Robb v State of Queensland (Queensland Health)

Case •

[2022] QIRC 390

•

11 October 2022

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Robb v State of Queensland (Queensland Health) [2022] QIRC 390

PARTIES:

Robb, Shayna
(Applicant)

v

State of Queensland (Queensland Health)
(Respondent)

CASE NO.:

 D/2021/55

PROCEEDING:

Notice of Industrial Dispute

DELIVERED ON:

 11 October 2022

HEARING DATES: 

26 – 28 April 2022
9 June 2022

MEMBER:

HEARD AT:

McLennan IC

Brisbane

ORDER:

As to the question for arbitration:

Whether Ms Robb's working arrangement, for the period of 25 January 2021 to 11 July 2021, should have been part-time at 0.5 FTE or full-time at 1 FTE?

The answer is:

Ms Robb's working arrangement, for the period of 25 January 2021 to 11 July 2021, should have been full-time at 1 FTE.
CATCHWORDS:

INDUSTRIAL LAW - QUEENSLAND - INDUSTRIAL DISPUTES - notification of industrial dispute – where applicant is a Registered Nurse employed by Queensland Health – where applicant is substantively engaged as a full time employee – where applicant worked under a temporary part time arrangement following period of maternity leave –   where temporary part time arrangement was due to expire – whether applicant agreed to extend temporary part time arrangement –  where applicant was set to commence second period of maternity leave – whether applicant should have been working under a part time or full time working arrangement in lead up to maternity leave


LEGISLATION & OTHER

INSTRUMENTS:

Industrial Relations Act 2016 (Qld) s 74, s 262

Queensland Health, Parental Leave Human Resources Policy, C26, cl 11
APPEARANCES:

Ms E Hanna and Mr M Dougall of the Queensland Nurses and Midwives' Union for the Applicant.

Mr A K Lossberg and Mr X Lake of Crown Law for the Respondent.

Reasons for decision

Background

  1. Ms Shayna Robb (the Applicant) is substantively employed as a permanent, full-time Registered Nurse in Perioperative Services at Gold Coast University Hospital, Gold Coast Hospital and Health Service for Queensland Health, State of Queensland (the Respondent). The Applicant has been substantively employed in that position since late 2017.[1]

    [1] The Applicant had first commenced under a temporary contract in 2015 and worked for approximately one year before resigning. The Applicant commenced under a new temporary contract in May 2017 before being appointed on a permanent, full-time basis at the end of 2017.

  2. From May 2019, the Applicant accessed a period of parental leave associated with the birth and care of her first child. The Applicant returned to the workplace on 27 April 2020 under a temporary, part-time work arrangement which was set to conclude on 24 January 2021.

  1. The Applicant fell pregnant with her second child in about October 2020.

  1. In the lead up to 24 January 2021, a dispute arose as to whether the Applicant had agreed to continue working part-time for a further six-month period – and thence whether she should revert back to full-time.

  1. The dispute arose in the context of the Applicant's plans to commence a second period of maternity leave on 2 May 2021.

  1. By Form 10 - Notice of industrial dispute filed on 4 June 2021 pursuant to ch 6 of the Industrial Relations Act 2016 (Qld) (the IR Act), the Applicant notified the Commission that an industrial dispute existed between her and the Respondent with respect to whether the Applicant should have been employed as a part-time or full-time employee following the cessation of the temporary part-time work arrangement on 24 January 2021 ('the industrial dispute').

  1. The Applicant welcomed her second child in early June 2021. Shortly after, a conciliation was held - however the industrial dispute was unable to be resolved and has been referred to me for arbitration pursuant to s 262(3) of the IR Act.

    "The Question" to be decided

  1. The question for arbitration is:

    whether Ms Robb's working arrangement, for the period of 25 January 2021 to 11 July 2021, should have been part-time at 0.5 FTE or full-time at 1 FTE.

  2. The Applicant contends that she did not enter into a binding agreement to work part-time for the period of 25 January 2021 to 11 July 2021. Whereas the Respondent contends the Applicant did agree to that arrangement.

    Applicant's case

  3. The Applicant's case is summarised below.

  4. In mid-January 2021, Ms Robb first became aware of the contract variation for the period between 25 January 2021 and 11 July 2021 ('the disputed period').

  1. On 19 January 2021, Ms Robb raised concerns about her contract arrangement at a meeting with Ms Simpson (NUM) in her office.  At that time, Ms Robb advised her manager that she had no prior knowledge of the contract variation, did not accept the offer to work part-time for that six-month period, and proposed a counter offer of a three-month part-time contract variation for the period from 25 January 2021 until 25 April 2021.  Ms Robb left the meeting believing the disputed contract would be replaced by a three-month contract.

  2. That did not transpire. 

  3. A meeting occurred on 17 February 2021 between Ms Robb, Ms Simpson, Ms Graham (Associate NUM) and Ms Jordan (HR Business Partner).  At that meeting, Ms Robb said she was willing to work full time immediately.  However, Ms Robb's request was declined because there were not "extenuating circumstances" to warrant such disruption to the staffing of the work unit.  Ms Robb pointed out that a "genuine reason" was required, rather than an "extenuating circumstance".  It was further explained to Ms Robb that the policy prevented her return to full time, in advance of her imminent parental leave, as that may be considered to be contriving a benefit.  Ms Simpson also questioned whether Ms Robb would be able to commit to full time hours given her absenteeism.  Ms Robb explained that her mother-in-law's recent retirement enabled her to care for her son, if he was unable to attend day care.

  4. The dispute remained unresolved, so Ms Robb escalated the grievance.

  5. The Applicant contends that there was no agreement between Ms Robb and her employer to vary the contract beyond 24 January 2021, so the default then was Ms Robb's return to her substantive full-time employment contract from 25 January 2021.

  6. Alternatively, if the Commission were to find there was a binding agreement for Ms Robb to work part-time in the disputed period, she was still entitled to terminate that temporary contract variation by notice given at the meeting held on 17 February 2021.  In those circumstances, Ms Robb was entitled to resume her full-time employment on 3 March 2021.[2]

    [2] Applicant's closing submissions, 29 July 2022, [101]-[108].

Respondent's case

  1. The Respondent's case is summarised below.

  2. On 24 November 2020, Ms Graham (Associate NUM) and Ms Robb met to discuss her working arrangements from 25 January 2021 onwards.  At that meeting, Ms Robb requested part time work for an additional six months.

  1. On the basis of that discussion, Ms Graham drafted an Employee Movement Request (EMR).

  1. Ms Simpson (NUM) did not herself have a discussion with Ms Robb, prior to signing the EMR on her behalf. The Respondent contends that Ms Simpson was not required to do so because there was legally no change in the arrangement, other than it was to cover a different period.

  1. As a matter of administrative convenience, the EMR (unsigned by Ms Robb) progressed through the chain of authorisation.

  1. On 10 December 2020, the contract was approved by Ms Sandra Lenehan (Delegate).  Ms Simpson confirmed that the system forwarded the contract variation to Ms Robb as an offer for her to either accept or reject.

  1. Ms Simpson reminded Ms Robb on one or two occasions in December 2020 that there was an EMR awaiting her electronic signature.  However, Ms Robb did not sign the EMR. 

  1. On 19 January 2021, Ms Robb raised concerns about her contract arrangement in a discussion with Ms Simpson.  At that time, Ms Robb made a counter offer of a three month part time contract variation, for the period from 25 January 2021 until 25 April 2021.  Ms Robb was asked to put her proposal to Ms Simpson in an email, so that it may be considered.

  1. A meeting was held on 17 February 2021 between Ms Robb, Ms Simpson, Ms Graham and Ms Jordan (HR Business Partner).  At that meeting, Ms Robb said she was willing to work full time immediately.  Ms Robb's request was declined because there were not "extenuating circumstances" and/or a "genuine need" to disrupt the staffing of the work unit in advance of her imminent parental leave.  It was further explained that a reversion to full time hours was not permitted under the employer's policy, as it may be seen as contriving a benefit.

  1. Ms Robb continued to press her claim.

Witnesses

  1. The Applicant called the following witnesses to give evidence at the Hearing:

    ·Ms Shayna Robb, the Applicant herself;

    ·Ms Jamie Fowler, Registered Nurse and sister of the Applicant; and

·Ms Joana Aragon, Registered Nurse.

  1. The Respondent called the following witnesses to give evidence at the Hearing:

    ·Ms Wendy Simpson, Nurse Unit Manager;

    ·Ms Krystal Graham, Associate Nurse Unit Manager;

·Ms Belinda Jordan, Human Resources Business Partner;

·Ms Natalie Uasi, Registered Nurse; and

·Ms Supriya Bajracharya, Registered Nurse.

Objections to witnesses

  1. The Applicant and Respondent filed lists of witnesses on 27 September 2021 and 25 October 2021 respectively.

  2. On 16 November 2021, the Hearing was listed to commence on 26 April 2022.

  1. On 12 April 2022, the parties filed a proposed Trial Plan in the Industrial Registry which indicated there may be objections to witness evidence. Noting that, I offered the parties the opportunity to deal with those objections prior to the Hearing. The parties agreed to this course and so a Mention was listed on 22 April 2022.

  1. At the Mention, the Respondent referred to the Applicant's intention to call Ms Fowler and Ms Aragon as witnesses at the Hearing. The Respondent submitted the evidence of Ms Fowler and Ms Aragon would not be relevant to the question for arbitration.

  1. After hearing the parties on this issue, I decided to admit the affidavits and oral testimony of Ms Fowler and Ms Aragon in light of the following considerations:

·the arrangements applied to others in similar circumstances to the Applicant may be relevant, as is any direct knowledge they may have as to the Applicant's own intentions;

·the interests of justice are best served by admitting the evidence of Ms Fowler and Ms Aragon;

·if I were to admit the evidence of the two witnesses and then, having heard the entirety of the case, considered it not to be relevant, the most harm done is the Hearing has taken a little longer than potentially it might have in which case the prejudice to the Respondent is minimal;

·if I were to refuse to admit the evidence of the two witnesses and that evidence may otherwise have impacted the Applicant's ability to best present her case, the prejudice to the Applicant would be significantly greater;

·given the matter had been on foot for some time and it was the business day before the Hearing was due to commence, I considered that disturbing the way the Applicant intended to run her case would create a level of unfairness; and

·it is open to the Respondent to raise objections to evidence on the grounds of relevance during the Hearing.

Exhibits and submissions

  1. During the Hearing, the following documents were made an exhibit:

    ·Exhibit 1: Agreed bundle of documents;

    ·Exhibit 2: Email correspondence between the Applicant and Ms W. Simpson dated 11 September 2020;

·Exhibit 3: Pay advices of various dates;

·Exhibit 4: Email from the Applicant to Ms W. Simpson dated 11 January 2021;

·Exhibit 5: Email correspondence between the Applicant and Ms W. Simpson dated 19 June 2020 to 22 June 2020; 

·Exhibit 6: Gold Coast Hospital and Health Service Procedure: Attendance Management (including sick leave);

·Exhibit 7: Leave Takings Report;

·Exhibit 8: Time sheet tables;

·Exhibit 9: Human Resources Policy: Flexible Working Arrangements; and

·Exhibit 10: Email from myHr Workflow System to Ms N. Uasi dated 16 December 2020.

  1. The parties filed written closing submissions following the Hearing. I have carefully considered all submissions and materials in this matter. I have determined not to approach the writing of this decision by summarising the entirety of those documents but will instead refer to key arguments in my consideration.

Factual disputes

  1. The following key questions of fact - and / or their relevance to the question to be arbitrated - are contested between the parties:

    ·Did Ms Robb and Ms Graham meet on 24 November 2020 to discuss her working arrangements from 25 January 2021?

    (If the meeting did occur, did Ms Robb agree to, or request that, she work part time between 25 January 2021 and 11 July 2021?)

    ·Did Ms Simpson take any steps to obtain Ms Robb's signature for the EMR?

·When did Ms Robb first become aware of the EMR that specified she was to work on a part time basis between 25 January 2021 and 11 July 2021?

·What reasons did the Respondent rely on in finding Ms Robb did not have a genuine reason to convert to full time employment?

·Did Ms Robb request to work on a full time basis to commence immediately during the meeting on 17 February 2021?[3]

[3] Applicant's closing submissions, 29 July 2022, 2, [4].

·When did Ms Robb become aware of cl 11.8 of the Parental Leave Policy regarding converting part time employees to full time employment before periods of parental leave?

·Were Ms Robb's level of absences high and / or required management?

·Was Ms Robb's contract variation from 25 January 2021 considered to be an extension of the same arrangement, rather than a change in working conditions?[4]

[4] Ibid [5].

·Can a contract variation be initiated without a written application from Ms Robb?[5]

·When did Ms Simpson and Ms Graham become aware that Ms Robb was pregnant with her second child?

·Did Ms Robb reject the offer to vary her substantive full time contract at the meeting with Ms Simpson on 19 January 2021?[6]

[5] Ibid [61]-[62].

[6] Ibid [65]-[70].

Did Ms Robb and Ms Graham meet on 24 November 2020 to discuss her working arrangements from 25 January 2021? (If the meeting did occur, did Ms Robb agree to, or request that, she work part time between 25 January 2021 and 11 July 2021?)

Applicant's position and supporting evidence

  1. The Applicant's position is that she did not meet with Ms Graham on 24 November 2020. By extension, the Applicant submits she did not agree to or accept a part time work arrangement between 25 January 2021 and 11 July 2021.

  2. The Applicant's evidence in support of her position is as follows:

·the Applicant completely disagrees with the proposition that she had a conversation with Ms Graham on 24 November 2020 in which the Applicant indicated she was prepared to continue with her existing 38 hours a fortnight arrangement until 11 July 2021;[7]

[7] T 1-29, L 17-20.

·the Applicant did not meet with Ms Graham on 24 November 2020;[8]

[8] T 1-17, L 1-17.

·the Applicant did not initiate the alleged part time agreement;[9]

[9] T 1-18, L 29.

·on 24 November 2020, the Applicant was working a day shift from "7.30 to 6" with a half hour lunch break;[10]

[10] T 1-28, L 4.

·the Applicant was working in operating theatre 12, which is vascular and high acuity and so she would have needed to be present in the theatre for the majority of the day;[11]

[11] T 1-28, L 6-8.

·"So when I found out that I was pregnant, I – I knew in my mind that I wanted to return to my full-time position before I accessed my second lot of parental leave. I knew that I wanted to put my child in full-time day-care in the lead up to me having the baby to help him with his developmental needs and just to get ready for the second baby. Having prior knowledge of multiple other colleagues in my department doing the same thing, that was my intention as well";[12]

[12] T 1-17, L 28-34.

·"24th of November, I was already 12 weeks pregnant and I – based on other colleagues in the department, my sister being one of them, I already knew in my mind that I wanted to return to my full-time position prior to maternity leave… So I would not have agreed to a contract with Krystal that finished after the due date of my baby. There's no ways I would've agreed to a contract that I knew I wanted to return to my full-time position prior to going on maternity leave";[13]

·"I had no understanding that shortening a contract variation was possible. Every other employee that I understood to go full time before parental leave had their contracts lapsed prior to going on maternity leave. No one shortened their contract. It was never a – a thought in my mind that that was a possibility. My intention was always to – to return to full time prior to my parental leave and initiate a shorter term contract that did lapse prior to my returning of – prior to my parental leave";[14] and

·with reference to the meeting on 17 February 2021 - "Krystal said to me at that meeting that some kind of conversation should have occurred for the contract to be drafted and signed on my behalf and I asked Krystal to inform me when exactly that conversation occurred and she gave me no information about that… And I asked for more information about that conversation which they did not provide me with and I, again, reiterated to them that I had not agreed to, in any conversation with anybody, for this contract".[15]

[13] T 1-47, L 29-37.

[14] T 1-48, L 11-17.

[15] T 1-49, L 5-15.

  1. Ms Fowler gave evidence that the Applicant did not ever indicate to her that it was the Applicant's intention to accept a part time arrangement and then try and apply for that to be shortened.[16]

    [16] T 1-76, L 8-12.

  2. The Applicant submits that Ms Graham's evidence in this regard was unconvincing and contradictory. The Applicant referred to the following exchanges:

·during her evidence in chief, Mr Lossberg questioned Ms Graham as follows:

So just saying to the Commissioner that as of now, you don't have a separate recollection of Shayna coming in and discussing this but you recall you don't – have never drafted an EMR without having first had a discussion - - -?---No.

- - - with an employee?---Never.[17]

[17] T 2-26, L 32-41.

·during cross-examination, Ms Hanna questioned Ms Graham as follows:

You did say earlier when you were being – when Mr Lossberg was speaking with you that you don't have an independent recollection of the meeting. Are you now changing what you were saying?---No, I know I would – I met with Shayna that week because I would not draft a movement form without discussing it with an employee.

What about that meeting can you recall?---It was in my office. I know there was a roster – roster designer in that office as well. At the time, I know who that was and there was various other employees in that office because there always is.

Anything else that set it apart?---No.

Do you remember where Shayna was working that day?---No.

But you remember with certainty that it was in your office - - -?---Yes.

- - - and who was there - - -?---Because - - -

- - - but you don't remember where Shayna had come from to meet with you?---All the conversations happen in my office.

Do you remember what time of the day - - -?---No.

- - - the meeting occurred? No, but you remember the meeting?---I – I remember discussing it with her.

I put it to you you don't directly recall the meeting?---I do.[18]

[18] T 2-39 – T 2-40.

·in her affidavit evidence, Ms Graham affirmed:

Once I have spoken to an employee, I put a tick with a diagonal line through the tick next to the employee's name.[19]

[19] Affidavit of Ms K. Graham, 25 October 2021, [14]d.

·during cross-examination, Ms Hanna questioned Ms Graham as follows:

what I'm trying to ask you, sorry. I'm asking more about the tick and what your tick represents. That tick represents that someone beside that tick has been communicated with by either yourself or Ms Simpson. Is that what you're saying?---No, that tick is that I have completed the required steps that I need to do, as in movement form and the roster.

So that tick doesn't represent a conversation, it represents that you've completed the other sections in your boxes, for example, the roster - - -?---That it's completed.

- - - the roster updates, the working up and the employee movement requests - - -?---Yes.

- - - and any other forms that you might need to do?---Yes.

Thanks. So I put it to you, Ms Graham, that this list doesn't actually confirm that you had a conversation with Ms Robb?---I – only that I know that I had a conversation with her.[20]

·Ms Graham indicated there could be a delay between the meeting, drafting the EMR and updating the roster;[21] and

·Ms Graham has "numerous discussions with people every day about annual leave, movement forms, all those things".[22]

[20] T 2-41, L 17-33.

[21] T 2-42, L 8-10.

[22] T 2-26, L 26.

  1. The 'Diary Note' marked KG-2 to the affidavit of Ms Graham does not explicitly record that a conversation between Ms Graham and Ms Robb occurred, nor does it reference the date of 24 November 2020.

    Respondent's position and supporting evidence

  2. It is the Respondent's position that the Applicant agreed to the part-time working arrangement for the disputed period during a meeting with Ms Graham on 24 November 2020. That meeting is alleged to have occurred approximately eight weeks prior to the commencement of the roster, which the Respondent contends is consistent with custom and practice.

  3. The Respondent submits it has an established custom and practice regarding the preparation of the roster and the accommodation of employees on temporary reduced hours arrangements which are due to expire before the start of the next roster. The Respondent notes in this regard:

    ·preparation of the roster is a substantial undertaking and is commenced well in advance; and

    ·Ms Graham prepares a list of employees who have temporary reduced hours arrangements which are due to expire.

  4. Further, the Respondent submits that the Applicant's previous pattern of behaviour demonstrates a clear understanding that requests for change must be made well in advance and prior to the commencement of a new roster. The Respondent submits that this factor makes it increasingly implausible that the Applicant would wait until 19 January 2021 to raise with her employer any concern with her part-time work arrangement commencing on 25 January 2021.

  5. The Respondent submits that the Applicant's previous conduct also demonstrates her capability and preparedness to use her work email address.

  6. The evidence relied upon by the Respondent is as follows:

    ·the Applicant was at work on 24 November 2020;[23]

    [23] T 1-17, L 48.

    ·Ms Graham gave evidence that she met with the Applicant in her office, asked the Applicant what her plans were and the Applicant responded to the effect she wanted to continue her current [part-time] arrangement and 'confirmed' that it suited her to continue that arrangement for another six months;[24]

    [24] Affidavit of Ms K. Graham, 25 October 2021, [16].

    ·Ms Graham's diary note lists the Applicant as well as Ms Bajracharya and Ms Uasi who were on temporary reduced hours arrangements that were due to expire;

·Ms Uasi's evidence is that she always meets with Ms Graham about six weeks before her reduced hours arrangement ends to discuss her work arrangement, she would never receive an Employee Movement Form without first having had a discussion with Ms Graham and the Employee Movement Form would always reflect the discussion;

·Ms Bajracharya's evidence is that she meets with Ms Graham about four weeks before the end of her temporary reduced work hours arrangement, she receives an email that a form has been processed on myHR following the meeting and she has never received the form without first discussing the arrangement with Ms Graham nor has she received a form which reflects different information to that discussed with Ms Graham;

·on 30 November 2020, Ms Graham sent the Applicant an email attaching forms and Ms Graham submitted an Employee Movement Form regarding the continuation of the Applicant's part-time work arrangement;

·Ms Graham gave evidence that:

eight weeks prior to a design of a roster, I will write down the contracts that are – are due to come to an end systematically as per the establishment sheet that we have for our resource allocation. And so I would write down each employee, their current working hours and if there's a question about whether they're going to – that we could actually maybe try to reduce them because there is a – an employee on here who we were going to reduce to her attendance management so that's why there's a question mark next to one of them and I would also just write down the date of the contracts that we were going to – from the start to the finish and then one by one, Wendy and myself would approach each employee to discuss their movement.

·Ms Graham's affidavit affirmed 25 October 2021 outlines the list of steps involved in coordinating employees on temporary reduced hours arrangements when preparing a roster;[25]

[25] Affidavit of Ms K. Graham, 25 October 2021, [14a.]-[14h.].

·Ms Graham gave evidence that, "… there's no way I would process an employee form without a discussion with an employee…I would not renew a contract for an employee without a discussion with them";[26]

[26] T 2-26, L 19-28.

·the Applicant took no steps to raise an issue regarding her part-time working arrangements until 19 January 2021, only five days prior to the commencement of the new roster;

·the Applicant had previously made requests that would impact her roster well in advance;[27]

[27] T 1-20, L 10-14.

·previously the Applicant had accessed her roster at home via 'eRoster' and "…would've continuously checked the – the roster until after my discussion with Wendy to see exactly when my start date was";[28]

[28] T 1-22, L 7-9.

·approximately seven weeks prior to the commencement of a new roster, the Applicant requested to vary her work arrangement from 40 to 38 hours via email to Ms Simpson on 19 June 2020 and Ms Simpson subsequently signed the Employee Movement Form approving this request on 24 June 2020;[29]

·on 11 September 2020, the Applicant sent an email to Ms Simpson requesting a further variation to her roster approximately seven weeks prior to the commencement of the new roster;[30] and

·during her maternity leave, the Applicant would "continuously check the roster".[31]

[29] Affidavit of Ms S. Robb, 26 August 2021, [5]; Exhibit 5; T 1-22, L 38-40.

[30] Exhibit 2.

[31] T 1-22, L 7-9.

Finding

  1. On the balance of probabilities, I find that the alleged meeting of 24 November 2020 did not occur.  My reasons follow.

  2. Ms Graham gave contradictory evidence in first asserting that she did not have an independent recollection of her alleged meeting with the Applicant on 24 November 2020 before then asserting that she did have a recollection. It is highly improbable that Ms Graham has an independent recollection of the meeting because her last minute assertion during cross-examination was not believable in light of the fact she had not indicated an independent recollection prior. Rather, Ms Graham's assertion that the meeting occurred is more likely based upon the premise that she would not have drafted the EMR without first speaking with the Applicant – i.e., in accordance with her usual practice.

  1. Ms Graham's contradictory evidence suggests she is mistaken about the occurrence of the meeting. The Respondent submits that it "defies logic" that Ms Graham would carry out steps without first speaking to the Applicant – however that argument is not certain nor convincing particularly against the strength of the Applicant's evidence.

  1. I have considered the evidence of Ms Bajracharya and Ms Uasi, however just because this issue has not arisen in the past, does not mean that it did not arise with respect to the Applicant.

  1. Ms Graham also gave contradictory evidence with respect to what her notebook indicated. Notably, the notebook does not expressly demonstrate a record of conversation between the Applicant and Ms Graham.

  2. In comparison, the Applicant's evidence was consistent and credible. The Applicant repeatedly denied having a recollection of discussing the arrangement with Ms Graham on 24 November 2020 or at all. I find that the Applicant would be more likely to recall whether the meeting occurred as it would have been a significant and rare event in comparison to Ms Graham repeatedly carrying out her processes with numerous staff members.

  1. Even if the conversation had occurred as alleged on 24 November 2020, I find on the balance of probabilities that the Applicant would not have agreed to nor initiated a six-month contract variation in light of her evidence regarding her pregnancy, knowledge of other colleagues entering into brief contracts designed to lapse prior to parental leave and her associated intentions.

When did Ms Simpson and Ms Graham become aware that Ms Robb was pregnant with her second child?

Applicant's position and supporting evidence

  1. The Applicant gave evidence that:

    ·she did not tell people from work that she was pregnant "until 2021";[32]

    ·the first time she mentioned she was pregnant to Ms Simpson was on 19 January 2021; and

·the Applicant believed Ms Simpson knew of her pregnancy from November 2020 when the Applicant was allocated to a theatre that required x-rays and as she was pregnant, she advised the coordinator she needed to change theatres – "And once we had swapped theatres before the first operation became underway the managers take a walk around the department just to see how everyone is going and following schedule and Wendy came in and congratulated me… On my pregnancy".[33]

[32] T 1-16, L 9-10.

[33] T 1-16, L 15-27.

  1. Ms Fowler gave evidence that sometime between October and 12 November 2020 she swapped shifts with Ms Robb because the latter had been allocated to an x-ray theatre.[34]  Ms Fowler also stated that she consulted the floor coordinator "a girl named Fiona Biell…And I believe Wendy Simpson as well"[35] before swapping the duties allocations. 

    [34] T 1-72, L 39-41.

    [35] T 1-72, L 45 - T 1-73, L 2.

  2. Ms Fowler's evidence supports Ms Robb's account of Ms Simpson congratulating her on her pregnancy in November 2020.

Respondent's position and supporting evidence

  1. Ms Graham's evidence is that she did not know that Ms Robb was pregnant at the alleged meeting on 24 November 2020.[36]  However, Ms Graham then went on to say that she could not recall the specific date thereafter that she did become aware of it.

    [36] T 2-55, L 19-22.

  2. At the Hearing, Ms Simpson's account did not clearly reveal when she became aware of Ms Robb's pregnancy:

    Mr Lossberg:      By this stage of the 19th January, were you aware that – so the 19th January – were you aware that Ms Robb was pregnant at that stage?

    Ms Simpson:      No.  Not that I remember.

    Mr Lossberg:      Do you know when you became aware?

    Ms Simpson:      When her sister, Jamie, told me – or told us.[37]
    …

    Ms Hanna:So are you now saying that you were aware of Shayna's pregnancy during the conversation on the 19th January?

    Ms Simpson:      I can't recall the dates.  It was so long ago, I wouldn't be able to obviously answer if I knew at that time or not.[38]

    …

    Ms Simpson:      It would have to be – I believe it would be before Christmas.  It was after the 1 December, because I wasn't aware that she was pregnant when I signed the movement form.[39]

    [37] T 2-75, L 28-33.

    [38] T 2-98, L 32-34.

    [39] T 3-22, L 6-8.

    Finding

  3. On the evidence of Ms Robb and Ms Fowler, it appears that Ms Simpson was aware of Ms Robb's pregnancy as at 12 November 2020 at the latest. 

  4. Despite Ms Simpson's initial denial that she was aware of Ms Robb's pregnancy on 19 January 2021, her later recollection was that she believed she became aware of the pregnancy sometime between 2 December 2020 and Christmas Eve 2020. 

  5. In light of that, I find on the balance of probabilities, that Ms Robb's clearer recollection of being congratulated on her pregnancy by Ms Simpson in November 2020 is more likely to be correct.

Mid-January 2021

Did Ms Simpson take any steps to obtain Ms Robb's signature for the EMR?

Applicant's position and supporting evidence

  1. The Applicant's position is that Ms Simpson did not have a discussion with her prior to signing the EMR on her behalf. The Applicant refers to exhibit WS-4 of Ms Simpson's affidavit affirmed 25 October 2021 which is an EMR on which Ms Simpson certified:

    I, as the supervisor acknowledge the responsibility for obtaining the signature of the employee as soon as they become available to sign the form so that it can be retained as a formal contract of employment.

  2. The Applicant's evidence is as follows:

    ·the Applicant first became aware of the contract after receiving an email in mid-January – this came as a surprise to the Applicant as she had not discussed a contract with anyone, including Ms Simpson who she would have expected to discuss such matters with;[40]

    [40] T 1-18, L 20-24.

    ·during the Applicant's meeting with Ms Simpson on 19 January 2021, Ms Simpson advised that the Applicant was not in the department when she signed on the Applicant's behalf and that was something management could carry out – there was no indication in that conversation that Ms Simpson had chased up the Applicant to obtain a signature;[41]

    ·during cross-examination of the Applicant by Mr Lossberg, the following exchange took place:

    Do you recall at any stage after that having discussions with Ms Simpson – so I'm saying discussions – any time where Ms Simpson raised with you in that period of around December, or up until you raised the 19th of January, where Ms Simpson raised with you that there was a contract sitting there for you to sign?---No, I do not.

    Okay. Can I suggest to you that on two occasions whilst you were working on a weekday shift – not on the weekend shift, because Ms Simpson doesn't work on the weekends – can I suggest to you that there were two occasions where she raised with you that there was a contract sitting there you needed to sign?---If there was a – if she raised that with me and I agreed, I would've signed the contract then, but she did not raise that with me at all, and that's why my signature's absent on that contract.[42]

    ·When Ms Hanna cross-examined Ms Simpson, the following exchange took place:

    Was there a reason why you didn't wait until the following week to draft the EMF then so that she could sign it herself; it would have still been seven weeks ahead?---Well, she had had the conversation. We'd had with Krystal, and we were doing all the movement forms together, it makes more sense to do them all together, send them through so then Tanya from finance doesn't get them in dribs and drabs so it's nice if they're all due around the same time then we usually do all the contracts together for that month; it just makes the flow easier for Tanya from finance.

    So it would seem that the two worst things that could happen had Shayna – had Ms Robb not signed this contract, is that in the first instance, after two or three days, an alert might have been sent to your senior manager and yourself; is that correct?---Yeah.

    And the other worst thing that might have happened by waiting for Shayna to sign it herself is that Tanya might have received a lone EMF to process a couple of days after the rest?---Yes. There was plenty of opportunity after it was done to when she declined it to actually decline it earlier though if she wasn't happy with it.

    [41] T 1-18, L 36-45.

    [42] T 2-13, L 31-41.

  3. The Applicant submits that Ms Simpson's claim to have verbally informed the Applicant of the signed contract variation had not been made at any time prior in discussions, emails or meetings, nor was it mentioned in her affidavit dated 25 October 2021.

    Respondent's position and supporting evidence

  4. The Respondent relies upon the following evidence:

    ·the Applicant was on carer's leave on 1 December 2020;[43]

    [43] T 1-30, L 28-29.

    ·the Applicant did not return to work until 6 December 2020;[44]

    [44] T 1-37, L 11-12.

·the following exchange took place during cross-examination of Ms Simpson by Ms Hanna:

But I mean, if you sign on their behalf, do you get any information then to say that then the employee hasn't signed it, or is that the end of it once you've signed it?---Once I've signed it it will go through to the next person. I can go back into the process flow and see where it's at and check.

How many times do you think you raised then this with Ms Robb about the contract being there?---I can't recall exactly, but it was once or twice I said that it will – the contract was done and it will be there for her to sign.[45]
…

[45] T 2-74, L 14-21.

I put it to you that you don't have a held recollection - - -?---I didn't - - -

- - - of having a conversation with Shayna but rather you're relying on what you recall to be your usual process?---I believe I had a conversation with her. I don't believe – I don't know that I hadn't put it in my affidavit. I'm only going with the affidavit saying what I believed that – or that I could recall at the time being so – so long ago, and how many conversations I have with all staff, and how many contracts that we do. It's my normal process to actually tell the staff that the contract has been done so just look out for it in their inbox, or if I've signed on their behalf I'll let them know that they will get a contract. It will – it will come back into their inbox because they've had that previous conversation with Krystal as well.
Thank you. I don't want you to take my word for it; would you like to take a moment to review your affidavit and see if you have included any information about having had a conversation?---No.

No? I apologise; just give me a moment, please. Ms Simpson, I put it to you that there was no conversation between you and Ms Robb telling her that there was a contract there for her to sign?---What do you want me to say?

It's up to you?---I believe that I had that conversation [indistinct][46]

[46] T 2-90, L 20-40.

Finding

  1. Ms Simpson did not give evidence that she had previously taken steps to obtain Ms Robb's signature for the EMR until her oral testimony. That is significant and her evidence in this regard is less reliable for that reason. In comparison, Ms Robb's responses to questions on this issue were consistent and believable – Ms Simpson had not made an attempt to obtain her signature for the EMR.

  2. Significantly, Ms Robb's evidence is that during her meeting with Ms Simpson on 19 January 2021, Ms Simpson did not indicate that she had chased Ms Robb up to obtain a signature. It seems peculiar that Ms Simpson would not raise previous attempts to obtain Ms Robb's signature, if that had in fact occurred – particularly when the Applicant's knowledge of the arrangement was in dispute. On the balance of probabilities, I find that Ms Simpson had not taken steps to obtain Ms Robb's signature and this supports the Applicant's position that Ms Robb was not aware of the EMR until about mid-January 2021 and goes to explain why she did not raise the issue of not having agreed to the arrangement with Ms Graham earlier.

When did Ms Robb first become aware of the EMR that specified she was to work on a part time basis between 25 January 2021 and 11 July 2021?

Applicant's position and supporting evidence

  1. The Applicant's evidence is as follows:

    ·the Applicant did not see the email Ms Graham sent on 30 November 2020 at that time;[47]

    [47] T 1-18, L 8.

    ·in mid-January, the Applicant received an email from MyHR, prompting her to accept a part-time contract variation commencing 25 January 2021 and concluding 11 July 2021;[48]

    [48] Ibid L 10-13.

·the receipt of the MyHR email in mid-January was the first time the Applicant was made aware of any contract from 25 January 2021 and the Applicant had not been expecting that email because she had not discussed a contract with her employer beyond 24 January 2021;[49]

[49] Ibid L 14-22.

·previously, the Applicant had initiated changes in contract;[50]

[50] T 1-22, L 37-39.

·on 6, 7 and 8 December 2020, the Applicant was not made aware about a new contract in place that was signed on her behalf – Ms Simpson did not attempt to make the Applicant aware or let her know that she had signed an EMF on the Applicant's behalf;[51]

[51] T 1-37, L 17-19.

·the Applicant did not have work emails on her phone during the relevant period and it was not a requirement that she do so;[52]

[52] T 1-40, L 11-12.

·the Applicant could access her emails utilising her home laptop if she was required to;[53] and

·"I knew that it was due to expire and six months came around quicker than I expected. I was pregnant, there was other things on my mind and I thought that I would be presented or contacted from my line manager regarding my contract end date, should I have not initiated a conversation with her first".[54]

[53] T 1-56, L 37-40.

[54] T 1-42, L 6-10.

Respondent's position and supporting evidence

  1. The evidence relied upon by the Respondent is as follows:

    ·Ms Simpson informed Ms Robb "once or twice" that the contract had been signed and would be in her inbox for signing;[55] and

    ·on 11 January 2021, Ms Robb sent an email to Ms Simpson stating "I have asked various people and also posted on the Facebook group for someone to help me out with covering my shift on Jan 26". 

    [55] T 1-74, L 19-21.

  2. The Respondent asserted that "on her own evidence, Ms Robb accepts that by 11 January 2021 she was aware that a roster had been prepared commencing 25 January 2021 which continued her 38 hour fortnight."[56]

    [56] Respondent's closing submissions, 23 August 2022, [45].

    Finding

  3. As at 11 January 2021, Ms Robb was aware that she continued to be rostered on a part time basis after 25 January 2021.

  4. On the balance of probabilities, I find it was unlikely Ms Robb was aware of the EMR prior to it being signed on her behalf on 1 December 2020, because if she was - I believe that she would have raised her concerns much earlier than 19 January 2021.

  5. As it stands, the evidence shows that Ms Robb waited a little more than one week to raise her concerns with Ms Simpson.

  1. I have already found that the alleged conversation on 24 November 2020 did not occur and the Applicant did not agree to continue her part time arrangement as alleged by the Respondent. On that basis, I find it reasonable that the Applicant did not have a need to check her emails as there was no agreed arrangement to prompt her to do so. I have also earlier found that Ms Simpson did not take any steps to obtain Ms Robb's signature which further supports the Applicant's position that Ms Robb was unaware of the EMR until 11 January 2021. Regardless, I accept the Applicant's submission that even if she had been aware of the EMR – a failure to sign the EMR does not amount to consenting to the terms of the contract.

    Can a contract variation be initiated without a written application from Ms Robb?

    Applicant's position and supporting evidence

  2. It is not in dispute that on 1 December 2020, Ms Simpson certified the contract variation and signed it on behalf of the Applicant.

  3. The Applicant submits:

    ·Ms Robb never signed the EMR;

    ·Ms Simpson was responsible for obtaining Ms Robb's signature "as soon as they become available to sign the form, so that it can be retained as a formal contract of employment."[57]  Ms Simpson's failure to adhere to the undertaking to obtain the Applicant's signature invalidates any potential binding part time contract;

    [57] Undertaking on EMR, marked WS-4 to Ms Simpson's Affidavit, 56.

·that Ms Simpson, who was not physically present during the alleged meeting between the Applicant and Ms Graham, had the Applicant's express or implied authority to make a binding request on the Applicant's behalf to enter into legal relations to vary the contract of employment, is an outlandish proposition;

·the language of the EMR "… so that it can be retained as a formal contract of employment" does not appear to contemplate that a formal contract of employment exists prior to signature by the employee;

·any contention that an employee's manager can ever have authority to vary the core terms of the employment relationship, such as remuneration or hours of work, other than with the express or written permission of the employee must be rejected;

·cl 11.24 of HR Policy C26 'Parental Leave' (C26 Policy) provides that "An application for part-time work under the parental leave provisions is to be made in writing";

·a contract variation must be in writing and at the initiative of the employee, consistent with ss 74 and 74(1)(a) of the IR Act; and

·the Respondent breached the IR Act and C26 Policy when they initiated a contract variation for the Applicant without a written application from her.

  1. Evidence in support of the Applicant's position is as follows:

    ·During cross examination of the Applicant by Mr Lossberg, the following exchange unfolded:

    So you agree then – so that you – you accept then they were to pay – from their dealings with you about this, when you wanted a change, you communicated that to them either through first a phone call and then an email?---Sorry, say that again?

When you wanted change to your roster or contract, you communicated to them. Like in this case in June, you did both a telephone call and an email?---Mm.

You'd accept that?---Yes.

And in response to the roster you emailed about the change going from Monday to Fridays?---Yes.

So that's what I'm saying, is you'd accept that they, in their dealings with you about these things, had received emails from you?---Yes. Yes.[58]

·Ms Simpson made a false declaration in the manager certification section of the contract variation;[59] and

·when the Applicant initially requested to work part-time, Ms Simpson signed the Employee Movement Form on the Applicant's behalf as she was absent from the workplace and the Applicant had not raised objection to this course "because the contract was what I had requested" and she "had no reason to raise any concerns because the contract that was in place was what I had initiated and requested".[60]

[58] T 1-60, L 4-17.

[59] T 2-84, L 27-29.

[60] T 1-21 L 30 – T 1-22, L 19-21.

Respondent's position and supporting evidence

  1. The evidence relied upon by the Respondent is as follows:

    ·Ms Robb was not at work on 1 December 2020 and was on carer's leave to care for her son;[61]

    [61] T 1-36, L 47.

    ·due to Ms Robb's absence, Ms Simpson signed the Employee Movement Form on Ms Robb's behalf;[62]

    [62] Affidavit of Wendy Simpson, 25 October 2021, [23].

·Ms Simpson was aware from discussions with Ms Graham that Ms Robb had requested the part-time arrangement from 25 January 2021 to 11 July 2021;

·it is Ms Simpson's usual practice as Nurse Unit Manager to sign an Employment Movement Form on myHR for employees where there has been a discussion between the employee and their line management about their changed working arrangements and the employee is unable to sign for themselves;[63]

[63] Ibid [25].

·Ms Simpson had previously signed an Employee Movement Form on the Applicant's behalf when Ms Robb returned to work after the birth of her first child.  Ms Robb expressed no concerns with that process at that time;

·a further reason for signing the Employment Movement Form is that if it is not signed within two days of being submitted on myHR, the system would delay the processing of the form and an escalation alert would be sent to management;[64] and

·the Respondent also contended that Ms Robb's signature was not required on the EMR, as it was simply a continuation of the existing part time arrangement.

[64] Ibid [26].

Finding

  1. It is not in dispute that Ms Robb did not make a written application to vary her contract arrangement.

  2. Clause 11.24 of the C26 Policy provides that "An application for part-time work under the parental leave provisions is to be made in writing". That did not occur. Ms Graham acknowledged that the action taken was in breach of the C26 Policy requirement.[65]

    [65] T 2-49, L 39-40; Applicant's closing submissions, 29 July 2022, [53].

  1. At its highest, I accept the Applicant's submission that the Respondent could only reasonably initiate and sign a contract variation on Ms Robb's behalf if she confirmed the content of an oral agreement through an email. In that regard, I refer to and accept the Applicant's submission that:

Notwithstanding the clear reasons of public policy why it would be inappropriate for managers to be empowered to enter into contracts on behalf of their subordinates that vary the terms of their employment, the Respondent's legal argument must fail because there is no evidence Ms Robb consented to both Ms Graham and Ms Simpson acting as her agent in varying her contract. Consenting to Ms Simpson's signature is necessary both because Ms Simpson actually signed the EMR and because Ms Graham did not have the capacity to sign the EMR on Ms Robb's behalf. Accordingly, Ms Graham was required to at least seek Ms Robb's agreement to a proposition to the effect of "based on what you told me, I am going to draft and endorse an EMR which can then be actioned by Ms Simpson. If you are not available on the day Ms Simpson is reviewing EMRs, you  agree she can sign it on your behalf," for there to be any reasonable argument that Ms Robb consented to Ms Simpson's subsequent signing of the contract.[66]

[66] Ibid [64].

  1. By 19 January 2021, the Respondent was certainly aware that Ms Robb did not accept or agree with the EMR signed on her behalf - that was prior to the commencement of the new roster from 25 January 2021.  Further, I have earlier found that Ms Robb did not make an oral application nor did she accept any variation to her contractual arrangement as the alleged meeting of 24 November 2020 did not occur.  If I am wrong on that point, the contract was not binding without Ms Robb's signature.  Therefore, any subsequent action by Ms Simpson made under the guise that Ms Robb had agreed on the arrangement through conversation with Ms Graham cannot be contractually binding on Ms Robb.

  2. Ms Robb is substantively employed on a full time basis. In light of my finding that the alleged 24 November 2020 meeting did not occur, I agree with the Applicant's submission that it is an outlandish proposition that Ms Robb could be bound by an arrangement as significant as the one allegedly agreed to. That is, without any discussion, signature, nor express or implied consent for Ms Simpson to sign on her behalf. There was certainly no written application in these circumstances and I find that Ms Robb should not be bound by the EMR for those reasons.

    Was Ms Robb's contract variation from 25 January 2021 considered to be an extension of the same arrangement, rather than a change in working conditions?

    Applicant's position and supporting evidence

  3. The Applicant's position is that Ms Simpson had falsely certified on the EMR that she had "Discussed with this employee the consequences of this change to their position, employment status, terms of employment and/or roster."[67]  It is not disputed between the parties that no such discussion occurred between Ms Simpson and Ms Robb as at 1 December 2020. 

    [67] Affidavit of Wendy Simpson, 25 October 2021, WS-4, 56.

  4. Ms Simpson was required to have this discussion with Ms Robb because "a part time arrangement during the relevant period is different to a part time arrangement for another period of time and different again from her substantive contract of employment."[68]

    [68] Applicant's closing submissions, 29 July 2022, [23].

  1. It is submitted that "…had this discussion occurred prior to signing by Ms Simpson, during which the duration of the arrangement would necessarily have been brought up, the dispute probably could have been avoided."[69]

    [69] Ibid.

Respondent's position and supporting evidence

  1. In her Affidavit affirmed on 25 October 2021, Ms Simpson confirmed that she herself did not have a discussion with Ms Robb prior to signing the EMR on her behalf.  Rather, Ms Simpson relied on Ms Graham's advice that Ms Robb had agreed to continue her part-time arrangement at 38 hours per fortnight from 25 January 2021 until 11 July 2021. 

  1. On 1 December 2020, Ms Simpson signed the EMR form on Ms Robb's behalf, as she was absent from work on carer's leave that day.  That was expressly indicated in the EMR.[70]

    [70] Affidavit of Wendy Simpson, 25 October 2021, WS-4, 56.

  1. Ms Simpson affirmed "It is my usual practice as Nurse Unit Manager to sign an Employee Movement Form on myHR for employees where there has been a discussion between the employee and their line management about their changed working conditions and the employee is unable to sign for themselves, for example, because they are absent from work.  This is reflective of the paper-based movement forms which were used prior to the myHR system which also allowed for a line manager to sign a movement form on an employee's behalf."[71]

    [71] Ibid 5 [25].

  1. Ms Simpson stated "At that time, I was not aware that Ms Robb was pregnant or that she planned to resume full-time hours 1 week before commencing parental leave."[72]

    [72] Ibid [24].

Finding

  1. Ms Simpson signed the EMR on Ms Robb's behalf, without her express permission to do so. 

  2. Ms Simpson certified that she had "Discussed with this employee the consequences of this change to their position, employment status, terms of employment and/or roster".  No such conversation had occurred between Ms Simpson and Ms Robb as at 1 December 2020, instead Ms Graham's advice was relied upon exclusively.

  3. A conversation was nonetheless required because the contract variation sought to cover a different period of time to the previous contract.  In addition to the different time period coverage, the subject contract variation also meant that Ms Robb's working arrangements did not default to her substantive contract of employment, as would have been the usual course.

  1. Although the Respondent submitted that the EMR constituted a 'continuation' of the existing part time arrangement – the EMR form itself clearly contemplates a 'change' and I find that in the absence of an agreement to the contrary, Ms Robb's contract should have defaulted back to full time once her temporary part time arrangement concluded.

When did Ms Robb become aware of cl 11.8 of the Parental Leave Policy regarding converting part time employees to full time employment before periods of parental leave?

Applicant's position and supporting evidence

  1. Ms Robb knew that other nurses had returned to full time working hours just prior to commencing paid parental leave and wished to do that too.  She was aware that paid parental leave would be paid on a pro rata basis, if she were working only part time hours before embarking on that leave.

  2. The Applicant submitted that:

One of the primary and legitimate interests of any employee in an employment relationship is their financial interest in payment for work performed.  It would be challenging to find an employee seeking to increase their hours of work under any circumstance who was not motivated primarily by the financial benefit of doing so…[73]

[73] Applicant's closing submissions, 29 July 2022, [39].

  1. Ms Robb has not shied from that reality.  Ms Robb owned that she wished to return to the full time hours of her substantive position in order to access paid parental leave at full pay, as others had done. 

  2. It is also the case that she wished to see her first child settled into day care before her baby was born.  Her evidence was that:

So when I found out that I was pregnant, I – I knew in my mind that I wanted to return to my full-time position before I accessed my second lot of parental leave.  I knew that I wanted to put my child in full-time day care in the lead up to me having the baby to help him with his development needs and just to get ready for the second baby.  Having prior knowledge of multiple other colleagues in my department doing the same thing, that was my intention as well.[74]

[74] T 1-17, L 28-24.

  1. Ms Robb's clear intention was to return to full time working hours shortly before she commenced her second period of paid parental leave. 

  1. Ms Robb's evidence was also that she was unaware she could give notice to vary an agreed arrangement without the employer's approval.[75] 

    [75] T 1-48, L 36-43.

  1. The Applicant submitted that to be further evidence that Ms Robb had not requested, or agreed, to work on a part time basis for an additional six months.

Respondent's position and supporting evidence

  1. The Respondent's position is that a meeting occurred between Ms Graham and Ms Robb on 24 November 2020 to discuss working arrangements from 25 January 2021 – and at that time, Ms Robb requested to work an additional six months on a part time basis. 

  2. The Respondent submitted that Ms Robb was not aware of cl 11.8 of the Parental Leave Policy at the time of the meeting and so could not have intended to work part time for less than six months.

  1. At the point Ms Robb became aware of that provision, she sought to resile from the contract variation as agreed.

Finding

  1. On the balance of probabilities, I have earlier rejected the Respondent's proposition that a meeting occurred between Ms Graham and Ms Robb on 24 November 2020.  It follows that I also find that Ms Robb did not agree or accept an offer to work an additional six months on a part time basis at that time.

  2. It is a matter of tangential interest only really as to when Ms Robb became aware of the provisions of cl 11.8 of the Parental Leave Policy.  The muddle in evidence with respect to both the precise wording and appropriate application of the terms shows that detail eluded others as well.

  3. However, Ms Robb was certainly aware of other nurses who had resumed the full time working hours of their substantive contracts just before accessing subsequent periods of paid parental leave.  I believe that Ms Robb planned to place her child in full time day care in the lead up to having her baby.  That is not an unusual choice for families at that time, should finances permit.  Yet another reason it made perfect sense to me that Ms Robb had a clear intention to do just that – and return to full time working hours ahead of commencing her second period of paid parental leave.[76] 

    [76] Affidavit of Shayna Robb, 26 August 2021, 2 [8]-[10].

  4. I accept Ms Robb's evidence that she was not aware of her ability to give notice to vary an arrangement made unilaterally.  Ms Robb's knowledge of her workplace rights appeared to be drawn from what other colleagues had done in similar circumstances.  It rang true when Ms Robb stated that "…I have no – no reason to – to think that that was a possibility of mine.  I have no – I don't know anybody who's done that.  I don't know that that's allowed.  I don't know that that's not allowed.  I was never – it was not – never on my mind."[77]

    [77] T 1-48, L 36-43.

  1. Ms Robb also knew that working part time hours immediately prior to commencing paid parental leave would mean that payment would be made on a pro rata basis only.  Naturally enough, her preference was to receive the full time payment commensurate with her substantive position.

  1. I agree with the Applicant's submission that:

…the Respondent's interpretation and application of clause 11.8 of the Parental Leave Policy leaves no room for consideration of an employee's personal circumstances or the fact that their substantive role is a full time.  It has the effect of encouraging managers to keep employees substantively employed on full time contracts in part time arrangements to ensure the Respondent is not liable for the full cost of parental leave.[78]

[78] Applicant's closing submissions, 29 July 2022, [39].

  1. The Respondent's restrictive application of cl 11.8 of the Parental Leave Policy effectively blocked Ms Robb's many attempts to revert to her substantive full time hours and pay, ahead of embarking on a subsequent period of parental leave.  A balanced approach to considering both the operational need and employee need is the appropriate course.

19 January 2021

Did Ms Robb reject the offer to vary her substantive full-time contract at the meeting with Ms Simpson on 19 January 2021?

Applicant's position and supporting evidence

  1. In the Affidavit affirmed on 26 August 2021, Ms Robb recounted the meeting with Ms Simpson to discuss her plans after the conclusion of her current part time contract on 24 January 2021 and to "…raise my concerns about the new part-time contract she had signed on my behalf."[79] 

    [79] Affidavit of Shayna Robb, 26 August 2021, 2 [17].

  2. At that meeting, Ms Robb advised Ms Simpson that:

·she had not agreed to this new part time temporary contract;

·she did not agree to work part time until 11 July 2021;

·she was "happy to continue working part-time at 38 hours a fortnight after 24 January 2021 but that I needed to return to full time hours in April 2021 as I needed to access full time childcare"; and

·she suggested a three month contract from 25 January to 25 April 2021.[80]

[80] Ibid [17]-[19].

  1. Ms Robb's evidence was that "In this meeting Ms Simpson agreed a new contract could be done, for 38 hours fortnight commencing on 25 January 2021 and ending on 25 April 2021."  Ms Robb stated that she thanked Ms Simpson and would accept the new contract when it appeared on the myHR system.

  2. The new roster commenced on 25 January 2021 and Ms Robb's rostered hours were for 38 hours per fortnight.  On the basis of her conversation with Ms Simpson, Ms Robb commenced the arrangement that she understood would now conclude on 25 April 2021.

    A new contract in the terms Ms Robb believed to be agreed was not forthcoming.  She made attempts to follow up the "agreed action" with Ms Simpson by emails on 29 January 2021 and 9 February 2021, without response.  On 10 February 2021, Ms Robb telephoned Ms Simpson who "…informed me she would not be changing the temporary contract due to end on 11 July 2021" because to do so would be in breach of cl 11.8 of the Parental Leave Policy.

  3. On 12 February 2021,[81] Ms Robb again emailed Ms Simpson to reiterate her need to return to the full time hours of her substantive position, further reminding her that the contract was "renewed on my behalf and without being discussed with me."[82]

    [81] Ibid, Attachment SR-6.

    [82] Ibid 3 [32].

    Respondent's position and supporting evidence

  4. Ms Simpson has differently described her meeting with Ms Robb on 19 January 2021 as a "brief and informal" "corridor discussion".

  5. Ms Simpson's recollection of that meeting differed from Ms Robb's recount in some respects.

  1. Nonetheless, Ms Simpson did confirm "Ms Robb said to me that she wanted to revert to full-time hours on 25 April 2021."

  1. Ms Simpson's stated response was that Ms Robb's request would need to be investigated, as she was unsure whether the Parental Leave Policy permitted that.  Ms Simpson asked Ms Robb to detail her request in an email, so it could be considered.  Ms Robb did so on 29 January 2021.

  1. After Ms Simpson had clarified the policy with HR, she and Ms Robb spoke on the telephone (on or about) 10 February 2021.  Ms Simpson stated "I informed Ms Robb that the Policy did not allow me, as her line manager, to authorise an early end to an agreed part-time arrangement.  I informed Ms Robb that the request would need to be escalated to my line manager."[83]

    [83] Affidavit of Wendy Simpson, 25 October 2021, 6 [31]-[34].

Finding

  1. I agree with the Applicant's submission[84] that Ms Robb's statements to Ms Simpson in the meeting on 19 January 2021 constituted a clear "rejection of the offer to vary her substantive full-time contract to a 6 month, part time arrangement for 38 hours per fortnight, commencing 25 January 2021".[85]

    [84] Applicant's closing submissions, 29 July 2022, [68].

    [85] Exhibit 1, v 2, tab 5.

  2. For the reasons explained above, I have earlier found on the balance of probabilities that the 24 November 2021 meeting said to have occurred between Ms Graham and Ms Robb, did not.

  1. It follows then that Ms Robb had not agreed to the new part time temporary contract, signed on her behalf by Ms Simpson.  Neither had Ms Robb accepted the contract offered to her via myHR. 

  1. Having only recently become aware of it, Ms Robb took steps at the 19 January 2021 meeting to categorically reject the six month contract variation.  I agree with the Applicant's submission that she did so:

·explicitly, by saying she did not agree to, or accept the offer, and

·implicitly, when she made a counter offer for a three month contract variation.[86]

[86] Applicant's closing submissions, 29 July 2022, [103],

  1. I further note that meeting occurred prior to the commencement of the 25 January 2021 roster cycle.  No alterations to the roster were required for the first three month period, that Ms Robb was agreeable to continuing working part time hours of 38 hours per fortnight.  While it may have been administratively inconvenient to adjust the roster following 25 April 2021, it was certainly possible – and in my view the appropriate course given that the new contract variation had not yet been accepted – and was very clearly rejected - by Ms Robb as at 19 January 2021.

    17 February 2021

    Did Ms Robb request to work on a full time basis to commence immediately during the meeting on 17 February 2021?

  2. It is not disputed between the parties that Ms Robb offered to immediately commence full time work at the meeting with Ms Simpson, Ms Graham and Ms Jordan on 17 February 2021.

  1. Ms Robb's evidence was that:

    …when I said that I did not agree to the contract and that if a three-month contract couldn't be put in place, I voiced that I would then return to my substantive full-time position effective immediately or effective from the two weeks' notice that I needed to give…[87]

    [87] T 1-51, L15-18.

  2. Ms Simpson's evidence was that:

    Because Shayna had said that she was willing to work full time. In one statement, she'd said immediately, or – and the other statement was from the 25th of April…[88]

    [88] T 3-22, L 39-41.

  3. Ms Jordan's evidence was that:

    Mr Dougall:So, Ms Jordan, do you accept that during this meeting Ms Robb indicated she'd be willing to return to full time word immediately there?

    Ms Jordan:     ---That's correct. That's – I believe she did make that comment, yes.[89]

    [89] T 4-18, L 21-23.

  4. In addition, the File Note of the 17 February 2021 meeting that was later prepared by Ms Jordan provides:

    Ms Robb then advised that she was would [sic] be prepared to increase her hours to fill-time [sic] immediately and Ms Jordan advised that given the commencement of her maternity leave (being in April 2021) was only a couple of months away this still would not meet the genuine reason / need requirement (in the Parental Leave Policy).[90]

    [90] Exhibit 1, vol 1, 2. Respondent's List, tab 2, Exhibit BJ-1.

  5. The difference between the parties' positions is the relevance of this particular point to the question to be arbitrated.

    Applicant's position and supporting evidence

  6. With respect to the relevance of Ms Robb's offer to immediately commence full-time work, the Applicant contends that:

    …the Respondent gave only passing consideration to Ms Robb's request to return to work immediately.  This request was clearly of a different nature to her original request because there were approximately 10.5 weeks between 18 February and 2 May 2021, the commencement of Ms Robb's parental leave.[91]

    [91] Applicant's closing submissions, 29 July 2022, [43].

Respondent's position and supporting evidence

  1. With respect to the relevance of Ms Robb's offer to immediately commence full-time work, the Respondent's position was essentially that whether her return to full-time work was one week or more, Ms Robb "…was still wanting to amend…part-time working agreement which she had agreed to put in place until 11th of July."  In that sense, the Parental Leave Policy was still offended because "…irrespective of the timing of the change (e.g. one week or six months prior) the manager is to be able to justify that requirement."[92]  That is, the requirement for there to be a genuine reason / need.

    [92] Respondent's closing submissions, 23 August 2022, [77].

    Finding

  2. Ultimately, the fact of Ms Robb's offer to go full-time effective immediately is not contested.

  3. The matter has only tangential relevance in circumstances where I have earlier found that the 24 November 2020 meeting did not occur. 

  4. If I were to be wrong on that point, I have also disturbed the Respondent's assertion that a binding contract was in place at that time – thus reversion to Ms Robb's substantive full-time contract ought have been the default.

What reasons did the Respondent rely on in finding Ms Robb did not have a genuine reason to convert to full time employment?

Applicant's position and supporting evidence

  1. The genuine reasons / needs that Ms Robb asked to be considered in the 17 February 2021 meeting were that:

    ·she wished to settle her infant into childcare ahead of the baby coming and also to support his development; and

    ·working full-time would enhance her financial position to do so.

  2. The Applicant also asserted that neither Ms Jordan, Ms Simpson nor Ms Graham present at the meeting explained the process for considering the genuine need that Ms Robb had raised.  Rather, Ms Jordan had raised the bar to "extenuating circumstances" – and that Ms Robb had countered that the policy instead required there to be a "genuine need."[93]

    [93] Applicant's closing submissions, 29 July 2022, [32].

    Respondent's position and supporting evidence

  3. The Respondent's position was that the genuine reason / need was to take account of the operational requirements of the HHS.  It was not sufficient for it to be a genuine reason / need of Ms Robb's alone.

  4. Ms Jordan's evidence for why Ms Robb's request did not meet the genuine reason / need requirement were that:

    ·there was already a temporary nurse in place that the Respondent did not wish to displace;

    ·they did not wish to disrupt the work unit for a period of one week;

·they did not have the work for both Ms Robb and the temporary nurse at that time; and

·it was not operationally convenient.[94]

[94] T 4-6, L 1.

  1. Further, Ms Simpson's evidence was that she doubted Ms Robb would be able to fulfill a commitment to full-time work, given her attendance to date.[95]

    [95] T 3-22, L 38-47.

    Finding

  2. With respect to the 'genuine need' assessment under cl 11.8 of the Parental Leave Policy, the Applicant contends that the Respondent had applied the policy too restrictively by implying that conversion to full time should only occur in extenuating circumstances.  Ms Simpson's evidence was that she believed Ms Jordan "…had used the words "extenuating circumstances", which Shayna pointed out that it's a genuine reason, and it was Ms Jordan that was explaining an example of what it would be."[96]  However, whilst Ms Jordan initially denied using that phrase, her evidence was ultimately that she couldn't recall using the phrase "extenuating circumstances" but rather "…I recall using the words in the policy, which talk about genuine reason, need."[97]

    [96] T 3-25, L 13-28.

    [97] T 4-17, L 30-31.

  3. A fair and balanced approach must be applied to the careful consideration of an employee's genuine reason / need via a transparent process in such circumstances.  I am not at all convinced that occurred in this case.  There appeared to me to be undue emphasis on what was good for the HHS, with the consideration of Ms Robb's genuine reason / need much deprioritised in all that.  For instance, I do not accept that Ms Jordan's remarks below reflect the appropriate balance that ought be struck:

    So – and I think I explained this to Ms Robb at the time, its got to be operationally convenient for the organisation.  Obviously, the – the worker has to be able to – you know, accommodate that as well – be happy to do that as well.[98]
    …
    …an employee's personal financial circumstances are not a concern for the health service.  That's their concerns.[99]

    Were Ms Robb's level of absences high and / or required management?

    [98] T 4-6, L 1-6.

    [99] T 4-20, L 22-41.

    Applicant's position and supporting evidence

  4. The Applicant submitted that:

    ·the Respondent's concerns about Ms Robb's attendance was no reason to unilaterally enforce the contract variation;

    ·Ms Robb was never formally managed under the Respondent's Attendance Management Procedure;

·as at the 17 February 2021 meeting when Ms Robb's attendance was raised, she had only accessed paid leave from her accrued sick leave balance in the six months prior;

·at the 17 February 2021 meeting, Ms Robb advised that she had a solution to her carer's leave absences as her mother-in-law had recently retired and could care for her son when childcare could not accept him due to illness;

·this was an effective solution because following Ms Robb's return from leave on 22 March 2021 and up to the commencement of her parental leave on 3 May 2021, Ms Robb did not access any sick or carer's leave; and

·Ms Robb's use of her own paid sick leave accruals was no reason to deny her a return to her substantive full-time contract of employment.[100]

[100] Applicant's closing submissions, 29 July 2022, [95]-[100].

Respondent's position and supporting evidence

  1. In summary, the Respondent's position was that Ms Robb's absences were "not an insignificant amount" and so had concerns they would not be able to adequately staff the work unit if the temporary nurse ceased.  That was particularly sharp given Ms Simpson could not "call on casual pool or nursing support for experienced perioperative staff."[101] 

    [101] T 2-80, L 9-10.

  2. Specifically, the Respondent submitted that:

    ·the Respondent rejects the suggestion Ms Robb's use of sick leave was the reason to refuse her request to return to full time hours.  The reason Ms Robb's request was refused was because it was non-compliant with the policy;

    ·Ms Robb had accessed a not insignificant amount of sick leave in circumstances where she was working part time;

·Ms Simpson's evidence is that if Ms Robb had reverted to full time and required sick leave, then Ms Simpson would have been required to find emergent leave cover from existing staff; and

·it is reasonable that if an employee is having difficulties with attendance on a part time arrangement, then it would be normal for there to be some concern if the employee was seeking to return to full time work.[102]

[102] Respondent's closing submissions, 23 August 2022, 22-23.

Finding

  1. If there were a legitimate concern about Ms Robb's absences, that ought have been separately managed by the Respondent.

  2. It was not appropriate to introduce such alleged concerns as part of a discussion about a disputed contract variation. 

  3. To do so has unfortunately created some appearance that Ms Robb's caring responsibilities have (in part) impeded the Respondent's preparedness to resolve the disputed contract terms.

    Consideration

  4. For the reasons that follow, I do not believe that Ms Robb agreed to a six month part-time contract in the disputed period between 25 January 2021 to 11 July 2021:

    ·as I have explained at [38] – [54] of this Decision, the alleged meeting on 24 November 2020 did not take place between Ms Graham and Ms Robb; and

    ·only at the meeting with Ms Simpson on 19 January 2021 did Ms Robb propose a part time contract variation for a three month period ending 25 April 2021, consistent with her intentions that it lapse prior to the commencement of her parental leave.

  5. If I am wrong on that point, and Ms Robb did instead indicate her agreement to the proposed six month part-time arrangement at a meeting held with Ms Graham on 24 November 2020, I find that it was not a formal binding agreement because: 

    ·despite Ms Simpson signing the EMR on behalf of Ms Robb (on a day when she was absent on carer's leave), in order to begin the process of obtaining authorisations from various delegates for administrative convenience, when the proposed contract variation ultimately landed in Ms Robb's inbox, its status was that of an 'offer' for Ms Robb to either accept or reject.  Ms Robb did not accept it;

    ·it is not disputed that Ms Robb indicated her objection to the offer proposed verbally in a meeting with Ms Simpson on 19 January 2021.  That was prior to the roster commencing on 25 January 2021;

·as a result of her conversation with Ms Simpson, Ms Robb understood the situation to be sorted and awaited a replacement three-month part-time contract to be prepared for her acceptance. For her part, Ms Simpson recalled the outcome of that meeting differently.  She understood that any shortening of Ms Robb's contract variation needed to be first checked with HR.  The fact of Ms Robb's pregnancy alerted Ms Simpson to a potential conflict with the Parental Leave Policy;

·regardless of whose recollection of the 19 January 2021 meeting was accurate, the fact remained that Ms Robb had verbally expressed her objection to the six-month part-time offer made – and had instead made a counter proposal of a three-month part-time contract variation.  As at 19 January 2021, it was clear that Ms Robb had not accepted the offer of the six month part-time contract variation; and

·the terms of the 'Manager Certification' section of the EMR make clear that it is not a formal binding agreement until signed and accepted by the worker herself.  Ms Robb did not accept the proposed arrangement.  In fact, Ms Robb declined it on 1 March 2021 via her sister, Ms Fowler on her behalf.

  1. As there was no agreement or acceptance of any part time contract extension for the disputed period, and no binding contract variation in place, I find that Ms Robb ought to have defaulted to her substantive full time position as at 25 January 2021.

  2. I find that Ms Robb's working arrangement for the period 25 January 2021 to 11 July 2021 should not have been part time at 0.5 FTE.  Rather, Ms Robb's working arrangement should have been 1 FTE.

    Conclusion

  3. For the reasons given above, the answer to the question for arbitration is "full-time at 1 FTE".

    Order

  4. I make the following order:

    As to the question for arbitration:

    Whether Ms Robb's working arrangement, for the period of 25 January 2021 to 11 July 2021, should have been part-time at 0.5 FTE or full-time at 1 FTE?

    The answer is:

    Ms Robb's working arrangement, for the period of 25 January 2021 to 11 July 2021, should have been full-time at 1 FTE.


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