Robin Hansen v Calvary Health Care Adelaide Limited

[2016] FWC 3472

[2016] FWC 3472 [Note: An appeal pursuant to s.604 (C2016/4060) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robin Hansen
v
Calvary Health Care Adelaide Limited
(U2015/16189)

COMMISSIONER PLATT ADELAIDE, 31 MAY 2016

Section 399A application - conduct of applicant - breach of order - application dismissed.

Background

[1] This decision deals with an application by Calvary Heath Care Adelaide Limited (Calvary) to dismiss an unfair dismissal application, pursuant to s.399A of the Fair Work Act 2009 (the Act).

[2] On 24 November 2015, Ms Hansen lodged an application pursuant to s.394 of the Act, seeking a remedy in relation to the termination of her employment with Calvary on 3 November 2015.

[3] In her substantive application, Ms Hansen alleges that the dismissal was unfair because:

● prior to the dismissal, she was involved in an internal staff dispute which arose after she directed an employee to lodge a medication error report and recorded the incident;
● she was subsequently bullied and harassed by work colleagues and sought management assistance in conducting a conference between her and the impacted staff;
● Ms Hansen was informed of bullying allegations made against her but was not warned in respect of her behaviour or given an opportunity to amend her behaviour;
● Calvary’s investigation was inadequate and a key witness was not interviewed;
● her responses to the allegations were not adequately considered; and
● Calvary did not comply with its Bullying and Harassment Policy and Procedure.

[4] In Calvary’s response to Ms Hansen’s application, it contends that the dismissal was not unfair as:

● it did not arise from the medication error but was as a result of allegations of verbal and electronic (text messages) bullying and harassment towards work colleagues;

● Ms Hansen’s conduct during the investigation was extremely inappropriate and inflammatory, irreparably damaging the employment relationship; and

● after Calvary provided details of the allegation, Ms Hansen contacted some of the persons involved who she believed had made false accusations.

[5] The matter was allocated to me on 14 January 2016 and listed for directions by teleconference on 28 January 2016.

[6] At the directions conference, Ms Hansen was represented by Mr McMahon from the Australian Nursing and Midwifery Federation, Calvary was represented by Mr Walsh from DW Fox Tucker. During this conference, the representatives sought the making of a consent order (Order), restricting Ms Hansen from contacting two persons whom I understood were potential witnesses in the matter.

[7] On 28 January 2016, directions were issued and the matter was listed for hearing on 4 and 5 April 2016. In addition, pursuant to s.589 of the Act, the following Order was made by consent:

“A. Until further order, pursuant to section 589 of the Fair Work Act 2009 the Applicant is restrained from in any way:

1. communicating, whether orally or in writing, directly or indirectly, with Samantha Lee Barber and/or DL 1; and/or

2. contacting or attempting to contact whether orally or in writing, directly or indirectly, Samantha Lee Barber and/or DL; and/or

3. attending at, or stopping in public areas in the immediate vicinity of, the personal residences of Samantha Lee Barber and/or DL.

A. Order A above shall not prevent the Applicant’s legal representative(s) from communicating with Samantha Lee Barber and/or DL in connection with the proper conduct of the Proceedings on behalf of the Applicant.

B. This order will operate on and from 28 January 2016.”

[8] On 7 April 2016, as a result of an alleged breach of this Order by Ms Hansen, Calvary made an application pursuant to s.399A of the Act, seeking that the Commission make orders:

● dismissing Ms Hansen’s unfair dismissal; and
● awarding costs to the Respondent.

[9] In its application, Calvary contended that Ms Hansen repeatedly breached the order, stating that Ms Hansen:

● drove her vehicle past the residence of Ms Barber on 18 occasions between 17 February 2016 and 27 March 2016, shouting out loudly, in some cases using expletives which could be heard by Ms Barber;
● on the 27 and 28 March 2016, was filmed driving past Ms Barber’s residence and appeared to be yelling; and
● on 29 March and 6 April 2016, drove past Ms Barber’s residence shouting out loudly and in some cases using expletives which could be heard by Ms Barber.

[10] The s.399A application was listed for hearing on Friday 15 April 2016 and continued on 27 April 2016.

Evidence before the Commission

[11] At the hearing, Calvary relied upon the witness statements and oral evidence of:

● Mr Paul Hocking, License Inquiry Agent; and

● Ms Samantha Lee Barber, a Calvary Health Care employee and a person named in the Order.

[12] Mr Hansen supplied a witness statement and gave oral evidence in this matter. She also relied on the statement and oral evidence of Ms Shirley Mather, her mother.

Evidence of Mr Hocking

[13] Mr Hocking is a Licensed Inquiry Agent engaged by Quark and Associates and was hired by Calvary to conduct surveillance of Ms Barber’s residence.

[14] Mr Hocking supplied a report to Calvary summarising his observations along with video footage. The report details the location of Ms Barber’s residence and a description of the boundary, including relevant windows and fences. Both the report and video footage were tendered at the hearing. The report also contains observations made by a colleague of Mr Hocking who was not called to give evidence. I have disregarded those portions of the report where the evidence was disputed.

[15] Mr Hocking gave evidence (which was corroborated by video footage) that he observed Ms Hansen driving her car past Ms Barber’s residence at about 6.28 pm on 27 March 2016 and 6.23 pm on 28 March 2016, whilst leaning towards the passenger side of the car yelling in the direction of Ms Barber’s home.

[16] Whilst there was some debate as to the colour of the vehicle, Ms Hansen accepted that the vehicle observed by Mr Hocking and recorded in the video was hers and that she was the driver on 27 and 28 March 2016.

[17] Having observed the video recording of the 28 March 2016, it is evident that Ms Hansen was yelling towards Ms Barber’s residence. It appears that the word yelled began with the letter “F.” Mr Hocking contended that Ms Hansen’s car window was open while she was yelling. I accept Mr Hocking’s evidence.

Evidence of Ms Barber

[18] Ms Barber is an enrolled nurse employed by Calvary and worked with Ms Hansen until her dismissal. Ms Barber was proposed to be called by Calvary in the forthcoming arbitration to give evidence in respect of the dismissal of Ms Hansen.

[19] Mr Barber gave evidence that she heard a car drive past her residence and a voice which she recognised to be Ms Hansen’s yell out (on some occasions using expletives) on 26 occasions between 17 February and 1 April 2016 (including the two events recorded by Mr Hocking).

[20] Ms Barber said the yelling was so loud that on occasion, she could hear it from inside her residence.

[21] Ms Barber installed video monitoring equipment to capture vision of the road outside her house. When Ms Barber heard a person yell out as they drove past, Ms Barber recorded the time from her mobile phone and correlated that time with the video recording. Ms Barber contended that she recognised the voice she heard as that of Ms Hansen.

[22] In cross examination, Ms Barber conceded that the times detailed in her statement may not have been accurate and that on two of these occasions it may have been Ms Hansen’s mother who was the driver of the vehicle

[23] The video recordings and a summary of the times when Ms Hansen was alleged to have driven past were tendered.

[24] The recordings (which are not as close up as Mr Hocking’s footage) show Ms Hansen’s vehicle travelling past Ms Barber’s residence on 11 occasions between 2 April and 8 April 2016.

[25] Ms Barber alleges she heard Ms Hansen say words including, “fucking bitch,” “fucking liar,” “fucking arsehole,” “you piece of shit” “up yours bitch” and “die you piece of shit.” 2

[26] On 7 April, 2016, Ms Hansen was served a copy of the s.399A application by email and post. On 11 April 2016, Ms Barber heard Ms Hansen drive past and yell out something which was unclear.

[27] On 12 April 2016, Ms Barber heard Ms Hansen drive past her residence 8 times, playing a song she now knows was released by Tom Petty and the Heartbreakers titled “I won’t back down.” 3

[28] Ms Barber said she would not have been concerned if Ms Hansen simply drove past her residence.

[29] Ms Barber suffered more frequent migraines and took special leave from her employment as a result of the events that had unfolded.

Evidence of Ms Hansen

[30] Ms Hansen was aware of the Order made on 28 January 2016. 4 Ms Hansen contended that her understanding of the Order was that if she did not stop outside Ms Barber’s residence, she was compliant with the Order.

[31] Ms Hansen said that she used to be friends with Ms Barber. This was not disputed. It appears that the friendship deteriorated after Ms Hansen’s dismissal, as a result of her becoming aware of the allegations of bullying that had been made against her by Ms Barber.

[32] Ms Hansen gave evidence that she regularly travels down the street where Ms Barber lives to attend to her horse, go to dog training, buy petrol and shop at a nearby location. Ms Hansen also gave evidence that she needs to drive past Ms Barber’s residence in order to access a traffic light controlled junction on Golden Grove Road.

[33] Ms Hansen concedes that she plays music very loudly, this was corroborated by her mother who said she had to turn the volume down whenever she used Ms Hansen’s car.

[34] Ms Hansen argued that she has said to herself whilst driving “you rotten little bitch” 5 but rejected the proposition that she yelled the same out of the car window. Ms Hansen contended that these words were said to herself in the car and that she did not intend for anyone else to hear them.

[35] Ms Hansen contended that when Mr Hocking observed her she may have been singing or talking to herself loudly. Ms Hansen said she may have had the window down if the weather was fine or if she was trying to remove a fly from her car.

[36] Ms Hansen said when she drove past Ms Barber’s residence it reminded her of her situation which could have resulted in her voicing her discontent with Ms Barber to herself. 6

[37] Ms Hansen does not dispute the majority of occasions that Ms Barber alleges she drove past her residence, but states that some of them are wrong. As detailed above, Ms Barber concedes as much.

[38] With respect to the video taken by Mr Hocking, Ms Hansen said that when she was stressed she would, in the privacy of her own car, talk to herself to let off steam. 7

[39] Ms Hansen contended that she did not yell out the window of her car at Ms Barber, 8 but some of the language Ms Barber heard may have been her exclaiming “oh shit” after she had spilled a drink going around a corner.9

[40] Ms Hansen conceded that at times she felt “very, very, very, very angry” 10 about what she perceived Calvary was doing to her, and may have “vented” from time to time.11

[41] In cross examination, Ms Hansen said she drove past Ms Barber’s residence on 12 April 2016, playing the Tom Petty and the Heartbreakers album but not any particular song. Ms Hansen denied solely playing the “I won’t back down” song.

[42] Ms Hansen admitted to returning a letter sent to her by Mr Patrick Walsh of DW Fox Tucker on behalf of Calvary on 12 April 2016, after writing on the outside of the envelope:

“UP YOURS CUNT – NO SURRENDER” and “SUE ME 4 DEFAM Id love to get you suits in a court of any kind, I dare you.” 12

[43] Ms Hansen also admitted to placing a sign near the street where Ms Barber lives with the words:

“CALVARY NURSE BULLIED/FIRED 4 REPORTING DRUG ERRORS. I PASSED LIE DETECTOR TEST. LIARS STILL WORK THERE.”

Evidence of Ms Mather

[44] Ms Mather is Ms Hansen’s mother. Ms Hansen resides at Ms Mather’s house which is approximately 700 metres from Ms Barber’s residence. Ms Mather gave evidence that on 8 April 2016, she used Ms Hansen’s vehicle in the afternoon to go to the Redwood Park Shopping Centre to purchase some vegetables. Ms Mather thought that she left at about 1.00 pm but could have been later and she returned no later than 2.00 pm. Ms Mather said that Ms Hansen would not have used the vehicle at any other time on that day.

Findings in respect of the evidence

[45] In reviewing the evidence and making my findings I have adopted the principle in Briginshaw v Briginshaw 13which states that a decision maker should proceed cautiously where a serious allegation has been made and that if the decision is likely to produce grave consequences. Briginshaw requires that the evidence should be of high probative value.

[46] It is clear that since Ms Hansen ascertained Ms Barber’s evidence in the substantive matter, her conduct towards her has been hostile. Ms Hansen is firmly convinced that Ms Barber is lying, at the urging of Calvary, to protect her on-going employment. Ms Hansen gave evidence that she was considering suing Ms Barber for defamation and had repeatedly sought a mediation conference where she could question Ms Barber to show that she was lying.

[47] During cross examination, Ms Hansen displayed a high level of animosity towards Ms Barber, called her “honey” 14, “darling”15 and “princess.”16 Ms Hansen accused Ms Barber of being a liar17 and asking her if she was “proud of herself.”18 Ms Hansen was afforded a considerable amount of latitude in her cross examination of Ms Barber. To her credit, Ms Barber made concessions as to the possibility of the time of the events not being accurate and conceded that it may have been possible in some instances that it was not Ms Hansen that drove past. Ms Barber was however, unshaken in her belief that on numerous occasions, a person who sounded like Ms Hansen drove past her residence and yelled profane language. This was supported by her own video footage and the footage obtained by Mr Hocking. I accept Ms Barber as a witness of truth. I also accept that she felt she was being harassed and felt threatened by Ms Hansen and the resulting stress impacted on her to such an extent that she had to take leave from work.

[48] In assessing Mr Hansen’s conduct before me, I have made some allowance for Ms Hansen’s unfamiliarity with Commission processes and her elevated emotional state. I also warned Ms Hansen that her conduct would be taken into account. Ms Hansen’s conduct in the witness box and at the bar table ranged from aggressive, defiant and belligerent to crying and expressing suicidal thoughts. I find that Ms Hansen was an extremely poor witness. Many of her explanations for her conduct were implausible. Insofar as her evidence conflicts with that of the other witnesses (noting Ms Barber’s concessions), I reject her account.

[49] I prefer the evidence of Mr Hocking and Ms Barber concerning Ms Hansen’s conduct whilst driving past Ms Barber’s residence.

[50] I reject Ms Hansen’s contention that she might have been speaking to herself, singing, or that she had spilled a drink in her car. These explanations were presented in a belligerent manner and are implausible when considering the frequency of the conduct and the distance between the vehicle and Ms Barber’s residence. I find that Ms Hansen drove past Ms Barber's residence on over 30 separate occasions since the Order was granted and deliberately yelled obscenities and/or made threats towards Ms Barber.

[51] In respect of the events of 12 April 2016, where Ms Hansen is accused of driving past Ms Barber’s residence playing the song “I won’t back down.” Ms Hansen accepted that she had a Tom Petty and the Heartbreakers disk in her car CD player but denies repeatedly playing that song. I prefer the evidence of Ms Barber to that of Ms Hansen in this regard and find that after having received a copy of the application presently before me, Ms Hansen repeatedly drove past Ms Barber’s residence loudly playing the song, “I won’t back down.” I reject Ms Hansen’s assertion that she was playing the entire Tom Petty CD and that the song in question just happened to be playing at the time she drove past Ms Barber’s residence.

[52] I find that Ms Hansen embarked on a course of conduct designed to undermine and/or intimidate Ms Barber prior to her giving evidence.

[53] Ms Hansen contended that as she did not stop outside Ms Barber’s residence and therefore, she was not in breach of the Order. 19 This evidence shows that Ms Hansen was aware of the Order. Based on the conduct of Ms Hansen during the trial, I believe that she understood the meaning of the Order. The fact that Ms Hansen did not stop outside Ms Barber’s residence does not mean the Order was not breached.

[54] If Ms Hansen’s conduct only amounted to her driving past Ms Barber’s residence in a normal fashion in order to access the nearby traffic light intersection, I do not believe this application would have been made and I would not be contemplating making an order to dismiss the substantive application.

Did Ms Hansen fail to comply with the Order of the Commission?

[55] The Order expressly prevented Ms Hansen from communicating with Ms Barber. Communication is defined as “the imparting or exchanging of information by speaking, writing, or using some other medium.” 20 Contact is another, more direct expression of communication.

[56] As per my findings of fact, Ms Hansen’s repeated verbal abuse directed towards Ms Barber and the playing of the song “I won’t back down” reflects her attempts to convey a message to Ms Barber and is in breach of the requirement not to contact and/or attempt to contact Ms Barber and is therefore, in breach of the Order.

[57] The Order required that Ms Hansen not attend or stop at public areas in the immediate vicinity of the personal residence of Ms Barber.

[58] While Ms Hansen did not stop her car outside the residence of Ms Barber, her actions in repeatedly driving past and yelling profanities and playing the “I won’t back down” song indicate a conscious effort by Ms Barber to “attend” the near vicinity of Ms Barber’s residence for the purpose of communicating with Ms Barber. On each occasion, (not including the period when Ms Mather had control of the vehicle) Ms Hansen was in breach of the Order.

[59] Ms Barber admitted placing the sign referred to in paragraph [43] near Ms Barber’s street. 21 In my view, this sign was placed in a position where Ms Hansen intended it to be seen by Ms Barber. This was an attempt by Ms Hansen to communicate her views on the matter to Ms Barber. The content of the sign was consistent with Ms Hansen’s views that Ms Barber and another had lied. This conduct is a further breach of the Order.

[60] Ms Hansen’s conduct in returning Mr Walsh’s letter with her thoughts on the matter expressed on the cover, does not represent a breach of the Order. However, I note that the sentiments expressed are consistent with the allegations of the communications made from her vehicle as she drove past Ms Barber’s residence.

[61] Section 399A of the Act gives the Commission the power to dismiss an application if an applicant has unreasonably breached an Order. It relevantly states:

“399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
(b) failed to comply with a direction or order of the FWC relating to the application; or
(c) failed to discontinue the application after a settlement agreement has been concluded.

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.”

[62] I am satisfied that as a result of the repeated conduct toward Ms Barber, and consistent with my own observations of Ms Hansen, that the breaches were intended and not inadvertent. I find that this conduct was intended to impact on Ms Barber giving evidence in the unfair dismissal matter.

[63] The fact that the conduct continued after Ms Hansen was provided with a copy of the s.399A Application (and thus was on notice that her conduct was alleged to be a breach), highlights Ms Hansen’s blatant disregard for the Order.

[64] The Explanatory Memorandum to the Fair Work Amendment Bill 2012 (Cth) 22 noted that:

“the power to dismiss an unfair dismissal application in these circumstances is not intended to prevent an applicant from robustly pursuing a legitimate unfair dismissal claim. Rather, the amendment was intended to address the small proportion of applicants who may pursue claims in an improper or unreasonable manner.”

[65] Ms Hansen conduct is not consistent with the robust pursuit of her claim. Based on my findings of fact and my own observations, I am satisfied that Ms Hansen has breached the Order made by me on 28 January 2016 and that Ms Hansen pursued her unfair dismissal application in an improper and unreasonable manner.

[66] Ms Hansen’s conduct is not trivial or justified by a heightened emotional state. As stated by Lord Denning “there can be no greater contempt than to intimidate a witness before he gives his evidence…” 23

Conclusion

[67] I am satisfied that Ms Hansen’s conduct is so abhorrent that it is appropriate to dismiss her unfair dismissal application. An Order 24 to that effect will be issued in conjunction with this decision.

[68] I note that Calvary have applied for costs in this matter however, as this application was not fully argued before me, I have not determined that matter. In the event that Calvary wishes to pursue its application and advises the Commission within 28 days of the date of this decision, I will relist the matter for directions and further hearing.

COMMISSIONER

Appearances:

B Duggan, of DW Fox Tucker, on behalf the Applicant.

R Hansen, the Respondent on her own behalf.

Hearing:

2016

Adelaide

April 15 and 27

 1   Initials used for privacy reasons.

 2   Exhibit C3 at [4] and [8].

 3 Exhibit C3 at [1].

 4   PN1152.

 5   PN989.

 6   PN1168.

 7   PN992.

 8   PN1014.

 9   PN785.

 10   PN1231.

 11   PN1436.

 12   PN1843-PN1850.

 13 [1938] HCA 34.

 14   PN527.

 15   PN727.

 16   PN1388.

 17   PN540.

 18   PN910.

 19   PN685.

 20   Oxford Dictionary Online.

 21   PN1864.

 22 At [162].

 23  Attorney-General v. Butterworth and Others [1963] 1 Q.B. 696 at [719].

 24   PR580948.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR580947>