ms Baillie was one of the nurses who were participating in both the EB negotiations and the industrial action.
The Deb Westerman Incident
On 21 October 2013, Ms Baillie claims to have had a conversation with Deb Westerman. She claims that Ms Westerman approached her and asked her what was wrong and Ms Baillie told her that she had been “failed” on her nursing appraisal and that one of the things that was mentioned was the conversation that she had with the Workplace, Health and Safety officer in the presence of Ms Westerman.
The next day, Ms Baillie was approached by the Second Respondent about her conversation with Deb Westerman. The Second Respondent had indicated she wanted to have an informal conversation but Ms Baillie insisted on having a union representative with her.
A meeting did take place between the Second and Third Respondents and Ms Baillie with the representative on 29 October 2013. In that meeting, it was ascertained that there was no formal complaint from Ms Westerman. Both the Second and Third Respondents contended that the union representative made the meeting quite unruly.
At the end of the meeting, the union representative handed a letter to the Third Respondent about the PDP process and accusing the First Respondent of undertaking an adverse action. The letter attempted to link the union activities of Ms Baillie with the outcomes of the PDP.
Ms Baillie then initiated a grievance proceeding concerning the unfavourable PDP. There was a meeting held in December 2013 where the Second Respondent reviewed the PDP document. Whilst the classification of “U” was unchanged, the classification of “C” was changed to “B” meaning an overall classification of “UB” was now substituted.
Ms Baillie, nevertheless, was still subject to the PIP.
Performance Improvement Plan (“PIP”)
The PIP meetings were conducted from 10 January 2014. They were to be conducted for a period of six months with the aim of improving both delivery service for customers and donors and behaviour consistent with the standards of the Blood Service. There was a written record kept of each of these meetings.
At this first meeting, there was an action plan agreed upon which particularised what matters were of concern to the First Respondent and what Ms Baillie would do to address those competencies. There were eleven items recorded that would be the “measure of improvement”. These were:
a)rebooking/conversion forms are completed as appropriate;
b)improvement in the centres YTD split rate from the current rate of 53% to 60%;
c)time to couch is reduced from the current time of 45 minutes to a maximum of 38 minutes;
d)attend a facilitator led course of the Blood Service excellence program;
e)positive feedback from the service excellence program facilitator on general participation and contribution;
f)conversations in front of donors remain donor focused and maintain focus on Blood Service goals, which result in a reduction of required discussions to address behaviour that does not reflect this;
g)consistent participation in team meetings and group discussions in a positive and constructive manner, which result in a reduction of required discussions to address negative feedback and contributions;
h)no negative feedback from team members regarding their interaction with Ms Baillie;
i)limited discussion is required to address negative contributions behaviour with constructive conversations taking place where Ms Baillie takes on board and reflects on feedback;
j)Ms Baillie to come to meetings with ideas on how there can be improvements in the operation of the centre; and
k)a noticeable reduction in negative language used when discussing activities related to the Blood Service.
The document notes that there would be regular review meetings held until the completion of the PIP. It is also noted that the achievement of the action plan will be reviewed at a meeting between the employee and the immediate manager. The date for that meeting is noted as 10 July 2014.
The document has a further notation that Ms Baillie has signed in these terms:
“I fully understand the discussions that have taken place and agree with identified areas for improvement including target dates. I understand that if I do not demonstrate a significant and sustained improvement in my performance, that this may lead to disciplinary action and/or a review of my ongoing employment with the Blood Service”.
The document has a further notation that Ms Fealy has signed in these terms:-
“The above matters have been discussed in detail and the specific areas of improvement have been agreed. I will ensure that the team member (Ms Baillie) receives the support and development to make these improvements by the specific date.”
Ms Baillie had another employee, Ms Donna Tuck, with her during the 10 January 2014 meeting. Ms Tuck acted as a support person for Ms Baillie. I note that Ms Tuck was also going through a PIP process herself at this time.
In February 2014, Ms Tuck left the employee of the First Respondent. Ms Baillie gave evidence that Ms Tuck was dismissed by the First Respondent. This was a distressing event for Ms Baillie. She testified that she had spoken to two other employees about her disquiet over the situation involving Ms Tuck.
For some reason that has not been explained, there had been no other PIP meetings since the initial one on 10 January 2014 for 10 weeks. Ms Baillie was then notified by e-mail that there would be a PIP meeting on 17 March 2014. Ms Fealy gave evidence that, during this intervening period between PIP meetings, she had been given feedback by other employees about Ms Baillie.
The 14 March 2014 Incident
On 14 March 2014, a significant incident occurred. The version of Ms Baillie is contained at paragraph 66 of her affidavit which reads as follows:
“66. On Friday 14 March 2014:
a) The Second Respondent and Third Respondent walked through the donor floor at 10.55am. The Third Respondent continued to walk through to the door leading to the back offices. The Second Respondent stopped in front of the packing bench away from donors, and was talking and laughing loudly with Alana Sarec who was standing at the Coulter (a blood counting machine).
b) I walked towards the Second Respondent and said to her, ‘Excuse me Rhiannon. I notice in the mail you sent, that Erin [Ferguson, Session Leader] is also invited to my PIP meeting on Monday. Will you both be there? Do I need to contact the QNU to have a support person with me as well?’
c) The Second respondent replied ‘I will speak to you later’.
d) I said, It’s Friday and the meeting’s on Monday, I’ll need time to contact someone (from the QNU).’
e) At this stage a platelet alarm from one of four machines sounded behind me. Such audible alarms are a common occurrence. They require a nurse to investigate and do not indicate a breach of donor safety. Alana Sarec and Julie Lancaster who are platelet trained nurses were in B Pod to attend to the donor and the alarm. I turned my attention to the alarm and the nurses on the donor floor that were closest to the alarm to see if they were responding. I thought then that if they were occupied , I would need to go and respond to the alarm. The alarm stopped. At the same moment the Second Respondent called out loudly, ‘Someone take over from Janet.’
f)The Coulter printout in my hand needed photocopying and to comply with my manager’s instruction, I handed the fully labelled piece of paper to the nurse who approached, Kim Tobias(Gladstone Session Leader) working at ESDC. Kim Tobias is not platelet trained but she put her hand out to take the piece of paper and the Second Respondent was satisfied.
g) The Second Respondent and I walked towards the photocopier at the back of the donor floor. The following conversation took place:
Me: Do I need to contact QNU to have someone with me on Monday?
The Second Respondent: I have a teleconference to attend and will speak to you later.
Me: Please just tell me yes or no.
The Second Respondent: No!
Me: Thank you.
h) Later:
The Second Respondent: Come over here, I’d live to have a word (motioning for me to leave B Pod).
Me: I can’t leave B Pod because I’m looking after these four people. I pointed to the plasma donors attached to machines. Alana will be back in a moment. (Alana returned and I joined the Second Respondent at the back of the room).
Me: I’m sorry about before. I knew you were busy but I just needed to know in business hours, whether I had to contact the Union for someone to come with me on Monday.
The Second Respondent: (smiling warmly) Oh, that’s alright. I understand why you asked if you needed a support person for the meeting because the meeting email I sent you also invited Erin. I came to see whether you’re ok. I was wondering, do you want to go home?
Me: No, not at all. I’m fine. We had a discussion. It’s sorted. Why would I want to go home?
The Second Respondent: I thought you were upset.
Me: I do feel worried about what possible problems unknown to me you might bring up at these meetings. Four colleagues have recently been to formal meetings, which makes us all anxious. I find the performance management process stressful, especially since Donna’s gone. She encouraged me about the performances process and I do feel adrift without her here.
The Second Respondent (smiling warmly again): Don’t you worry about what happens to other people Janet. You and I will just have a chat on Monday to see how you’re going.”
Ms Fealy’s version of the same event is contained at paragraphs 87 and 88 of her affidavit which reads as follows:
“87. On 14 March 2014, I was walking through the Edward Street donor floor with Ms McIlroy when Ms Baillie approached me. Ms Baillie stated she had noticed that Ms Ferguson had been invited to her next PIP discussion which was scheduled for 17 March 2014, and she asked me whether or not she would need a witness for the PIP discussion. I said to Ms Baillie that this was not an appropriate conversation for us to be having on the donor floor and that I would speak with her later. At that time, the alarm on the machine for the donor that Ms Baillie had been attending began to sound. Ms Bailie stood between me and the alarm for approximately five second and repeatedly looked between me and the alarm as though she was struggling whether to prioritise her conversation with me or her attendance to the donor. Ms Bailie was holding paperwork in her hand, which I assumed related to the donor, so I then intervened and said words to the effect of ‘Can someone take this [the paperwork] from Janet and go to that donor.’ (14 March Incident).
88. Another nurse, who I cannot recall, then took the paperwork from Ms Baillie and attended to the donor. Ms Baillie then continued to try and question me. I asked her to walk up to the back of the donor floor with me so that we could talk more privately. I said to Ms Baillie that it was not appropriate to be having a discussion about a PIP meeting in front of donors and that I was running late for a teleconference but that I would speak to her later. Ms Baillie then said to me ‘just tell me “yes” or “no”, in regard to the question of whether she needed a witness at the PIP meeting. I said ‘no’.”
Ms McIlroy’s version is that paragraph 78 of her affidavit which reads as follows:
“78. On 14 March 2014, I attended Edward Street. I recall that I was walking through the donor floor with Ms Fealy, but not directly alongside her, in the direction of the door that leads off the donor floor. At that point, I heard someone call out to Ms Fealy. I recall turning around and seeing Ms Baillie speaking to Ms Fealy in a loud manner and I walked closer towards the conversation. I recall that Ms Baillie was asking Ms Fealy whether she needed a witness for her PIP discussion. I stayed for a few minutes and observed that Ms Baillie was getting upset with Ms Fealy. I then turned back towards the door and left the donor floor for the meeting room, where Ms Fealy and I were scheduled to have a meeting.”
17 March 2014 and the Second PIP meeting
On this day, the ballot of nursing employees upon the proposed enterprise agreement closed. On that day also, Ms Baillie had a conversation with Anthea Wood who was an employee of the First Respondent visiting from Townsville. Ms Baillie said that she told Ms Wood that Ms Tuck had been “walked out” of the building halfway during an early shift and that she was crying. Ms Baillie said that everyone was shocked that Ms Tuck was being treated like this and that Ms Tuck was unfairly held accountable for everything that is not right in this place. She said to Ms Wood “it’s so wrong…”
Later that day the second PIP meeting occurred. The written record of the meeting is Annexure 21 to the affidavit of Ms Baillie. I will comment on the relevant parts of this document later in these Reasons.
It also records that Ms Fealy had noted that Ms Baillie was on annual leave from June until 6 July and therefore the final review meeting would be brought forward to accommodate this leave.
It is also noted that Ms Baillie said that she would like support from the Union.
Repercussions of the 14 March 2014 Incident
On 17 March 2014 and after the PIP meeting, Ms Baillie was given a letter headed “Ongoing Performance Concerns”. The letter detailed that a few matters had been brought to the attention of the First Respondent in relation to her performance which included but were not limited to:
a)alleged breach of donor safety when you walked away from a donor during the donation on Friday, 14 March 2014;
b)alleged breach of confidentiality when you were discussing personal information on the donor floor.
The letter invited her to a meeting that was to be held on 21 March 2014 and Ms Baillie was permitted to bring a support person. The meeting did not go ahead on that day because of an evacuation of the building. There was then some correspondence between the union and the First Respondent about these allegations but the meeting was rescheduled for 31 March 2014.
PIP meeting of 27 March 2014
The third PIP meeting occurred on this date. It was noted that regular review meetings would be held until the completion of the PIP and that the date of the next review meeting was going to be 2 April 2014 with the date of the final review meeting being 26 May 2014.
The written record of this meeting is Annexure 25 to the affidavit of Ms Baillie. I will refer to the relevant parts of this document later in these Reasons.
Meeting on 31 March 2014
This meeting was to do with the incident that occurred on 14 March 2014. There is some dispute as to what was said at this meeting however there is no dispute that Ms Baillie gave to the Second and Third Respondents her version of what had occurred in the form of a letter. This letter is Annexure 27 to the affidavit of Ms Baillie.
Also at this meeting, Ms Fealy gave to Ms Baillie redacted copies of three emails which were from other staff members concerned with the behaviour of Ms Baillie.
The meeting ended with an acknowledgement that there would be a follow-up meeting. A letter was then sent to Ms Baillie on 1 April 2014 inviting her to that follow-up meeting on 2 April 2014. The letter acknowledges that Ms Baillie can have a support person present. The meeting was subsequently postponed because the First Respondent was still deciding what the appropriate outcome should be.
Ms Baillie attended the meeting with a union representative, Mr Crank, only to be told that the meeting was postponed. Mr Crank apparently insisted on speaking to Ms Fealy. Mr Crank is not a small man and spoke to Ms Fealy in a very authoritative way. Ms Fealy gave evidence that she felt uncomfortable and said to Mr Crank that she should have someone else with her if she was to continue to talk to Mr Crank. At this point, Ms Baillie said “well now you know how I feel”. A discussion did take place.
PIP meeting of 8 April 2014
The record for this meeting is Annexure 33 to the affidavit of Ms Baillie. I will refer to the relevant parts of this document later in these Reasons.
On the same day as this PIP meeting, Ms Baillie was given the letter that rescheduled the 2 April meeting to 11 April.
11 April 2014 and the First Warning Letter
Ms Baillie attended the follow-up meeting on 11 April 2014 with Mr Crank. At that meeting Ms Fealy read out a letter to Ms Baillie which stated that she would be issued with a first warning. The letter appears at annexure 36 to the affidavit of Ms Baillie.
Relevantly, the letter contains the following:
“This letter constitutes a first formal disciplinary warning with regard to your conduct and performance as outlined above. You are reminded that your performance and conduct will continue to be monitored. Failure to comply with the Blood Service policies and procedures and the terms and conditions of your employment, as specified in your employment contract, may result in the issue of further written warnings or the termination of your employment”.
Mr Crank did threaten to take some form of industrial action, describing the activities of the First Respondent as adverse action. Ms Fealy refused to discuss the matter any further with Mr Crank.
Sometime later that day, Ms Baillie was on the donor floor. She was asked by Ms Fealy to leave and assist the interview process with arriving donors. Ms Baillie said that she would as soon as she had finished the particular task she was attending to with a donor. Ms Fealy asked how long that would take and there was a reply of 5 minutes at which time Ms Fealy left.
A visiting session leader from Melbourne, Jorja Gribble, was standing close by. Ms Baillie said to her “I’m on a PIP and I do want to do the right thing and interview but I have to finish the QC”.
PIP meeting of 15 April 2014
The record for this meeting is Annexure 37 to the affidavit of Ms Baillie. I will refer to the relevant parts of this document later in these Reasons.
PIP meeting of 28 April 2014
The record of this meeting is Annexure 39 to the affidavit of Ms Baillie and has a completely different tone to it. There is no evidence from either Ms Fealy or Ms Baillie as to any significant events between the last PIP meeting and this PIP meeting.
The record notes Ms Baillie saying “I’m committed to meeting the expectations of the performance improvement plan. I thank you for respecting the work I put in towards achieving excellence today.”
The record notes Ms Fealy saying “Janet and I had a much better conversation today I felt were able to work through the topics better than we have in the past. I was pleased to see Janet’s suggestion in regards to excellence and look forward to seeing some of the results and subsequent suggestions that result from it”.
The record notes a slight improvement on the platelet split rates and the time to couch has increased from 35 minutes to 38 minutes. There was a discussion as to why those wait times had increased by 3 minutes and Ms Baillie gave her reasons as to why this may have occurred. There was further discussion as to what Ms Baillie could do personally to help improve those wait times.
It was noted that there were no inappropriate conversations in front of donors and that Ms Baillie had said the last couple of weeks had been good.
With respect to “improving organisational capacity”, whilst there have been no further meetings since the last PIP meeting, Ms Baillie had suggested that she should speak to the group at the communications days for a few minutes as to what needs to occur. Ms Fealy agreed that this was a good idea and a good way for Ms Baillie to contribute to the meetings.
With respect to “collaboration”, there was no negative feedback to report and no discussions had been required to address negative feedback since last meeting. Ms Baillie said that it is great to have people from other centres coming to help and sharing ideas.
With respect to “excellence”, it was noted that there has been no negative language used when discussing activities related to the Blood Service. It was also noted that Ms Baillie had an idea of being responsible for the sharing and encouraging a “quote of the day” for the tea room which Ms Fealy thought was a lovely idea and something that the team would welcome.
It was noted that Ms Baillie had sent a suggestion via email as to a particular project that could be done to improve the service and the practicality of such an idea was discussed.
Letter of 1 May 2014
Three days after the last PIP meeting, a letter was sent to Ms Baillie which is Annexure 41 to her affidavit. The letter relevantly reads as follows:
“Since 17 March 2014 you have attended five (5) planned weekly Performance Improvement Plan (PIP) discussions. The aim of the PIP was to work with you in improving your participation, appropriate communication and engagement within the centre team. To date there has been no significant improvement recognised during this process.
Additionally you attended a formal discussion on the 31 March 2014 to discuss an inappropriate conversation that you initiated on the donor floor whilst breaching donor safety. The result of this formal meeting was that you were issued with a first formal disciplinary warning.
We now ask that you attend a meeting with management to discuss our ongoing concerns regarding your performance and conduct. The purpose of this meeting is to provide you with an opportunity to response(sic) to the Blood Service’s concerns. You are welcome to bring with you copies of any documents that you believe may help you to respond.
This meeting will be held in our Edward Street Donor Centre on Monday 5 May 2014 at 13:00pm hours (promptly). It is likely that myself, Rhiannon Fealy, Edward Street Donor Centre Manager and Lisa McIlroy, Donor Services Area Manager will conduct this meeting…”
Ms Baillie informed the union and the union had some correspondence with the First Respondent.
On the 2 May 2014, Ms Baillie sent to Ms Fealy a summary of a staff survey question. Ms Baillie noted that this could be the basis of discussion regarding best practice suggestions in the PIP meetings.
Meeting of 5 May
Ms Baillie attended this formal meeting with Mr Crank and with the Second and Third Respondents. All of the participants note that Mr Crank was somewhat zealous in his representation of Ms Baillie. Ms Baillie gave evidence that she was asked how she was demonstrating that she was meeting the requirements of her PIP and that the Third Respondent said that “we have concerns regarding any significant improvement in (your) performance and conduct resulting from (your) participation in the PIP process”.
Ms Baillie said that she replied “I don’t understand. At the last PIP meeting we had, you documented we had a better discussion. I’m doing projects like you wanted me to”. Notwithstanding this observation by Ms Baillie, the Second and Third Respondents gave evidence that they had kept asking Ms Baillie how she thought that she had improved. Both the Second and Third Respondents say that they made notes of the meeting. My perusal of those notes illustrates that both the Second and Third Respondents were more concerned with the behaviour of Mr Crank at that meeting.
Subsequent Occurrences
On the evidence before me, there was nothing of any consequence that occurred after this meeting. In other words, there was no evidence from any of the Respondents that the behaviour of Ms Baillie was anything other than appropriate and proper.
On 22 May 2014, the Applicant was handed a letter, which relevantly read:
“Follow up Meeting – Performance and conduct concerns as discussed on Monday 5 May 2014.
You are required to attend a follow up meeting at the Edward Street Donor Centre with Rhiannon Fealy, Edward Street Donor Centre Manager and Lisa McIlroy, Donor Services Area Manager on Thursday 29 May 2014 at 9.00am (promptly).
During this meeting you will be advised of the outcome of the Blood Service’s investigation which may include disciplinary action.”
The letter also explained that Ms Baillie could have a support person present for the follow-up meeting. The date of the follow-up meeting was the day before Ms Baillie was due to commence 5 weeks annual leave.
There was no PIP meeting after 28 April, notwithstanding that the final PIP meeting had been scheduled for 26 May 2014. In fact, the final PIP meeting did not occur. Ms Baillie gave evidence that she was ill on 29 May 2014 and did not attend work that day.
On 30 May 2014, Ms Baillie was sent a letter which read as follows:
“Dear Janet,
As you failed to attend your scheduled outcome discussion on Thursday 29 May 2014 at the Edward Street Donor Centre and as you will now be absent on annual leave for five (5) weeks, we enclose the written outcome notice identifying the second and final disciplinary warning relating to your ongoing performance and conduct matters.
Should you wish to reply to this second and final disciplinary warning please do so at your earliest convenience…”
Enclosed with that letter was another letter dated 29 May 2014 that read as follows:
“This letter is provided to you as a written confirmation of outcomes from a meeting held on Monday 5 May 2014 between yourself, Rhiannon Fealy (Edward Street Donor Centre Manager) and Lisa McIlroy (Donor Services Area Manager) in relation to serious concerns held by the Blood Service regarding no significant improvement in your performance and conduct resulting from your participation in an existing Performance Improvement Plan (PIP) process. Mr Kevin Crank, QNU Industrial Officer, was present at the meeting as your support person and industrial advocate.
During this meeting, you were provided with an opportunity to respond to the matters raised surrounding your performance and conduct, that:
On the 20 January 2014 (sic) a discussion relating to the commencement of a PIP occurred. Since that discussion you have participated in an additional five (5) PIP discussions leading to no significant improvement in your performance and conduct. The aim of the PIP process is to work with you in improving your participation, appropriate communication levels and engagement within the Centre team.
In addition you attended a formal discussion on the 31 March 2014 to discuss an inappropriate conversation that you initiated on the donor floor leading you to be distracted from attending a donor, in doing so potentially placing the donor at risk through breaching donor safety. The result of this formal meeting was that you were issued with a first formal disciplinary warning.
On the 15 April 2014 in a PIP discussion, I raised concerns with you, regarding your level of engagement and participation in the PIP process. Additionally, during this discussion your commitment to the PIP process was also discussed as it is felt that you are not using the feedback given to you to improve your level of engagement and participation within the Centre.
During an April 2014 PIP regular catch up; I raised with you and incident that had occurred in the week of 7 April 2014, whereby you had a conversation with a Session Leader on the donor floor relating to your PIP process. This conversation took place in front of a donor. You were advised that this type of behaviour is unacceptable and needs to be improved immediately.
During our discussion on 5 May 2014, I raised concerns with you regarding no significant improvement being demonstrated out of the PIP process in team participation, communicating appropriately at all times and increased levels of engagement within the Centre team.
I do not believe you are genuinely trying to address the issues raised in your PIP based on your continuing inappropriate behaviour. Additionally you could not provide any supporting evidence to demonstrate that you have achieved significant improvement in the areas discussed.
Consequently, following a full investigation of the facts and careful consideration of any response you gave to our concerns, the Blood Service has determined you have breached the terms and conditions of your employment, as specified in your employment contract and our policies and procedures. The Blood Services considers this to be unacceptable.
This letter constituted a second and final formal disciplinary warning with regard to your conduct and performance as outlined above. You are reminded that your performance and conduct will continue to be monitored. Failure to comply with Company Policies and Procedures and the terms and conditions of your employment, as specified in your employment contract, is likely to result in the termination of your employment…”
Ms Baillie returned to work on Monday, 7 July 2014. Later that day, the Applicant filed an application in the Fair Work Commission. It was an application for the commission to deal with a dispute in accordance with the dispute settlement procedure.
On 30 July 2014, Ms Baillie was given a letter which detailed that the next PDP process was about to begin. Ms Baillie gave evidence that she made a decision to resign in August 2014. On 7 August, Ms Baillie wrote the following letter to the Second Respondent. It relevantly reads as follows:
“Dear Ms Fealy
I am resigning from my Registered Nurse position with the Australian Red Cross Blood Service. This is entirely due to adverse action repeatedly taken against me behind closed doors, since 11th October 2013 with unsubstantiated allegations resulting in first and second and final formal warning for failing to meet nebulous performance management requirements. My health has suffered from this intimidating management style.
Up until the past ten months I enjoyed my job and had no fear of false claims regarding the quality of my work. I love the privilege of contributing to the worthy core business of the Blood Service where I had planned to work until retirement. Transparency disregarded, I have been wronged and cheated of continuing in my role providing nursing care to whole blood and apheresis donors. My last day of employment with the Blood Service will be Friday 22nd August 2014.
For the supportive and enjoyable working environment I valued for many years, my gratitude goes to generous donors and to my unfailingly kind, hardworking and caring colleagues at Edward Street. I wish everyone all the very best.”
Ms Baillie was certified unfit for work between 6 and 17 August 2014. She finished work at the Blood Service on 22 August 2014. In evidence before me, Ms Baillie said that she began working as a nurse for the Mater Hospital on 25 August 2014. She said that the position had comparable conditions and the same rate of pay as the job she had with the Blood Service. She honestly admitted that she did not resign from the Blood Service until she knew she had been successful in her application for the position at the Mater Hospital. She also candidly said “if I hadn’t gotten the job, I may have gone back to the Blood Service”.
Claims of the Applicant
The statement of claim is wide ranging. In short, it claims that every action of the Respondents, from October 2013 until the resignation in August 2014, constitutes an adverse action.
I found the pleadings of the Applicant to be vague and lacking in particularity; it is as if the Applicant is relying upon a Dennis Denuto-like “vibe” as to the behaviour of the Respondents. Nevertheless, I have been able to discern discrete areas of the claim.
Was Ms Baillie dismissed?
Mr Reed of Counsel submitted that:
“The termination of Ms Baillie’s employment with the First Respondent came as a result of Ms Baillie’s will having been broken down and her consequent inability to suffer the continuing allegations of inappropriate behaviour and the disciplinary actions by the First Respondent through the 2nd and 3rd Respondents. In the circumstances, the termination of Ms Baillie’s employment constituted a dismissal and thereby adverse action within the meaning of section 342 of the FW Act because Ms Baillie was forced to resign because of a course of conduct engaged in by the First Respondent and that the resignation constituted an acceptance of repudiatory conduct by the First Respondent and thereby constituted a constructive dismissal”.
Section 386(1)(b) of the FW Act relevantly provides that:
“386 Meaning of dismissed
(1) A person has been dismissed if:
…
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
Alternatively, Mr Reed submits that the course of conduct engaged in by the three respondents was persistent and unwarranted and amounted to workplace bullying. He submits that in those circumstances the First Respondent was in breach of its contractual duty to provide a safe place of work to Ms Baillie. He submits that in not providing such a safe place of work, the First Respondent has repudiated its obligations under the contract of employment which Ms Baillie has accepted. He submits that her election to terminate the employment contract in those circumstances constitutes a constructive dismissal.
I have some trouble with these arguments. The resignation must come about because there is no other choice to do anything else but resign before these arguments can be further considered. The unequivocal evidence from Ms Baillie was that she did not resign until she had procured another job. She also said that if she did not obtain that other job, she would have returned to work with the First Respondent.
The job at the Mater Hospital was a job that had similar conditions and similar pay to the present job.
In those circumstances, it is difficult, if not impossible, to show that s.386(1)(b) of the FW Act applies. It is also difficult, if not impossible, to show that Ms Baillie has elected to terminate the employment contract only because there has been a repudiation of the contract by the First Respondent.
I find that Ms Baillie was not dismissed. In those circumstances I dismiss the parts of her claim that seek reparation from a dismissal.
Adverse Action
Ms Baillie claims that she has suffered adverse action because she has exercised a workplace right. Section 342 of the FW Act describes “adverse action”.
In this case, adverse action is taken by an employer against an employee if the employer alters the position of the employee to the employee’s prejudice.
Ms Baillie claims that the reason that the Respondents have treated her in the way they have is because she:
a)exercised her workplace right to take protected industrial action by:
i)by participating in a ban on wearing uniform in or around October and November 2013;
ii)distributing and displaying campaign material in or around October and November 2013; and
iii)participating in a ban on the performance of work on 30 October 2013 and 22 November 2013(Stop Work Action); or
b)Engaged in industrial activity within the meaning of s.347(b) of the FW Act by:
i)Organising, promoting and signing the Saline Petition in October 2012;
ii)Making representations to nurses employed by the First Respondent in the tea room and elsewhere concerning issues between the Applicant and the First Respondent in the negotiation for what became the Australia Red Cross Blood Service Queensland Nursing Enterprise Agreement 2014(Proposed Agreement) in April and May 2013 (April/May 2013 Proposed Agreement Representations);
iii)Making representations to nurses employed by the First Respondent about inadequate staffing levels, problems with the donor appointments system and inadequate nurse/donor ratio (2013 General Representations); and
iv)Organising, promoting, participating in and encouraging other employees of the First Respondent to participate in the Protected Action; or
c)Exercising her workplace right to make a complaint or inquiry in relation to her employment by lodging a grievance on 25 November 2013 under the enterprise agreement which at the time applied to her employment regarding the rating she was given for her annual performance review for the financial year ending 30 June 2013 (2013 PDP).
There is another aspect to the claim made by Ms Baillie that she was exercising a workplace right. This particular aspect was not specifically pleaded but was well and truly part of the evidence and narrative. This aspect is the action by Ms Baillie to involve a representative of the Applicant, namely Mr Crank, in formal discussions with the Second Respondent and the Third Respondent.
As Ms Baillie has claimed that she was subjected to adverse action, s.361 of the FW Act presumes that the action was taken for the reason that Ms Baillie exercised a workplace right unless the First Respondent can prove otherwise.
There have been many instances of adverse action taken against Ms Baillie. The question I have to answer is whether the First Respondent has discharged its onus in proving to me that the action that it took was not because Ms Baillie exercised a workplace right.
Was the result of the 11 October 2013 PDP meeting Adverse Action?
When looking at the chronology, it seems that all of the problems faced by Ms Baillie originated from the outcome of this particular meeting. The outcome certainly altered the position of Ms Baillie to her prejudice.
Ms Baillie points to the fact that she had never had such a poor assessment before this date. She points to the activities she had been conducting for the union at about that time. Her submission is that this timing is more than coincidental.
It is not for Ms Baillie to prove that the adverse action occurred for the impermissible reason; rather it is for the Respondents to prove that it did not. The Respondents point to the inefficiencies that had been present at the ESDC for some time.
I accept that there were complaints from donors about the time that it was taking for them to complete their donations. I accept that the processes could have been quicker than it was without compromising donor safety. I accept that the First Respondent knew that there had to be a change of culture at ESDC for the efficiencies to be achieved.
This is reflected in the very telling statistic that, of the 40 employees at ESDC, 22 of them received a rating of unsatisfactory. Such a figure illustrates what the First Respondent submitted was a problem at ESDC.
I also accept, having seen Ms Baillie in the witness box, that she is a person who is somewhat resistant to change. Her philosophy seems to be “if it ain’t broke, don’t fix it”. The problem is that she could not see that the process at ESDC was “broken”.
Whilst some may look at the rating of “UC” as being harsh or hard, I am persuaded that such a rating came about because of the honest opinions of the Third Respondent. I do not accept that there was any impermissible reason behind that rating.
Therefore, in relation to this aspect, I am not persuaded that there has been any breach of the FW Act.
Was the decision to put Ms Baillie on a PIP, Adverse Action?
The result of the unsatisfactory performance review was that Ms Baillie was put on a PIP. Having to undergo a PIP did alter the position of Ms Baillie to the prejudice of Ms Baillie.
The purpose of a PIP was to improve Ms Baillie’s performance, both in efficiencies at the centre and her behaviour in the workplace. The evidence is that there was a broad agreement as to the eleven factors described in paragraph 33 above, though I accept that the Second Respondent was largely responsible for setting these categories.
This meant that Ms Baillie had to attend semiregular meetings and discuss matters with the Second Respondent that revolved around the eleven categories. I accept that Ms Baillie did feel that these PIP meetings were demeaning. I accept that Ms Baillie was deflated about having to participate in these meetings.
At the end of the process, there would be a general assessment as to how Ms Baillie had performed before any true decision as to her future would be made by the First Respondent.
The evidence of the Second Respondent (and the Third Respondent) was that this process was actually designed so as to improve the performance of Ms Baillie. It was not an ongoing process and there was a definite “end date” to the process. On the evidence, this date was 26 May 2014.
I accept the evidence of the Second and Third Respondents that the PIP process was a natural corollary from the PDP process. I do not find that there was any prohibited reason behind Ms Baillie being subject to a PIP.
Therefore, in relation to this aspect, I am not persuaded there has been any breach of the FW Act.
The First Warning letter
The decision by Ms Thompson to send the first warning letter did alter the position of Ms Baillie to her prejudice. The evidence from Mrs Thompson was that she was the person who authorised that Ms Baillie receive a “first warning”. She said that having made that decision, it was for others to draft, sign and send the letter.
Ms Baillie contends that she was given this warning because of a prohibited reason. The Respondents gave evidence that the reason for the decision was solely because of the actions of Ms Baillie surrounding the incident on 14 March 2014.
Even though there were two parts to the impugned conduct of Ms Baillie, it was the combination of those two pieces of behaviour that justified the sanction according to Ms Thompson. I accept that this is so.
What is not contradicted is that Ms Baillie deliberately left the area where she was with a donor, to approach the Second Respondent. There was no need for Ms Baillie to do so then and there. The issue with which she wanted to speak to the Second Respondent was not an issue that needed to be dealt with there and then.
As a result of this choice, when the alarm sounded from the donor to whom she had been tending, she was not in a position to respond to that alarm. This is a matter that could not be simply ignored by the First Respondent.
When the reason for the approach to the Second Respondent is taken into account, it compounds the action of Ms Baillie.
A plan of the area was tendered in evidence as Exhibit 2. The evidence from the witnesses was that Ms Baillie had only moved between two and three metres before she reached the Second Respondent and spoke. I consider that this would be in earshot of the donors.
To be asking about the need for support people or union representatives at a PIP is an inappropriate subject to be discussing on the donor floor. Such impropriety should have been well and truly realised by Ms Baillie.
I have read the statement made by Ms Baillie and given to the Second and Third Respondents on 31 March 2014. I do note that Ms Thompson said that she had not seen that statement. Nevertheless, there is nothing in that statement that I could see that would have altered the decision that a sanction must be given.
Ms Thompson testified that she made her decision based upon what she had been told. The decision she made reflects the seriousness of the incident.
I accept the evidence of Ms Thompson and I do not find that the decision to issue a “first warning” was made for any prohibited reason.
Therefore, on this aspect of the claim, I am not persuaded there has been any breach of the FW act.
The Second Warning Letter
Of all the actions committed by the First Respondent, in my view, the second warning letter was the action that altered the position of Ms Baillie to the greatest prejudice. The facts of what led up to this warning are somewhat concerning.
The warning came about because the First Respondent did not accept that there was any improvement coming out of the PIP process. The letter contains the following paragraph:
“I do not believe you are genuinely trying to address the issues raised in your PIP based on your continuing inappropriate behaviour. Additionally you could not provide any supporting evidence to demonstrate that you have achieved significant improvement in the areas discussed.”
The letter goes on to further claim that the First Respondent:
“Has determined you have breached the terms and conditions of your employment, as specified in your employment contract and our policies and procedures”.
I do note that in this letter there are no particulars as to what terms and conditions of the employment were breached and what behaviour actually breached those conditions.
The claim is made that there was no genuine attempt by Ms Baillie to address the issues raised in the PIP. Further, it is claimed that Ms Baillie behaved in a continuing inappropriate way. Ms Baillie denies that either of these claims have any basis in fact.
When there is a dispute of this kind, the easiest way for an arbiter of fact to decide the case is to look at the supporting or collateral material. In this case, such material is the PIP documents themselves.
The PIP documents and what they reveal
The first PIP document of 10 January 2014 really sets up the parameters of how this process is going to work. It set out the eleven categories of which the First Respondent wished to see an improvement.
Curiously, for such an important procedure that was noted would need regular meetings, there was no subsequent meeting until 17 March 2014. That is a period of approximately 10 weeks. There was no explanation given as to why there was no such meeting if it were the true purposes of the First Respondent to have Ms Baillie improve her performance.
Such a delay in these meetings was most probably a catalyst for the anxiety that Ms Baillie had towards the meeting. This may explain her behaviour during the incident of 14 March 2014, but it does not excuse the behaviour.
Nevertheless, the meeting of 17 March 2014 set an end date for this PIP process of 26 May 2014. During this meeting, the Second Respondent told Ms Baillie about a number of reports that she had been given. None of these issues were raised with Ms Baillie at the time that they were made known to the Second Respondent, but rather saved up and spoken about during this particular PIP.
Whilst there were many concerns of the Respondents put to Ms Baillie during this meeting, they also formed part of the material given to Ms Baillie in the formal meeting of 31 March 2014. Therefore, it seems to me that all the behavioural issues that were raised during the PIP of 17 March 2014 were dealt with in the “disciplinary” meeting of 31 March 2014.
The result of that disciplinary meeting was the first warning. Whether Ms Baillie agreed with the decision or not, those issues were ventilated and a sanction was given. That was the end of those matters.
The PIP meeting of 27 March 2014, discloses that the Second Respondent spoke to Ms Baillie about the inappropriate conversations that she had with Ms Wood about Donna Tuck. There was also a problem with the way in which Ms Baillie contributed to team meetings and that she needed to be positive.
The next PIP meeting was on 8 April 2014. In this meeting, another example of inappropriate conversations taking place was detailed. This was the “off the cuff” remark that Ms Baillie made when the Second Respondent seemed uncomfortable with Mr Crank and caused the Second Respondent to question aloud whether she should have someone else with her.
Apart from this matter, the only other aspect of the negative feedback was that Ms Baillie was not coming up with any ideas as to how to improve the service. There was positive feedback about her contribution during communication day and her contribution on development day.
The next PIP meeting was on 15 April 2014 where there was a comment made by the Second Respondent that she did not feel that there was any progress being made in these meetings. The specific negative feedback was about the conversation with Jorja Gribble. There was also a notation that Ms Baillie had still not presented any original ideas.
The PIP of 28 April 2014 stands in sharp contrast with those earlier matters. All of the behavioural matters seem to have improved. There was no negative feedback at all. There was no negative language used when discussing activities related to the Blood Service. There were no inappropriate conversations on the donor floor. Ms Baillie had actually been contributing ideas.
Tellingly, the Second Respondent noted that she felt that she and Ms Baillie were able to work through the topics better than they had in the past and that she was looking forward to seeing some of the results from the suggestions that Ms Baillie had made.
There is obvious improvement noted in this PIP. The process was not due to end until 26 May 2014. If the improvement noted on 28 April were to continue, one could envisage a successful conclusion to the PIP process.
Yet a mere 3 days later, the First Respondent gave Ms Baillie a letter stating that there had been no significant improvement recognised during the PIP process. This letter and the PIP document of 28 April are in total contradiction of each other.
The Reasons of Ms Thompson
Ms Thompson gave evidence that she was the sole decision maker as to whether Ms Baillie was to receive any sanction. She gave evidence that she acted upon information she was given from the Third Respondent as well as from the HR officer, Ms Rodgers.
Ms Thompson said that the information was that Ms Baillie refused to accept the feedback from the PIP, that there was no indication of a willingness to improve on the part of Ms Baillie, and that Ms Baillie did not accept the “integrity” of the process. Upon that information, she came to the decision that the appropriate sanction for Ms Baillie was a second and final warning.
The information from Ms Rodgers seems to be solely the contents of an email sent on Thursday, 17 April 2014. The email reads as follows:
“Hi All
I was just after your thoughts around moving forward with Janet Baillie.
Janet was given a UC rating in her PDP, which was subsequently reviewed to a UB in December 2013. She was placed on a PIP on 10/01/2014. PIP review discussions have taken place on 20.01.2014, 17.03.2014, 20.03.2014, 26.03.2014, 08.04.2014 and 15.04.2014. Her final review meeting is due to take place on 26.05.2014. Janet received a first written disciplinary warning on 11 April 2014 for breaching confidentiality, breaching donor safety and inappropriate behaviour.
To date there has been no improvement noted in Janet’s behaviour and the DCM has a number of accounts from employees around Janet’s inappropriate behaviour. These accounts have been put to Janet and she denies them. Janet does not engage with the PIP process and has not implemented any strategies to improve her behaviour. It is Janet’s belief that the issues being discussed with her in the PIP review meetings are a fabrication and are not actually occurring. Janet has said she finds the process berating and feels that the DCM is not respectful or her clinical knowledge. I have obtained copies of the notes taken from the review discussions which have been signed and dated by both the DCM and Janet and my opinion is that everything that has been put to Janet around her inappropriate behaviour is justified and there are documented accounts that have been sent to the DCM from other staff members.
I do not believe that Janet is taking this process seriously and do not believe that she is engaged with it. My recommendation is that the PIP process needs to be progressed to a formal process whereby Janet is asked to show cause. The DCM is of the opinion that she has done everything in her capability to support Janet through this process and give her every opportunity to improve but Janet has not availed herself of this.
The DCM is out of the office until Monday 28 April 2014, but I believe that we need to action this situation upon the DCM’s return…”
That email was written before the PIP of 28 April. There is no evidence that anything was done between 17 April and 28 April regarding the situation with Ms Baillie. The email refers to putting in place a formal process after the Second Respondent returns on 28 April.
What is concerning is that the decision to proceed in this way did not take into account the results of the PIP meeting of 28 April 2014. The email suggests that the First Respondent is looking for improvement and yet such improvement is illustrated at that meeting. But for some reason the outcomes of that meeting were ignored.
Ms Thompson gave evidence that she was not told of the meeting of 28 April 2014. Neither was the senior HR manager, Mr Bosse. Both of those witnesses gave evidence that if they had seen those PIP notations, it would at least have given them some pause before making the final decision.
Therefore, it seems to me that Ms Thompson made her decision based upon incomplete information. If she had been given the information about the 28 April PIP meeting, the outcome may have been different.
The question then is “why was Ms Thompson not given that information?”
The Actions of the Second and Third Respondent
It seems to me that the only persons who took any account of what happened on 28 April were the Second and Third Respondents. When one goes through the exercise of reading through all of the PIP documents, one cannot help but come to the conclusion that there was improvement in Ms Baillie, especially in terms of behaviour.
The PIP process was supposed to continue for another month. There is no real explanation as to why this process was brought to an abrupt end especially in light of what had occurred on 28 April.
While the process that Ms Rodgers envisaged on 17 April 2014 had already begun, I am of the view that it was incumbent upon the Second and Third Respondents to ensure that the contents of 28 April PIP were part of the factual matrix that was to be considered in making a final decision.
On the evidence before me, it seems that the Second and Third Respondents chose to keep that information to themselves. This seems incongruous with their duty to the First Respondent to ensure that any employee under a PIP is given all the support and opportunity to improve their performance.
The behaviour of the Second and Third Respondents was absolutely abhorrent. They knew that they were affecting the life of a person by choosing to ignore the evidence in front of them. The attempts by both of them to justify what they did, in evidence before me, can only be described as risible.
It is obvious that “the die was cast” after the email of Ms Rodgers on 17 April. Questioned by me, the Third Respondent gave the following evidence at page 69 of the transcript of 29 August 2016:
“In fact, if I were reading this as a document, I would say, “You beauty. We’re making some progress”, and yet, you know, what you’ve done seems to be so totally contra-indicated from this particular PIP. I’m having real trouble, sort of, trying to work out what has actually happened here? -I can only tell you what decision we made at the time based on the information that we had.
But this is the information that you have? -I understand.
So if you’re making the decision based on the information that you have, it just seems an absurd decision, doesn’t it? - I think the decision that we made at the time was that – and we made – we did make the decision following the 15th of the 4th PIP that there was not significant improvement because there had been still some incidences in relation to behaviour and the PIP process itself.
Well, then why go ahead with the 28th? If you’ve already made the decision, I think this is just then a farce, isn’t it? 28 April is a farce. It’s a waste of everyone’s time because you’ve already made your mind up and there’s nothing, then, that this woman could do to change your mind? - I don’t believe our mind was made up.
Well, then, why did you just tell me that you did? - Well, we had the discussion following the 15th of the 4th PIP.
Yes. So you would say your mind isn’t made up. We get to the 28th where there is absolutely nothing negative at all, but that still hasn’t changed your mind. (Long pause) No response Okay. I suppose that’s rhetorical, isn’t it?
And later, at page 74, The Third Respondent said this in evidence in answer to my questions:
“When we just looked at the last of the PIPs, 28 April, there had been significant improvement. There were no negative remarks there whatsoever. That would have to be significant improvement, wouldn’t it? - We didn’t believe it was.
I’m trying to figure out what this woman could have done to have improved herself in your eyes, considering that in the time between the 15th and the 28th she has done everything that she was supposed to do because you haven’t said to her at all there was anything that she has done or that she should have done that she didn’t do. I just am trying to figure out how you could say that that statement was correct? - We believed at the time that she had not made significant improvement. That’s – when we went through the PIPs that’s what we believed. That’s what….
So you – you believe that, even though you’ve gone – you’ve gone through those five PIPs again, and you’ve especially looked at that last one, and you still came to the conclusion that there was no significant improvement in her performance? - Yes, your Honour, we did.”
I cannot accept this evidence because it is totally illogical. The illogicality borders on dishonesty. I am not sure whether the Third Respondent was being dishonest to the Court or dishonest to herself, but whatever the case, it is perfectly illustrative of the actions of the Third Respondent, as well as the Second Respondent.
There is also no explanation as to why there is no reference to the eleven factors (listed in paragraph 33 above) by the Second and Third Respondents when assessing what has occurred during the PIP process. One would think that in an honest appraisal of what Ms Baillie has achieved (or not achieved) during the PIP process, there would have to be reference to those eleven factors.
There is no report on the matter from the Second or Third Respondents. There is no formal assessment of the PIP process. There is no memorandum or summary of what has or hasn’t been achieved in the PIP process.
The PIP process was not allowed to reach its conclusion. What was envisaged to occur at the first PIP on 10 January 2014 did not occur. There was no particularity given to Ms Baillie as to where it was that she was failing in the PIP process.
It is difficult to resist the conclusion that the PIP process was not carried out in the manner in which it ought to be carried out. There has been no explanation as to why this has occurred.
Factual conclusion as to the Second Warning
I have concluded that Ms Thompson has made a decision to alter the position of Ms Baillie to the prejudice of Ms Baillie for the reason that she honestly believed that Ms Baillie was making no effort to improve her performance during the PIP process.
I have concluded that Ms Thompson did not make that decision for any prohibited reason.
I have concluded that the Second Respondent and the Third Respondent deliberately withheld the information as to the performance of Ms Baillie during the 28 April PIP. I have concluded that if the Second Respondent and the Third Respondent had informed Ms Rodgers, Mr Bosse, Ms Anderson or Ms Thompson about the 28 April PIP, there could have been no justification for the sanction that followed.
The Law in this Area
I have had regard to a number of authorities that were cited to me by both counsel.
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 French CJ and Crennan J spoke of the central question as being “why was the adverse action taken?” and at [45]
“This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer23. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker24 or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.”
The principles in Barclay were summarised, as follows, by the Full Court of the Federal Court of Australia in Victoria (Offıce of Public Prosecutions) v Grant (2014) 246 IR 441 at [32]:
“The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
That question is to be answered having regard to all the facts established in the proceeding.
The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”
Even if the decision-maker gives evidence that he or she acted solely for non proscribed reasons, other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.”
The decision in Barclay (Supra) and Grant (Supra) make it clear that the focus of the inquiry is on the reasons the sole decision-maker had for her or his decision.
However in National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451, a range of parties were involved in the decision making process.
The Court determined that the Royal Melbourne Institute of Technology had failed to prove that the decision to terminate Professor Bessant was solely due to redundancy, and the Court accepted the argument put by the NTEU that the reason for her termination was an adverse action as a result of Professor Bessant exercising a workplace right.
Professor Gardner was the primary decision maker, and her evidence did not demonstrate that the decision was unrelated to Professor Bessant's exercise, or proposed exercise, of her workplace rights. The court did not accept that Professor Gardner was the sole decision maker as Professor de la Harpe and Ms Gough made decisions that were an essential part of the process leading to the ultimate decision to make Professor Bessant redundant. However neither Professor de la Harpe nor Ms Gough were called as witnesses. As they weren’t called, the employer failed to discharge the onus.
In Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251 a decision of the employer was deemed as being tainted by multiple decision makers when an employee was removed under a redundancy process
Kodak had adopted a redundancy process whereby two supervisors, Mr Lay and Mr Shannon, assessed Mr Elliott for redundancy by reference to certain criteria. A third person, Mr Walshe, the General Manager of Kodak, then made the ultimate decision to terminate Mr Elliott’s employment. The Court held that, if the assessment made by either Mr Lay or Mr Shannon was influenced by a prohibited reason, that would have impugned the decision of Mr Walsh even though it was not disclosed to him. The reasoning for this conclusion was as follows:
“[37] The first difficulty with this argument is that Lay made an indispensable contribution to the rankings. He and Shannon co-operated in a joint assessment, with each giving an account of what influenced them individually. If it were the fact that Lay was influenced in giving a low mark by a prohibited reason, it can be assumed that if the ranking were done without having regard to that prohibited reason, it is likely that a different ranking would have been given by Lay. This, inevitably, would have affected the ranking process, whatever the views of Shannon. It would have been a different assessment process. Furthermore, whatever debate there might be about the extent of Walshe’s power or involvement in the decision, his evidence was that he took the Lay/Shannon assessment and worked from there. It follows that if the Lay/Shannon assessment is affected (or infected) by either Lay or Shannon having held an undisclosed prohibited reason, then he would have, in effect, inadvertently adopted it so that its force continued regardless of the lack of any express prohibited reason in the mind of Walshe.”
CFMEU v Clermont Coal (2015) 253 IR 166 considered both Kodak (Supra) and Royal Melbourne Institute (Supra). In this case, Mr Pretorius relied heavily on the results of a selection process where the employees concerned were assessed for their skills and attitudes, and then ranked accordingly. Importantly, Mr Pretorius said in evidence that he could not have made his ultimate decision without reference to Ms Washington’s ranking spreadsheet and the assessment scores upon which it was based.
However the creator of the spreadsheet was impacted by his difficult relationship with the employee, from his dealings with him as a CFMEU executive member. In that state of mind, Mr Washington allowed one or more of the prohibited reasons to affect his reasoning process. As his reasoning process had a material effect on the decision to dismiss the employee, the Respondent did not discharge its onus under s.361 of the FW Act to show that one or more of the alleged particular reasons were not a substantial and operative reason for the adverse action.
The Court considered the judgement in Barclay (Supra), noting that the employer only needs to show that none of those reasons were a “substantial and operative reason”. It does not need to negate every reason, however immaterial it was to the reasoning process underpinning the decision to dismiss the employee concerned. However when a decision is made by one person and her or his reasoning for the decision was based on one incident involving the employee, the task is relatively straightforward. Due to the complexity of multiple parties being involved in the decision in CFMEU v Clermont Coal (Supra), the judgement of Kodak (Supra) was considered. At paragraph [121] the Court examined the reasoning process employed by each person whose involvement had a material effect on the ultimate decision:
“[121] On the other hand, where the reasoning process is dispersed through an assessment process involving a number of persons, the task is much more complicated. In that situation, I consider the judgment in Kodak requires me to examine the reasoning process employed by each person whose involvement had a material effect on the ultimate decision. This inquiry does not involve a roving search of the minds of the employees of the kind rejected by Heydon J in Barclay (at [146]). Nor does it involve an objective inquiry of the kind rejected in Barclay (at [44] and [126]), nor import some “unconscious” reasoning to the ultimate decision-maker that was also rejected in Barclay (at [124] per Gummow and Hayne JJ, and [146] per Heydon J). Instead, it focuses on the conscious reasoning processes of those who had a material effect on the ultimate outcome to determine whether their reasoning processes were free of the alleged prohibited reason or reasons. If one or more of the reasons employed by one or more of them was a prohibited reason, that will impugn the ultimate decision. This is what I consider the Full Court meant by “inadvertently” adopting an “undisclosed prohibited reason” in Kodak.
[122] I therefore consider the focus and scope of the inquiry in this matter should proceed in two parts. First, an inquiry to ascertain whose reasons had a material effect on the reasoning process that preceded Mr Pretorius’ ultimate decision to dismiss Mr Scott. And, secondly, an inquiry to examine the reasoning employed by those persons to ascertain whether it was affected by a prohibited reason or, to put it in the terms of s 360 of the FW Act, whether Clermont Coal has established to the requisite standard that none of the alleged “particular reasons” was a substantial and operative reason for the decision to dismiss Mr Scott”
At [195], Justice Reeves makes the conclusion that:-
“[195] This does not mean that s 361 of the FWA will inevitably apply to protect a union activist like Mr Scott from adverse action. This very point was made by French CJ and Kiefel J in BHP Coal at [20], and French CJ and Crennan J in Barclay at [60]-[62]. However, it does mean that, where an employee’s attitude is a central part of an assessment as to whether he will be subjected to such adverse action and that employee is a union activist, it will be necessary to carefully examine the reasoning process of the person making the assessment to ensure that it is made for a reason associated with his performance as an employee, or more generally, rather than for any reason substantially and operatively associated with his union activities. In my view, Mr Christensen made that distinction, but I am not satisfied, on the balance of probabilities, that Mr Fleming did. My reasons for reaching this conclusion are set out in the following paragraphs.”
The Court decided that Mr Christensen’s reasons for his assessment scores were properly focused on Mr Scott’s performance as an employee and more generally on his manner and attitude. The Court considered that Clermont Coal had discharged its onus insofar as Mr Christensen’s reasoning process was concerned. However the Court did not reach the same conclusion with Mr Fleming’s process at paragraph [211] the Court noted:
“[211]However, I do not consider I am able to come to the same conclusion about Mr Fleming’s reasoning process. Based on the many unsatisfactory aspects of his evidence highlighted above, I do not consider Mr Fleming concentrated, as he should have and as I consider Mr Christensen did, on Mr Scott’s performance as an employee and his attitude and manner more generally. Instead, I consider Mr Fleming was distracted from that course by his difficult relationship with Mr Scott, which stemmed from his terse dealings with him as a CFMEU executive member. In that state of mind, I consider he did allow one or more of the alleged particular reasons above to affect his reasoning process”
In Perez v Northern Territory Department of Correctional Services [2016] FCA 476, the Court looked at the circumstances that led to a trainee prison officer not being employed after his initial contract had been completed.
In that case there was a thorough examination of what constituted adverse action. In that case, the Appellant had raised a spurious claim that he had been harassed. The Appellant’s harassment complaint was investigated by Ms Andrews, an audit and investigations officer in the professional standards unit of the Respondent. That unit is intended to be both independent of, and at arm’s length to, the senior management of the Respondent.
Ms Andrews recommended that unless the Appellant could provide credible evidence of harassment, there should be no further action taken. She further recommended that:
“As it had been clearly identified that (the appellant’s) workplace performance is poor and is Tom meeting the requirements… It is recommended that consideration be given to terminating his employment contract with the Department which is due to expire 10 February 2014”.
Such a recommendation was capable of undermining the expectation that the appellant might have of being appointed as a prison officer upon the completion of his twelve month contract. Therefore the recommendation was adverse action. As there was no evidence to discharge the onus on the respondent, the Court found that such adverse action was for the prohibited reason.
How does the law apply to this case?
In this case, it seems to me, that it cannot be said that Ms Thompson was anything other than the sole decision maker. For that reason, the principles in Royal Melbourne Institute of Technology (Supra) have no application here. Ms Thompson was not a mere rubberstamp to the recommendations of the Second and Third Respondents. Notwithstanding that, her decision was based upon incomplete information. That information was deliberately withheld from Ms Thompson.
Therefore, it could be said that Ms Thomson’s decision was “infected” by the actions of the Second and Third Respondents, following the reasons in Kodak (Supra) and Clermont Coal (Supra). The question is then, “was the decision of the Second and Third Respondents to deliberately withhold information done because of an impermissible reason?”
Counsel for the Respondents submits that there was no contemporaneous connection between the union based activities of Ms Baillie and the sanction of the second warning. He submits that the proscribed reasons cannot possibly have been reasons for the action in issuing the second warning.
However, such a submission overlooks what had been occurring in the workplace. Ms Baillie had been exercising her workplace rights in procuring the attendance of Mr Crank to make representations on her behalf.
The evidence of the Second and Third Respondents, combined with their notes made at the time, show that Mr Crank was a very unwelcome presence at the workplace. Both the Second and Third Respondents did not want Mr Crank to attend and there is material in the affidavits complaining of the presence of Mr Crank.
In any event, I do not have to positively find that this was the reason for the Second and Third Respondents to act in the way they did, which ultimately influenced the decision made by Ms Thompson. I only have to find that the Second and Third Respondents (and therefore the First Respondent) have not discharged the onus of convincing me that they acted for a reason other than a prohibited one.
I have already rejected their supposed reasons for acting as they did which is epitomised in the evidence of the Third Respondent to which I have already referred. That is sufficient reason for concluding that the First Respondent has not discharged their onus.
I would be justified in finding that the First Respondent has breached s.340 of the FW Act by issuing the second warning letter.
What if the legal basis is incorrect?
Counsel for the Respondents submitted that because Ms Thompson is a sole decision maker, as long as she has acted in a bona fide way and not for a prohibited reason, there can be no breach of the FW Act. This may be a proper interpretation of Barclay (Supra) but it ignores the later decisions of Kodak (Supra) and Clermont Coal (Supra).
I have concluded that Ms Thompson’s bona fide decision was infected by the actions of the Second and Third Respondents and those actions were for a prohibited reason. However, the High Court has not given its imprimatur to the concept of an “infected” decision.
In looking at the events that concluded in the issuing of the second warning letter, it is clear that the decision of the Second and Third Respondents as to the performance and attitude of Ms Baillie during the PIP process, is also adverse action.
As the adverse action is taken by an employer against an employee if the employer alters the position of the employee to the employee’s prejudice, the action taken by the Second and Third Respondents to ignore the results of the PIP of 28 April and not refer to that meeting in the information provided to their superiors, has altered the position of Ms Baillie to her prejudice.
This is because the absence of such information puts her in a worse position in that it increases the likelihood that a decision maker will then sanction her. Therefore the action of the Second and Third Respondents is adverse action. Such a finding is consistent with the reasoning in Perez (Supra). The action of the Second and Third Respondents is also the action of the First Respondent.
As I have already found, the Respondents have not discharged their onus of proving to me that such action was for a reason other than a prohibited reason.
Therefore, I find that the Respondents have breached s.340 of the FW Act.
Conclusion
I declare that the First Respondent by making an accusation of unsatisfactory performance against Ms Baillie, specifically that:
a)Ms Baillie refused to accept the feedback from the PIP;
b)that there was no indication of a willingness to improve on the part of Ms Baillie; and,
c)that Ms Baillie did not accept the “integrity” of the process
contravened s.340(1)(a)(i) of the FW Act.
I will take submissions from the parties as to what orders should flow from this declaration.
I certify that the preceding two hundred and five (205) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 11 October 2016
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