Rothnie v St John of God Hospital (No.2)
[2017] FCCA 3129
•14 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ROTHNIE v ST JOHN OF GOD HOSPITAL (No.2) | [2017] FCCA 3129 |
| Catchwords: INDUSTRIAL LAW – Alleged adverse action – warning letter – termination of employment – whether alleged adverse action taken for a prohibited reason. |
| Legislation: Criminal Code (WA), ss.338A, 397, 539 Fair Work Act 2009 (Cth), ss.3(e), 340, 341, 342, 361 Occupational Safety and Health Act 1984 (WA), ss.19(1)(d) and (e), 19A, 20(1) |
| Cases cited: Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322; (2014) 312 ALR 551 Clouston & Co Limited v Corry [1906] AC 122 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553; [1989] Aust Torts Reports 80-289; [1990] 2 Medical Law Reports 103 Evans v Trilab Pty Ltd [2014] FCCA 2464; (2014) 66 AILR 102-287 Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362; (1975) 49 ALJR 281; (1975) 6 ALR 311 Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] NSWSC 104; (2007) 69 NSWLR 198; (2007) 167 IR 121; (2007); 59 AILR 200-306 V Lambropoulos, “Common Law and General Protections” (2016) 7 WR 118 |
| Applicant: | IAN DAVID ROTHNIE |
| Respondent: | ST JOHN OF GOD HOSPITAL (SUBIACO) |
| File Number: | PEG 80 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 1, 2 and 3 September 2014 and 9 and 10 April 2015 |
| Date of Last Submission: | 17 April 2015 |
| Delivered at: | Perth |
| Delivered on: | 14 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr T Galic |
| Solicitors for the Applicant: | TGC Lawyers |
| Counsel for the Respondent: | Mr TM Clavey |
| Solicitors for the Respondent: | Clyde & Co |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 80 of 2013
| IAN DAVID ROTHNIE |
Applicant
And
| ST JOHN OF GOD HOSPITAL (SUBIACO) |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under the Fair Work Act 2009 (Cth) (“FW Act”) by the applicant, Ian David Rothnie (“Mr Rothnie”) alleging adverse action in contravention of general protections provisions of the FW Act by the respondent, St John of God Hospital (Subiaco) (“Hospital”) in relation to:
a)a warning letter issued to Mr Rothnie on 16 December 2011 by the Hospital (“Letter of Warning”), which the Hospital refused to retract; and
b)the termination of Mr Rothnie’s employment with the Hospital on 24 September 2012.
Evidence and submissions
The Court has had regard to the evidence as a whole, including:
a)the affidavits filed for Mr Rothnie, namely:
i)Mr Rothnie’s affidavit sworn 4 September 2013 (“Rothnie September 2013 Affidavit”);
ii)Mr Rothnie’s affidavit sworn 11 July 2014 (“Rothnie July 2014 Affidavit”);
iii)Mr Rothnie’s affidavit sworn 20 August 2014 (“Rothnie August 2014 Affidavit”); and
iv)the affidavit of Lee Ah Kow (“Mr Lee”) affirmed 20 August 2014 (“Lee Affidavit”);
b)the affidavits filed on behalf of the Hospital being:
i)the affidavit of Dr Shane Patrick Kelly (“Dr Kelly”) affirmed 7 October 2013 (“Kelly October 2013 Affidavit”);
ii)the affidavit of Dr Kelly affirmed 26 August 2014 (“Kelly August 2014 Affidavit”);
iii)the affidavit of Shellee Raylene Chapman (“Ms Chapman”) affirmed 4 October 2013 (“Chapman October 2013 Affidavit”);
iv)Ms Chapman’s affidavit affirmed 22 August 2014 (“Chapman August 2014 Affidavit”);
v)the affidavit of Stephen Peter Gaffey (“Mr Gaffey”) sworn 7 October 2013 (“Gaffey October 2013 Affidavit”);
vi)the affidavit of Mr Gaffey sworn 29 August 2014 (“Gaffey August 2014 Affidavit”;
vii)the affidavit of Darren Jones (“Mr Jones”) sworn 7 October 2013 (“Jones Affidavit”); and
viii)the affidavit of Stephen Ashley Cooper (“Mr Cooper”) sworn 4 October 2013 (“Cooper Affidavit”);
c)the exhibits tendered during the proceedings; and
d)the transcript of the proceedings (“Transcript”), which the Court has read, and has re-read prior to finalising these Reasons for Judgment. Unfortunately, the page numbering of the Transcript is not continuous over the five days, with numbering commencing at page 1 on 1 September 2014 and continuing to the end of 2 September 2014, and then re-commencing at page 1 on 3 September 2014, and re-commencing at page 1 on 9 April 2015 and continuing on 10 April 2015. The Court will therefore refer to the Transcript of 1, 2 and 3 September 2014 as “TD1”, “TD2” and “TD3” respectively, and to the Transcript of 9 and 10 April 2015 as “TD4” and “TD5” respectively.
Evidence was led orally from Simon Giles Edward Lack (“Mr Lack”) and Martin Anthony Purvis (“Mr Purvis”) neither of whom had affidavits filed on their behalf.
The Court notes that various of the affidavits relied upon in these proceedings were subject to objections, and that those objections were dealt with in the course of the hearing.
The Court has also read and had regard to the Mr Rothnie’s Summary of Material Facts and the Hospital’s Summary of Material Facts filed in these proceedings.
Persons involved
It is convenient at the outset to set out the names and positions of the primary persons involved in the events the subject of these proceedings, as follows:
a)Mr Rothnie, who is the applicant and who was a Refrigeration and Air-Conditioning Technician at the Hospital;
b)Mr Lee, who was also a Refrigeration and Air-Conditioning Technician at the Hospital;
c)Mr Lack, who was employed by the Hospital until October 2012, who was an Electrician by trade, and a supervisor responsible for the day-to-day running of Hospital maintenance activities: TD2 at page 148;
d)Dr Kelly, who was the Chief Executive Officer of the Hospital;
e)Ms Chapman, who was the Director of Workforce Development at the Hospital;
f)Mr Gaffey, who was the Chief Engineer at the Hospital;
g)Mr Jones, who was the Human Resources Manager at the Hospital;
h)Mr Cooper, who was the Director of Corporate Services at the Hospital; and
i)Mr Purvis, an electrician at the Hospital, who was also the occupational safety and health officer for the Hospital’s Engineering Department: TD4 at page 8.
Law
It is convenient at this stage to set out the law with respect to adverse action proceedings, and what must be proven by the respective parties.
In the context of adverse action proceedings it is for an applicant to assert and establish that:
a)he exercises the workplace rights pleaded in his statement of claim;
b)the conduct complained about in fact occurred; and
c)that conduct constitutes adverse action under s.342(1) of the FW Act.
If Mr Rothnie proves the conduct and alleges that the conduct was carried out for a prohibited reason, it is for the Hospital to prove, on the balance of probabilities, that it was not motivated by an impermissible reason: FW Act, s.361(1); Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647 (“Barclay”); Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34; (1999) 94 IR 244; (1999) 165 ALR 67 at [221] per RD Nicholson J (“Geraldton Port Authority”).
In Barclay the High Court said:
a)the task of a court in a proceeding alleging a contravention by reason of adverse action “… is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason …”: Barclay at [5] per French CJ and Crennan J;
b)adverse action will have been found to have been taken if the prohibited reason, or reasons including the prohibited reason, for the action was a “substantial and operative reason” for the employer taking adverse action against the employee: Barclay at [104] per Gummow and Hayne JJ;
c)the test is whether adverse action has been taken because of a prohibited reason: Barclay at [129] per Gummow and Hayne JJ; and
d)“[e]xamining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action”: Barclay at [140] per Heydon J.
The use of the word “because” in s.340(1) of the FW Act requires that a causal link be established between the adverse action complained of and the matters referred to in s.340 of the FW Act: Russell v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250 at [60] per Foster J (“Russell”). In Russell at [63] per Foster J the Federal Court observed that it was sufficient if the prohibited reason is one of several reasons for the taking of the action, but the prohibited reason “must have operated as a substantial and operative factor in the taking of the adverse action”.
In relation to the evidence bearing upon the decision made by an employer:
a)French CJ and Crennan J in Barclay said:
i)at [41] that “… why an employer took adverse action against an employee is a question of fact …”;
ii)at [44] that “… direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains ‘why was the adverse action taken?’”; and
iii)at [45] that:
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.
b)Gummow and Hayne JJ in Barclay at [127] said that:
In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.
This Court in Maslen v Core Drilling Services Pty Ltd & Anor [2013] FCCA 460 at [17] per Judge Lucev in relation to the approach adopted in Barclay said that it suggested that:
… the decision-maker’s subjective intention, if accepted by the primary judge in the context of relevant objective facts, will provide a defence to an adverse action claim. Mere assertion is not enough, however, and whether an employer took adverse action for a prohibited reason is a question of fact for a primary judge to determine on the evidence, bearing in mind the employer bears an onus to show that it did not take adverse action for a prohibited reason.
In Barclay the High Court also observed that the purpose of s.361 of the FW Act was to place on the defendant employer the onus of proving that which lies peculiarly within the employer’s own knowledge: Barclay at [50] per French CJ and Crennan J, at [86] per Gummow and Hayne JJ, and at [149] per Heydon J, all adopting what was said in General Motors-Holden’s Pty Ltd v Bowling (1976) 136 CLR 676; (1976) 51 ALJR 235; (1976) 12 ALR 605 at 617 per Mason J.
Some background facts
Before dealing with the reasons for the issuance of the Letter of Warning and for the Termination, it is convenient to set out some background facts generally relevant to both of those issues.
Contract of employment
On 5 November 2009 Mr Rothnie accepted a position of Refrigeration and Air-Conditioning Technician offered to him by the Hospital, the offer of employment being subject to the terms and conditions referred to in the letter of offer, which included the The St John of God Hospital, Subiaco Maintenance Union Collective Agreement 2007 (“2007 Agreement”), and was accepted and signed by Mr Rothnie on 5 November 2009 (“Contract of Employment”): Exhibit 1.
The Contract of Employment provided for:
a)Mr Rothnie to report to the Chief Engineer, Mr Gaffey;
b)notice of termination by Mr Rothnie giving two weeks’ notice in writing after the completion of his three month probationary period; and
c)Mr Rothnie not to divulge confidential information or the content of any document during the period of his employment, pursuant to provisions which provided as follows:
Confidentiality: For the purpose of this Agreement:
“Confidential Information” means and includes the contents of all Documents and all Trade Secrets and all information of every kind and description relating to St John of God Healthcare Inc or the Hospital or to the operations, dealings, finances, transaction, technology, general affairs, patients, clients or customers of the Hospital or the Service or any communication, record, data or other material relating to the Hospital or the Service;
“Document” means and includes all accounts, manuals, plans, processes, records, software, statements, strategies, lists and records of patients, clients, customers and practitioners, correspondence, letters, papers, books, records and schedules of tenancies, information and material relating to market research and promotion of St John of God Healthcare and the Hospital and the Service;
“Service” means the service provided by the department; and
“Trade Secrets” means any invention, process or system owned or developed by St John of God Healthcare Inc or the Hospital the use of which by an employee of the third party would breach a legal, equitable or fiduciary obligation owed by that employee or third party to St John of God Healthcare Inc.
It is a condition of your employment that you will not at any time whether during your employment or after the cessation of your employment, divulge any Confidential Information or Trade Secret or the content of any Document which may come to your knowledge whether during or after the expiration of the term of your employment.
The condition above does not apply to any disclosure, which is:
(a)required by law or a court;
(b)necessary or required in the proper performance of your duties; or
(c)made as the result of an authorisation or direction of the Hospital.
It is a further condition that you will take all reasonable precautions to ensure that in the disclosure of any information no more information is provided that is required and that the disclosure will be limited to those persons to whom such disclosure has been approved.
The 2007 Agreement was subsequently cancelled and replaced by the St John of God Health Care Maintenance Caregivers Agreement 2011 (“2011 Agreement”): 2011 Agreement at cl.4; Exhibit 3. The 2011 Agreement applies to relevant employment (which included Mr Rothnie’s employment with the Hospital) by force of law pursuant to s.539 of the FW Act.
Pursuant to the terms of the 2011 Agreement:
a)it is a comprehensive agreement, provided for as follows in the 2011 Agreement at cl.5:
It is the intention of the parties that this Agreement be a comprehensive document applying to Caregivers covered by this Agreement to the exclusion of all industrial agreements including as provided for in the Act. It is further intended that each provision of this Agreement is to be interpreted as not containing unlawful content and that each provision only operates in a manner that would not constitute unlawful content.
b)“Caregiver” is defined in cl.6(1)(a) of the 2011 Agreement to mean “an employee” of the Hospital;
c)information relating to the Hospital or its facilities or activities were not to be released or divulged by Mr Rothnie to a third party, except in the proper performance of his obligations under the 2011 Agreement, or a relevant Act, or pursuant to his right to seek advice or representation from the union or other representative: 2011 Agreement at cl.12;
d)Mr Rothnie was required to work in accordance with his position description and the Hospital’s policies and procedures: 2011 Agreement at cl.7;
e)the Hospital was entitled to “direct” Mr Rothnie “to carry out such duties as are within the limits of … [his] skill, competence or training, provided that such duties are not designed to promote de-skilling”: 2011 Agreement at cl.7;
f)termination of Mr Rothnie’s employment was permissible by the giving of three weeks’ notice (or payment in lieu thereof), provided that a further week was payable for an employee over 45 years of age with at least two completed continuous years of service with the Hospital: 2011 Agreement at cl.9(1), provided that the Hospital’s right to dismiss an employee without notice for “serious misconduct” justifying instant dismissal was preserved: 2011 Agreement at cl.9(2).
With respect to redundancy the 2011 Agreement:
a)defined “redundant” to mean:
… the position is no longer required by the Employer to be undertaken because the Employer has decided that the job will not be done by any Caregiver.
2011 Agreement at cl.44(1); and
b)provided an employee employed for two years but less than three years and made redundant to be entitled to six weeks’ severance pay in addition to their notice period: 2011 Agreement at cl.44(4).
The 2011 Agreement contained a dispute settlement procedure at cl.45, which was in the following terms:
(1)Where a dispute concerning the operation of this agreement and/or the National Employment Standards arises the following steps shall be taken:
Step 1
(a)As soon as practicable after the dispute has arisen, it shall be considered jointly by the Chief Engineer, the Caregiver or Caregivers concerned and where the Caregiver or Caregivers so request, the Caregiver/s’ Union or other representative.
Step 2
(b)If the dispute is not resolved it shall be considered jointly by the appropriate senior representative of the Employer, the Caregiver or Caregivers concerned and where a Caregiver so requests, the Caregiver/s’ Union or other representative who shall attempt to settle the dispute.
Step 3
(c)If the dispute is not resolved it shall be considered jointly by the Employer, the Caregiver or Caregivers concerned and where any Caregiver so requests the Caregiver/s’ Union or other representative who shall attempt to settle the dispute.
Step 4
(d)If the dispute is not resolved it may then be referred to an agreed arbitrator for assistance in its resolution by conciliation and / or arbitration. Where the parties involved in the matter cannot agree on an arbitrator they shall request Fair Work Australia to nominate an arbitrator.
(2)The parties involved in the matter will abide by the decision of the arbitrator.
(3)On each occasion sensible time limits shall be agreed upon for the completion of each step of the procedure.
Provided that the Agreement may only be varied by arbitration for the purpose of removing ambiguity or uncertainty.
Mr Rothnie accepted that it was a condition of his employment that he was bound by the terms of confidentiality stated in his Contract of Employment: TD1 at page 51. The confidentiality provisions of the 2011 Agreement apply as a matter of law: see [18] above.
Position description and duties
The position description for the position of Refrigeration and Air-Conditioning Technician occupied by Mr Rothnie as signed by him on 5 November 2009, being Exhibit 2:
a)provides that the purpose of the position is:
Maintain the refrigeration and air-conditioning services to a good safe standard and to attend to emergency breakdowns on the property owned by … [Hospital].
b)sets out the position duties and functions to include the following:
2.2 Teamwork
. participate as a valued team member promoting and contributing to a supportive team environment.
2.4 Occupational safety & health
. adhere to requirements of the Occupational Safety & Health Legislation and infection control guidelines.
2.6 Daily repairs and maintenance
. daily repairs and maintenance plus preventative maintenance to the refrigeration and air-conditioning systems including cool room, freezer rooms, … compressors, pneumatic and electronic controls, fans, filters and cold/hot water pipe work and valves.
2.7 Clean and maintain cooling tower and closed water systems.
. clean and maintain cooling tower and closed water systems …
2.8 Carry out annual overhauls
. required to carry out annual overhauls of chiller sets, cooling towers and refrigeration equipment. Carry out as determined by the Engineer, planned preventative maintenance.
2.9 Assist with general maintenance as required
. assist as required with general maintenance in the Hospital.
The position description document also sets out position responsibilities including:
a)notably, the maintenance of confidentiality of all information in accordance with the Contract of Employment; and
b)an understanding in practice of the Hospital’s policies and procedures.
Mr Rothnie’s position
Mr Rothnie commenced working in his position of Refrigeration and Air-Conditioning Technician on 9 October 2009 in the Hospital’s Engineering Department: TD1 at pages 53 and 62. Mr Rothnie was an experienced air-conditioning technician, and had worked in this field since sometime prior to 1969: TD1 at page 63.
In his role as a technician Mr Rothnie was responsible for daily repairs and maintenance and preventative maintenance of the Hospital’s refrigeration and air-conditioning systems: Gaffey October 2013 Affidavit at [9]. Mr Rothnie agreed his role was to maintain the refrigeration and air-conditioning systems of the Hospital and perform preventative maintenance: TD1 at page 51.
The Hospital’s refrigeration and air-conditioning systems
The Hospital had 175 air-conditioning units for which a planned preventative maintenance system was in place: Gaffey October 2013 Affidavit at [10].
The Hospital’s building engineering information management system
The Building Engineering Information Management System (“BEIMS”) is a facilities management computer software system used, amongst other things, to identify assets and analyse required maintenance, including scheduling the Hospital’s planned preventative maintenance: Gaffey October 2013 Affidavit at [11].
The operation of the BEIMS in relation to planned preventative maintenance was as follows:
(a)on the Thursday of the week prior to the planned preventative maintenance (PPM) was due, the maintenance planner would issue a work order setting out the PPM for the relevant asset (such an air-conditioning unit) and provide it to the relevant technician;
(b)when undertaking the PPM, the technician was required to identify any faults and raise a separate job to action any repairs identified during the PPM;
(c)upon completion of the job, the technician would sign and date the work order, making any notes as required in relation to repairs required or safety issues, and return the work order to the maintenance planner, who was to update BEIMS accordingly
Gaffey October 2013 Affidavit at [13(a)-(c)].
The processing of work, and how the BEIMS operated, was discussed regularly with staff, and had been since at least 7 October 2009: Gaffey October 2013 Affidavit at [14]. A failure described as the Co-Generation Failure resulted in Mr Gaffey deciding to formalise existing group practices of procedure in relation to BEIMS in February 2011. The formalisation of these procedures was discussed at an Engineering Department team meeting held in February 2011: TD2 at page 208, but a formal maintenance procedures policy (“Policy 2.31”) was not compiled until about April 2011, and not finalised until on or about 30 June 2011: Gaffey October 2013 Affidavit at [20]-[23] and Annexure SPG-5, in a document titled “Department Procedure” which Mr Gaffey said was the existing procedure formalised by putting it in writing in the Department Procedure Document: TD3 at page 15.
There was unchallenged evidence from Mr Gaffey, that tasks on the BEIMS are not foreign to experienced air-conditioning technicians, and that other than the changeover of cooling pumps, they are straightforward: TD3 at page 6. In part, the Hospital’s maintenance systems relied upon the identification of faults or potential faults in plant and equipment by technicians such as Mr Rothnie reporting them to the Maintenance Planner, Assistant Engineer or Chief Engineer, so that those faults could be repaired or potential faults managed. Mr Gaffey said that technicians such as Mr Rothnie were the Hospital’s “eyes and ears” on the ground in terms of ascertaining problems which required maintenance, whether major or minor or preventative: Gaffey October 2013 Affidavit at [24]. Mr Rothnie accepted that it was his role to be the Chief Engineer’s and the Assistant Engineer’s “eyes in identifying faults with plant and equipment”: TD1 at page 61. Mr Rothnie asserted that there was some ambiguity about what was required by the BEIMS, but in the Court’s view Mr Rothnie’s raising of this issue is a distraction: the underlying issue in this case is whether or not as an experienced Refrigeration and Air-Conditioning Technician Mr Rothnie ought, in any event, to have inspected the fan chamber on the air-conditioning unit AC33 when he undertook maintenance on AC33 in June 2011, having observed in a December 2010 inspection (as the Court has found below) that there was observable rust on the fan blades. In any event, there was evidence from Mr Rothnie’s own witness Mr Lack that what was required by the BEIMS and the Departmental procedure merely reflected what had been the previous practice: TD2 at pages 161 and 163.
The events leading to the Letter of Warning
Mr Rothnie and the BEIMS
The BEIMS was in place when Mr Rothnie began working at the Hospital on 9 October 2009: TD1 at page 60.
Mr Rothnie demonstrated that he understood the BEIMS, how it worked, and what was required in terms of preventative maintenance, both planned and otherwise: TD1 at pages 56-61; Exhibits 4 and 5.
If there was a major maintenance problem Mr Rothnie would see the Assistant Engineer and report that problem: TD1 at page 61. Otherwise, if Mr Rothnie identified a problem other than a major problem with equipment or plant he would either attend to it immediately if he had parts available, or he would communicate the problem to the Maintenance Planner using the BEIMS: TD1 at page 61. Exhibit 5 is an example of the latter process.
Reporting safety concerns
There were a number of ways in which safety concerns (including occupational, safety and health issues (“OSH”)) could be reported by maintenance personnel and technicians employed at the Hospital, including the following:
a)an oral report to Mr Gaffey;
b)writing the issue on a job sheet;
c)an oral report to the safety representative, Mr Purvis;
d)an oral report to the Assistant Engineer;
e)recording the concern on a work order; or
f)recording the concern in BEIMS;
g)raising the issue at weekly or monthly toolbox meetings; and
h)causing Mr Purvis, in his capacity as safety representative, to lodge a hazard report: Gaffey October 2013 Affidavit at [25]; TD1 at pages 65-66.
Over time Mr Rothnie reported numerous OSH concerns that he had, including the following:
a)dirty air-conditioning ducts above the baby ward in July/August 2011: TD1 at page 66;
b)a need to clean air-conditioning coils for air-conditioning units 33 and 34: TD1 at pages 66-67;
c)problems with an air intake grille for the main kitchen air-conditioning in July or August 2011: TD1 at page 67;
d)over a lengthy period of time, the difficulty in accessing more than 50% of fire dampers: TD1 at page 67;
e)concern about access ladders and the platform for cooling towers 7 and 8 in November 2011: TD1 at page 67;
f)a lack of an isolation switch to 25 air-conditioning units in ward 40: TD1 at page 67;
g)rat droppings and “something else” in the ceiling above the neo-natal unit: TD1 at page 67; and
h)a lack of personal protective equipment (“PPE”), and in particular safety glasses, being made available when required to work on air-conditioners: TD1 at pages 67-68.
Mr Rothnie accepted that the Hospital’s management had to make decisions in relation to priorities in relation to issues raised by him: TD1 at page 74-75.
Mr Rothnie had a concern that some unspecified “people” in the Hospital were trying to hide some of the safety problems that he was raising: TD1 at page 69.
The August 2011 complaints and Hospital tour
On 4 August 2011 Mr Rothnie wrote directly to Dr Kelly with various complaints and Dr Kelly asked Mr Cooper to investigate Mr Rothnie’s complaints: Cooper Affidavit at [5] and Annexure SAC1 (“August 2011 Complaints”). The August 2011 Complaints were not discussed with Mr Gaffey who at the time was seconded to a project related to the Midland Hospital: TD3 at page 20.
Mr Cooper organised a tour of the Hospital with Mr Rothnie on 9 August 2011 so that Mr Rothnie could discuss the August 2011 Complaints with Mr Cooper: TD1 at pages 77-78. Mr Cooper said that he wanted to understand the nature of the August 2011 Complaints, and that once he understood those, he spoke to the Acting Chief Engineer, Mr Greg White (“Mr White”) about them: TD3 at page 20. Mr Cooper asked Mr White to attend to the August 2011 Complaints and to report back to Mr Cooper that they had been attended to: Cooper Affidavit at [7]-[9].
Mr Rothnie ultimately accepted that Hospital management responded to his concerns: TD1 at pages 74-75, but considered that their response was “very delayed”: TD1 at page 75, but accepted that they were not ignoring his concerns and were acknowledging them by “escalating them”: TD1 at page 81. Mr Rothnie’s somewhat grudging acceptance that the Hospital management responded to his various concerns might, to some degree, be explained by his view that “Everything was a major issue that I raised”: TD1 at page 74.
On the evidence, the Hospital did react to and address concerns raised by Mr Rothnie. Whilst Mr Rothnie was critical of the speed with which the issues were ultimately addressed, the fact that the Hospital took the matters seriously is evidenced by its reaction to the August 2011 Complaints. Within five days of Mr Rothnie having written directly to the Chief Executive Officer, Dr Kelly, Mr Rothnie was touring the Hospital with the Director of Corporate Services, Mr Cooper, to discuss the August 2011 Complaints, which were subsequently referred to the Acting Chief Engineer, Mr White, to deal with. Mr White subsequently reported to Mr Cooper that the August 2011 Complaints had been “attended to”: Cooper Affidavit at [9]. The various matters the subject of the August 2011 Complaints were addressed in a letter from Mr Cooper to Mr Rothnie dated 16 January 2012: Exhibit 7 (“Hospital’s 16 January 2012 Letter”). The Hospital’s 16 January 2012 Letter was a response within 11 days to a 5 January 2012 letter to Dr Kelly and Mr Cooper from Mr Rothnie (“Rothnie 5 January 2012 Letter”).
AC33
AC33 was an air-conditioning unit on which Mr Rothnie and his colleague Mr Lee had, prior to 15 November 2011, performed routine maintenance checks. On 15 November 2011 AC33 failed: TD3 at page 8.
The air-conditioning fan on AC33 was inside of or behind a grey panel below a yellow duct, being the fan chamber cover. Visual inspection of the fan and cowling for AC33 required the removal of the fan chamber cover and physically looking at the fan blades and cowling: Gaffey August 2014 Affidavit at [48]; TD1 at page 81.
When AC33 failed Mr Gaffey conducted an inspection of AC33: Gaffey October 2013 Affidavit at [41]. In relation to that inspection Mr Gaffey’s evidence was not challenged in cross-examination, and indicated that:
a)when he inspected inside the fan chamber the supply air fan blades had disintegrated: Gaffey October 2013 Affidavit at [41]; and
b)both the chamber and the fan scroll were badly rusted to the extent that there were holes in the fan blades, and that this degree of corrosion would have taken more than four months to develop, and should have been visible on a visual inspection: Gaffey October 2013 Affidavit at [47].
CBD Refrigeration & Airconditioning Services, an external contractor, was, subsequent to the 15 November 2011 failure of AC33, engaged to repair AC33 and to report on the failure (“CBD Report”): Gaffey October 2013 Affidavit at [43]. The CBD Report is annexed to the Gaffey October 2013 Affidavit at Annexure SPG-8.
In the CBD Report the following observation was made:
We are of the view there is clear evidence that the supply air fan scroll and blower wheel had been deteriorating for some time, from our experience we believe the rusting in the fan scroll and blower wheel would have been evident for some years. We would have assumed if the fan assembly was properly inspected within the last six months, then the problem would have been apparent, as such appropriate remedial or repair work could have been coordinated and implemented at scheduled time without the lengthier down time as has been the case on this occasion.
Gaffey Affidavit at Annexure SPG-8 at page 1.
Mr Rothnie had removed the inspection panel on AC33 on previous occasions: TD1 at page 82; Exhibit 4 (“December 2010 Work Order”). The December 2010 Work Order shows that Mr Rothnie and Mr Lee inspected AC33 on 23 December 2010. On that occasion they spent about half an hour working on AC33. Mr Rothnie confirmed that he and Mr Lee completed most of the task items on the relevant work order, and identified 13 of 21 items completed within the half hour inspection: TD1 at pages 56-59, including the inspection of the fan and cowling for wear: TD1 at pages 57 and 59.
Mr Rothnie gave evidence concerning the December 2010 inspection of AC33 in which he said that:
a)the fan had dust on it;
b)the cowling had surface rust encasing it;
c)there was a big build-up of dust and you would not see rust on the fan;
d)the fan was not cleaned to have a look to see whether there was any rust as it was a “major job”;
e)the fan and cowling area is a moist environment; and
f)he did not believe he had ever seen any rust on the fan, just dust: TD1 at page 83.
Mr Rothnie asserted that he subsequently told (but did not report in writing) to Mr Lack that AC33 needed to be looked at as it was starting to rust, but that this was just a “passing comment”: TD1 at page 84.
Mr Rothnie agreed that it was good preventative maintenance to actually treat rust before it gets out of hand, but that because he had written things down before and nothing had happened he simply made a “passing comment” to Mr Lack that the rust on AC33 needed to be addressed: TD1 at page 84. Mr Rothnie agreed that he made no formal written report by way of a work order or otherwise, and said that it seemed more important to talk to Mr Lack about it than putting a written report into BEIMS for maintenance planning purposes: TD1 at page 84. Mr Rothnie did not make a formal work order despite agreeing that there was signs of rust on AC33 as at December 2010, and that this would be something that a man of his experience would be on the lookout for: TD1 at page 84. That concession was made against the background of a statement that all air-conditioning units have rust on them, and that, contrary to his earlier evidence, it was not correct to say that the unit was “encased in rust”, but that there “was rust”: TD1 at page 84.
Mr Rothnie attended a meeting with Mr Gaffey on 16 December 2011 (“December 2011 Meeting”). Mr Rothnie secretly recorded the December 2011 Meeting: Rothnie August 2014 Affidavit, Annexure A (“December 2011 Meeting Transcript”).
At the December 2011 Meeting the following exchange occurred:
GAFFEY: ….
You mentioned at our last meeting that you thought that the fan disintegrated due to rust and dust build up, would that be still ok??
ROTHNIE: Steve, I’m not a metallurgist, or a qualified engineer, or whatever that was purely my…..
GAFFEY: Yes
ROTHNIE: observation
GAFFEY: Yep that’s fine and being a refrigeration technician that’s what we expect from you guys.
ROTHNIE: Based on my 64 years of experience in life, yes
GAFFEY: (laugh) OK I’ll just put yes
GAFFEY: You also mentioned at our last meeting that the fan scroll wasn’t inspected at the last service which was in June because it was inconvenient due to the number of bolts having to be removed to gain access to the fan chamber.
ROTHNIE: You talking June ….. That’s correct.
GAFFEY: It’s also mentioned that nothing was broken in December 2010, but there was slight rust Um,…. on the fan scroll.
ROTHNIE: Well you can see rust there Steve, you can’t sort of get in there, we’ve only got those little dolphin torches, you can’t see a lot, you can only see inside of that a little bit of the impellor.
GAFFEY: Oh, but you can see the cowling the casing all that sort of stuff, cos you can actually sit inside the chamber.
ROTHNIE: Yes there all encased in rust
GAFFEY: But the term was “there was slight rust”, was what you mentioned the other day, but not clear enough to warrant anything further.
ROTHNIE: If I had a wire brush?? Or whatever you would find out how much rust there was there.
GAFFEY: Ok
ROTHNIE: After all, it is moist, wet air going through them.
GAFFEY: Yes, so Um ,….. slight rust, Um…..
ROTHNIE: RUSTY, I wouldn’t say slight rust, it was RUSTY !!
GAFFEY: Rust, yes it was rusty ok, alright Um….., the technical report, and I’ve just let you read that, mainly the first couple of pages, but Um…. That’s just the technical report, I’ll just Um….. give you a few minutes…..
ROTHNIE: Due to corrosion” must be a fridge mechanic is he? Qualified?? …… Long pause.
I’ve read that Steve, I’m not saying I altogether agree with it, because that same company and we won’t digress with it, was also responsible for a bad report.
Up on the air conditioning, up at the top (roof).
GAFFEY: and obviously the photos are there too, all to support, there’s a couple more photos over the other side as well
ROTHNIE: Yes
ROTHNIE: Yes, there’s the rust I was talking about
GAFFEY: Yes, yes
ROTHNIE: That’s all we can see
GAFFEY: Yes, Ok
GAFFEY: No the technical report confirms that the fan failed due to corrosion, Ah, and this corrosion had been deteriorating for some years and that tends to indicate that it should have been identified back in December 2010, granted that you said it was rusty, but on the 2010 maintenance which you spent half an hour to do and I’ve just added Ah Lee there as well, cos he wasn’t written on here Um, nothings been recorded as being any problems, Ah….. nothing the procedures weren’t Um…. sorry, yes. Nothing was raised that there was a problem with any of the fans, so we didn’t know there was a problem with any of the fans
So you acknowledge then that it didn’t seem enough to justify the raising….
ROTHNIE: No
GAFFEY: A separate Beims to rectify it or anything like that. Ok.........Ok
Mr Rothnie was cross-examined on planned preventative maintenance (“PPM”) conducted on AC33 on 22 June 2011: TD1 at page 85. Mr Rothnie conceded that on that occasion the fan and cowling were not inspected for wear in circumstances where six months previously there had been some rust detected in AC33: TD1 at page 85. Mr Rothnie conceded that the checklist for the June 2011 PPM was in the same form as the checklist for the December 2010 inspection of AC33: TD1 at page 85.
The work order completed by Mr Rothnie on 22 June 2011 (“June 2011 Work Order”: Exhibit 9) represented to the Hospital that the fan and cowling had been inspected, but Mr Rothnie says that this was an item on the June 2011 Work Order which was inadvertently or carelessly ticked off as having been completed: TD1 at page 85.
Mr Rothnie gave evidence that although he had previously removed the cover plate to the fan chamber on AC33 he did not do so in June 2011 because there were 24 bolts and it was inconvenient and unsafe to do so because he was “working single-handedly”: TD1 at page 91, notwithstanding that he was working as part of a team with Mr Lee: TD1 at pages 87-91. Mr Rothnie went to not insignificant lengths to assert that he and Mr Lee were working separately, that they worked separately for two hours on this day, and that he did not remove the cover plate on AC33 because it had too many bolts and was heavy and that he could not do it single-handedly: TD1 at pages 88-91. In particular, he asserted that because he spent significant time working on the filters: TD1 at page 86, and that because he was working alone, it was unsafe for him to remove the bolts to gain access to the fan chamber of AC33: TD1 at page 89. Mr Rothnie’s explanation that he and Mr Lee were doing one air-conditioning unit each, and that he was working on AC33 separately, was in the Court’s view either convenient for Mr Rothnie and dissembling, or a complete failure of recollection. The June 2011 Work Order shows that Mr Lee and Mr Rothnie both worked for one hour on AC33, and Mr Rothnie was unable to proffer a satisfactory explanation as to why the June 2011 Work Order indicated that to be the case, rather than indicating that he and Mr Lee worked separately for two hours on two different air-conditioning units: TD1 at page 91. The ultimate concession by Mr Rothnie that Mr Lee worked on the unit for an hour together with Mr Rothnie (confirmed by Mr Lack: TD2 at page 164) is evidence, which in the Court’s view, renders Mr Rothnie’s evidence that:
a)he worked alone on AC33 on this occasion, and
b)it was therefore unsafe to remove the cover plate,
unreliable and not credible.
The Court finds that at the time of the inspections of AC33 on 23 December 2010 there was sufficient rust apparent within the fan and cowling of AC33 that Mr Rothnie ought to have noticed it, and ought to have made some written form of report to ensure that there was preventative maintenance carried out on AC33, but that he did not make such a report, as a prudent Refrigeration and Air-Conditioning Technician of his experience ought to have done.
The Letter of Warning
The Letter of Warning of 16 December 2011 is in evidence as Exhibit 10. The Letter of Warning is addressed to Mr Rothnie and is from Mr Gaffey and is in the following terms:
Dear Ian
RE: Letter of Warning
I refer to your meeting with myself and Simon Lack, with Martin Purvis as your support person on 16th December 20l1.
The purpose of the meeting was to allow you to formally respond to the allegations of poor preventative maintenance on AC33 in June 201. Specifically as follows:
- The technical report indicated that the air conditioning unit 33 (AC33) failed due to corrosion and had been deteriorating for some years.
- In June 2011 you conducted a service to AC33, in conjunction with another caregiver. You did not remove the fan chamber access panel due to inconvenience and safety. However this was not reported to your supervisor, recorded on the planned maintenance sheet or raised as a. hazard on Risk Pro.
- Line 5 of task 1402 on work order P0048355 clearly states this to be done and was 'ticked' as being completed.
- Department Procedure 2.31 clearly states the process to be carried out during planned preventative maintenance. This was not followed.
The failure of AC33 on 27/10/2011 could have been avoided if the preventative maintenance procedure was carried out correctly. I confirm that you were given opportunity at the meeting to respond to these matters.
St John of God Hospital Subiaco (SJOGHS) has fully investigated the facts surrounding these matters. After carefully considering the above facts and your response we consider you to be negligent in your duties, which is unacceptable. We require that you carry out all work as per the tasks in a consistent, accurate and complete manner.
SJOGS considers the matters discussed in this letter to be serious. Any repeat of similar behaviours will result in further disciplinary action, which could include the termination of your employment with SJOGS.
Should you have any queries, please contact me on 9382 6309.
Mr Rothnie asserts, in essence, that the conduct about which the Hospital complains in relation to AC33’s failure was effectively negligence by Mr Rothnie. Mr Rothnie takes issue with this and says that:
a)on the tour with Mr Cooper on 9 August 2011 he had pointed out various OSH issues that he had been complaining about;
b)he had complained in October 2010 about having to work in the duct area of AC33 for four hours on a breakdown without any PPE: Rothnie September 2013 Affidavit at Annexure D; Rothnie July 2014 Affidavit at [4] and Annexure IDR 8; and
c)he had been told by Mr Gaffey in March 2011, following complaints made by Mr Rothnie about the ambiguity and the wording of the BEIMS, that they were a guide only: Rothnie September 2013 Affidavit at [13] and that the Hospital had confirmed that the BEIMS was not a strict code but a guide only: Gaffey August 2014 Affidavit at [28].
Mr Rothnie asserts that the BEIMS did not at the relevant time provide for specific maintenance tasks to be carried out on each individual piece of plant or equipment and that the general practice was to perform whatever tasks were possible in respect of each individual piece of plan or equipment: Gaffey August 2014 Affidavit at [28]-[29]. Mr Rothnie says that sanctioning him for not following an ambiguous guideline is “unfair harsh and unjust” and contrary to the objects of the FW Act, s.3(e). Mr Rothnie says that the Letter of Warning should be considered adverse action on the grounds of the misrepresentations of Mr Gaffey to Mr Rothnie regarding what was expected of him in his role with respect to the BEIMS.
Mr Rothnie says that it was Mr Lack who turned AC33 off, and did not tag it, contrary to Hospital procedures, and that it was subsequently turned back on by Mr Gaffey who said that he thought someone had forgotten to turn it back on, and claimed that he did not know who it was despite having said in the Letter of Warning that he had carried out a thorough investigation. Mr Rothnie argues that Mr Gaffey could not help but have been aware that AC33 had been turned off for some time because he had access to computer monitoring systems which allowed him to determine this, and that turning the system back on when it had been off for a considerable amount of time, and not making enquiries as to whether or not it had been fixed, amounted to negligence and that Mr Gaffey received no sanction for his part, nor did Mr Lack for his part in not tagging AC33.
Mr Rothnie says that his failure to check the item on the BEIMS with respect to inspecting the fan blade and cowling was an honest error: Rothnie September 2013 Affidavit at [13] and Exhibit 9. Mr Rothnie argues that Mr Gaffey’s contention that he relied upon the checking off of this item as evidence that the task had been carried out, without further corresponding with Mr Rothnie about it, is implausible as it is in direct conflict with previous planned maintenance work orders on AC33 in which the item was not likely to have been carried out by previous service personnel given the level of corrosion present as noted in the CBD Report: Gaffey October 2013 Affidavit at Annexure SPG-8.
Mr Rothnie further argues that there were a number of supervening events which caused the failure of AC33. In particular, Mr Rothnie asserts that Mr Gaffey, should have realised upon carrying out a full investigation into the incident which he claims to have done: Gaffey October 2013 Affidavit at [44], that:
a)there had been a systematic failure in preventative maintenance on AC33 for a substantial period of time, and that this could not reasonably be attributed only to Mr Rothnie;
b)the significant events which led up to the failure of AC33, including the incorrect tagging, and the failure to repair prior to turning the unit back on, were likely in a material way to have contributed to the failure of AC33; and
c)properly advised Mr Gaffey knew or ought to have known that a formal written warning only to Mr Rothnie in respect of his conduct in relation to AC33, in circumstances where both Mr Gaffey and Mr Lack were equally if not more culpable that Mr Rothnie in respect of the failure of AC33, would likely amount to discrimination against Mr Rothnie given all of the circumstances.
Mr Rothnie asserts that the CBD Report confirms that there had been maintenance issues with AC33 for a considerable period of time, and that the preventative maintenance issues could not be blamed entirely upon Mr Rothnie, and that any proper investigation by the Hospital of Mr Gaffey would not have laid the blame at the feet of Mr Rothnie, and that the Letter of Warning was inconsistent with the contents of the CBD Report as to the reason for AC33’s failure, and was an act of discrimination.
Mr Rothnie says that given the events leading up to the Letter of Warning the Court should find that:
a)Mr Rothnie was not negligent in his duties;
b)the duties could not have been carried out by Mr Rothnie fully due to safety reasons and that the breakdown of AC33 was a result of intervening circumstances beyond the control of Mr Rothnie; and
c)the reason for the Letter of Warning had nothing to do with maintenance issues or negligence but everything to do with Mr Rothnie exercising his workplace rights, and that there was no other reason for the Letter of Warning, and that Mr Gaffey’s evidence to the contrary is so implausible in all the circumstances that it should on the balance of probabilities be rejected.
Mr Rothnie asserts that there is a breach of a workplace right pursuant to s.341(1)(a) of the FW Act because the Letter of Warning relates to him not carrying out work where it was unsafe to do so, which would have been a breach of ss.19(1)(d) and (e) and 19A of the Occupational Safety and Health Act 1984 (WA) (“OSH Act”), particularly given Gaffey’s October 2013 Affidavit at [50] which says that Mr Rothnie says he did not carry out the work due to safety concerns.
Mr Rothnie says that adverse action was taken against him by the issuance of the Letter of Warning in circumstances where:
a)there were issues of misrepresentation by Mr Gaffey; and
b)there were other material contributions that on the balance of probabilities led to the failure of AC33,
and sanctioned only Mr Rothnie over the failure of AC33 amounts to a contravention of s.3(e) of the FW Act, and also adverse action within the meaning of s.342(1)(d) of the FW Act as “discrimination between the employee and other employees”.
The assertions made by Mr Rothnie do not come to grips with the true issue in these proceedings: namely, what was the reason for the adverse action taken by Mr Gaffey in issuing the Letter of Warning? The approach taken by Mr Rothnie is to take issue with the Hospital’s response to a variety of issues raised by him from about 2010 onwards, to argue that they were not properly dealt with, or that some of the matters complained about were a contributing cause or causes to the ultimate failure of AC33, and that the failure of AC33 was not Mr Rothnie’s fault. But the issue is whether or not the Letter of Warning was issued by Mr Gaffey for a prohibited reason.
Despite the casting of a very wide net in terms of assertions, the evidence in this case positively establishes that Mr Gaffey’s reasons for the issuance of the Letter of Warning were based entirely on the negligent or poor performance of duties by Mr Rothnie arising from the June 2011 inspection of AC33.
Following AC33’s failure Mr Gaffey reviewed maintenance records for AC33, and determined that AC33 had last been serviced by Mr Rothnie and Mr Lee on 22 June 2011, being just over four months before it failed: Gaffey October 2013 Affidavit at [44].
Mr Gaffey commissioned the CBD Report which indicated that upon a proper inspection within the six months prior to the failure of AC33 the problem would have been very apparent and that appropriate remedial repair works could have been properly coordinated and scheduled if the problem had been notified.
Mr Gaffey took advice from Darren Jones, the Hospital’s Human Resources Manager, as to the proper process to be followed to address concerns that Mr Gaffey had about Mr Rothnie’s conduct in servicing AC33: Gaffey October 2013 Affidavit at [53].
Having investigated the circumstances Mr Gaffey concluded that Mr Rothnie’s performance of preventative maintenance on AC33 in June 2011 was negligent and unacceptable, and decided that it was appropriate to issue a Letter of Warning to Mr Rothnie, and also, to Mr Lee, whom he determined was equally culpable: Gaffey October 2013 Affidavit at [61].
Mr Gaffey’s Affidavit evidence was that the decision to issue the Letter of Warning was based solely on Mr Rothnie’s failure to follow the maintenance procedure when inspecting AC33 and nothing else. Mr Gaffey said there were no other reasons to issue the Letter of Warning and there was certainly no plan to dismiss Mr Rothnie: Gaffey August 2014 Affidavit at [53].
In the Court’s view, Mr Gaffey’s evidence must be accepted for two reasons: firstly, it appears to accord with the facts as they otherwise appear in the evidence, and secondly, because Mr Gaffey was not cross-examined on the reasons for issuing the Letter of Warning.
The cross-examination of Mr Gaffey appears at TD2 at pages 204-209 and TD3 at pages 2-14. Only one question was specifically asked about the Letter of Warning, and that question related to the servicing of AC33 in June 2011, and the failure to remove the access panel to the fan chamber: TD3 at pages 11-12. Mr Gaffey was not cross-examined on the reasons for issuing the Letter of Warning. It was not put to him that he had issued the Letter of Warning by reason of some prohibited purpose, and, in particular, it was not put to him that he issued the Letter of Warning because Mr Rothnie had exercised a workplace right of any kind. In circumstances where, as the Court has indicated above, there was evidence capable of sustaining the view ultimately reached by Mr Gaffey as to Mr Rothnie’s performance which resulted in the Letter of Warning being issued, it was incumbent upon Mr Rothnie to put that issue to Mr Gaffey. The Hospital has called direct evidence from the decision-maker Mr Gaffey in relation to the issuance of the Letter of Warning: this accords with what the High Court intimated might be necessary in such cases in Barclay at [44] per French CJ and Crennan J. In this case that evidence being unchallenged, and not inherently incredible it ought, as a general proposition, be accepted: Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362; (1975) 49 ALJR 281; (1975) 6 ALR 311; CLR at 370-371 per Gibbs J (with whom Stephen J CLR at 372 agreed, and Murphy J CLR at 372 generally agreed) (“Precision Plastics”); Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322; (2014) 312 ALR 551 at [78]-[79] per Mansfield and Gilmour JJ (“Ashby”), and it may be wrong, unreasonable or perverse to reject unchallenged evidence unless contradicted by facts otherwise established by the evidence or where the particular circumstances point to the necessity for its rejection, but there is no rule of law in Australia that a court must accept unchallenged evidence: Ashby at [77]-[78] per Mansfield and Gilmour JJ (citing Precision Plastics and Ellis v Wallsend District Hospital (1989) 17 NSWLR 553; [1989] Aust Torts Reports 80-289; [1990] 2 Medical Law Reports 103; NSWLR at 587-588 per Samuels JA). In an evidentiary sense, Mr Gaffey’s reasons for issuing the Letter of Warning were not challenged, and those reasons otherwise being open and not incredible, they ought to be, and are, accepted by the Court as his reasons for issuing the Letter of Warning.
For reasons set out above the Court does not accept that there were OSH reasons for Mr Rothnie and Mr Lee not removing the cover plate on AC33 and inspecting the cowling and fan during the June 2011 inspection, as, as the Court has also found, two experienced technicians ought to have done given what was observed during the December 2010 inspection. There is therefore no basis upon which the issuance of the Letter of Warning insofar as it relates to the failure to perform PPM during the June 2011 inspection can be said to be based upon a workplace right associated with the exercise of any duties or obligations that Mr Rothnie had as an employee under the OSH Act. Nor is there a basis more generally for asserting that the Letter of Warning issued because of the exercise of any duties or obligations by Mr Rothnie under the OSH Act. As the Court has also observed above, Mr Rothnie was not prevented, on the evidence, from raising OSH complaints, and the Hospital dealt with these (albeit more slowly than Mr Rothnie would have liked), but also with some expedition in ensuring that the problems were looked at together with Mr Rothnie in the case of the August 2011 complaints and the Rothnie 5 January 2012 Letter, for example. The Court cannot infer from the various disparate OSH issues raised by Mr Rothnie, and the discursive manner in which they were raised, and the often rambling content of the written material associated with their being raised, that any of those complaints had any relationship whatsoever to the issuance of the Letter of Warning. For all of the above reasons, the Court has concluded that no exercise of any OSH-related workplace right gave rise to adverse action by way of the issuance of the Letter of Warning to Mr Rothnie.
Mr Rothnie also asserted that he had been discriminated against for the purposes of Item (d) of s.342(1) of the FW Act by being treated differently to other employees. It can be accepted that the concept of discrimination in s.342(1), Item (d) of the FW Act is directed to, or at least does not preclude, discrimination on the broadest of grounds, and that to discriminate in this context means to treat less favourably: Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402; (2012) 208 FCR 178; (2012) 228 IR 399; (2012) 65 AILR 101-809 at [101] per Gordon J; Wolfe v Australia and New Zealand Banking Group Ltd [2013] FMCA 65 at [83] per Whelan FM; Construction, Forestry, Mining and Energy Union v Pilbara Iron Co (Services) Pty Ltd (No 3) [2012] FCA 697; (2012) 64 AILR 101-659 at [41] and [43] per Katzmann J.
The difficulty for Mr Rothnie is that the Letter of Warning has issued in respect of a specific incident in respect of which only he and Mr Lee were involved, and only he and Mr Lee received the Letter of Warning. On its face, and for reasons otherwise set out above, the issuance of the Letter of Warning by reason of the failure to engage in proper PPM in June 2011 is unexceptional. There is no evidence that the Hospital, through Mr Gaffey or otherwise, has fastened upon the PPM failure in June 2011 as a singular criterion to be used to discriminate against Mr Rothnie for a prohibited reason. The comparisons sought by Mr Rothnie do not compare like incidents or like conduct, and the assertions made are so broad and indiscriminate that they would involve the Court making retrospective performance management decisions as to how the Hospital might otherwise have dealt with particular cases in circumstances where the evidence as to those cases is either insufficient or so broad and general as to not provide a proper evidentiary basis for the making of such findings. Nor is there, in any relevant sense, any unfairness in the issuance of the Letter of Warning to Mr Rothnie (and Mr Lee) in respect of this specific incident. The Letter of Warning does not, as Mr Rothnie appeared to assert, lay the entire blame for the failure of AC33 at his feet, but rather simply deals with a single incident of poor PPM. If, as appeared to be asserted by Mr Rothnie, the issuance of the Letter of Warning, and also the ultimate termination of his employment at the Hospital, was, unfair, that is not a matter for proceedings such as this, but rather proceedings in the Fair Work Commission: Construction, Forestry, Mining and Energy Union & Anor v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; (2015) 238 FCR 273; (2015) 67 AILR 102-492 at [136] per Rangiah J (“Dawson Services”).
In relation to the facts it is therefore clear that:
a)the failure of AC33 caused an investigation to occur;
b)in the course of that investigation Mr Gaffey came to the view that Mr Rothnie, and Mr Lee, had performed preventative maintenance on AC33 in June 2011 in a manner which was negligent and unacceptable, and that as a consequence both Mr Rothnie and Mr Lee were sent a Letter of Warning for the same poor performance of preventative maintenance: Gaffey October 2013 Affidavit at [63]-[64];
c)Mr Gaffey discussed the appropriate human resources process with Mr Jones, the Human Resources Manager for the Hospital, and sought advice from him in relation to the issuance of the Letter of Warning: Jones Affidavit at [4]-[5]; and
d)the terms of the Letter of Warning itself make it clear as to the reasons for which it was issued, namely Mr Rothnie’s poor performance in respect of preventative maintenance on AC33 in June 2011.
The Court finds that because in the June 2011 inspection Mr Rothnie and Mr Lee failed to inspect the cowling and fan Mr Rothnie and Mr Lee were negligent in the performance of their duties because, having inspected the fan and cowling in December 2010 and observed signs of rust (at the very least) they, as experienced air-conditioning technicians, ought to have undertaken the inspection of the fan and cowling in June 2011, or at the very least, recorded that they had not undertaken that inspection.
The Court accepts that the Letter of Warning issued to Mr Rothnie was issued by reason of Mr Gaffey’s view that Mr Rothnie’s performance in respect of preventative maintenance on AC33 was negligent and unacceptable, and was the reason for issuing the Letter of Warning. On the basis of the facts as they appear before the Court in these proceedings that was a conclusion which was open to Mr Gaffey on the evidence. Even if the ultimate conclusion was wrong, it does not, in any event, alter the actual reason for the issuance of the Letter of Warning: Dawson Services at [36] per Jessup J and [132]-[136] per Rangiah J, but, as the Court has indicated above, in the Court’s view not only was there evidence to sustain Mr Gaffey’s view, it was correct in any event.
In all of the above circumstances the Letter of Warning was not issued because of the exercise of a workplace right by Mr Rothnie, and there was no contravention of a general protection under s.340(1) of the FW Act.
Events leading to Mr Rothnie’s dismissal
Mr Rothnie’s response to the Letter of Warning
Mr Rothnie felt aggrieved by the Letter of Warning: TD1 at page 92. The Rothnie 5 January 2012 Letter was addressed to the Chief Executive Officer, Dr Kelly, and Mr Cooper, the Director Corporate Services. The subject matter of the Rothnie 5 January 2012 Letter was as follows:
RE: NOTICE OF WARNING – REFRIGERATION AND AIR-CONDITIONING MAINTENANCE
The first two paragraphs of the Rothnie 5 January 2012 Letter read as follows:
Once again I am forced to write to you, only on this occasion has harassment, bullying and victimisation are included with my complaint.
However before we go down the Human Relations (H.R.) path I wish to reiterate my comments to you previously, “there will be repercussions” and certainly there has been, in fact on Monday, Wednesday the 14th December, 2011 was the start of these.
There followed the attachment of various documents in relation to issues raised at toolbox meetings concerning BEIMS, damper inspections, the attitude of Mr Gaffey and the failure of AC33, extracts from the Department Procedure Document, various hazard reporting and workplace inspection policies, and various other alleged safety issues in relation to the Hospital’s air-conditioning systems.
Mr Rothnie said that he was upset by the Letter of Warning, particularly in the context of the amount of effort and energy that had put in to try to assist the Hospital with correcting their policies and procedures: TD1 at page 95.
In the Hospital’s 16 January 2012 Letter Mr Cooper responded to each of the items raised in the Rothnie 5 January 2012 Letter. It is unnecessary to set out the Hospital’s response to each of the matters raised, save to note that in the second paragraph of the Hospital’s 16 January 2012 Letter Mr Cooper wrote as follows:
You have raised several concerns over the management of various incidents over a period of time by the Chief Engineer, Mr Steve Gaffey. All of those matters have been addressed directly with Mr Gaffey, including his own involvement in the failure of A/C Unit 33.
In relation to the Letter of Warning, having noted:
a)Mr Rothnie’s admission that the task of inspecting the fan and cowling on AC33 for wear was not done because of the alleged difficulty in removing the front panel;
b)the report prepared by CBD Refrigeration, and the passage set out at [47] above; and
c)that the marking of a task as completed when it had not been done could not be excused, in circumstances where a proper inspection of the fan assembly would have made the problem of AC33 apparent,
Mr Cooper indicated that the Hospital would not retract the Letter of Warning.
It is important to observe that before the Rothnie 5 January 2012 Letter was sent almost three weeks had passed since the issuance of the Letter of Warning. Given Mr Rothnie’s evidence that he was not satisfied with the failure to retract the Letter of Warning and that he felt aggrieved, the Court infers that the threat of “repercussions” must have been made deliberately by Mr Rothnie.
The Hospital’s 16 January 2012 Letter of response to the Rothnie 5 January 2012 Letter was written by Mr Cooper, who investigated the facts and reasons for the Letter of Warning, and spoke to Mr Gaffey about those matters: Cooper Affidavit at [12]-[17] and Annexure SAC-5, and TD3 at page 21.
Mr Rothnie again took some time to respond to the Hospital’s 16 January 2012 letter. Mr Rothnie’s response was dated 31 January 2012, and was written in the context of Mr Rothnie being upset by the Hospital’s 16 January 2012 letter: TD1 at page 97.
By way of an email dated 31 January 2012: Cooper Affidavit at Annexure SAC6, Mr Rothnie replied to Mr Cooper indicating that he was “in receipt of your ‘politicians’ reply” that he completely disagreed with Mr Cooper’s findings and believed his comments to be inequitable, unfair and in direct conflict with the Hospital’s core values and code of practice.
Mr Rothnie’s letter of 2 February 2012
On 2 February 2012 Mr Rothnie sent a letter (“2 February 2012 Letter”) to:
a)a number of Hospital department heads; and
b)two trade unions, namely United Voice and the Communications, Electrical and Plumbing Union (“CEPU”): TD1 at page 97; Cooper Affidavit, Annexure SAC7.
The letter contained a short description of various problems that Mr Rothnie said existed with various air-conditioning units and ducts around the Hospital, and had attachments which included photographs of:
a)air-conditioning filters in the Hospital; and
b)rat droppings in the Hospital ceilings.
Mr Rothnie:
a)was not a member of either of the unions to whom he sent the 2 February 2012 Letter;
b)was not seeking to be represented by either union (although he was eligible to be represented by the CEPU); and
c)said that he was sending the information to United Voice and the CEPU so that they could raise it with their members if they wished to: TD1 at pages 97-98.
At the time that Mr Rothnie sent the 2 February 2012 Letter he knew that the Hospital said that it was attending to the matters referred to in the letters, which had been the subject of a prior complaint by him, but asserted that it was not correct that those issues were being addressed: TD1 at pages 98-99.
Under cross-examination Mr Rothnie denied that he sent the 2 February 2012 Letter in order to apply pressure to Dr Kelly or Mr Cooper: TD1 at page 97. Rather, Mr Rothnie said that he was pursuing his “duties and obligations”: TD1 at page Y97. Mr Rothnie admitted, however, that he had no connection with United Voice: TD1 at 98.
Dr Kelly became aware that Mr Rothnie had sent correspondence to parties external to the Hospital concerning the Hospital’s air-conditioning system, but left the matter for Mr Cooper to deal with: Kelly October 2013 Affidavit at [7]-[8].
Mr Cooper became aware of the 2 February 2012 Letter on 3 February 2012 when it was brought to his attention by the Neonatal Unit Nurse Manager: Cooper Affidavit at [19]. At or about the same time Mr Cooper became aware that the 2 February 2012 Letter had been sent to other Hospital managers, United Voice and the CEPU: Cooper Affidavit at [20].
Mr Cooper met with Mr Rothnie and Mr Andy Giddens, who was from the CEPU, on 7 February 2012 to discuss Mr Rothnie’s 2 February 2012 Letter and his OSH concerns. During the course of that meeting Mr Cooper told Mr Rothnie that he should respect the Hospital’s management structure and report his OSH concerns to either Mr Cooper or Mr Gaffey: Cooper Affidavit at [22]-[23].
The meeting on 10 February 2012
On 9 February 2012 Mr Rothnie requested that Dr Kelly meet him and Mr Cooper: Kelly October 2013 Affidavit at [9] and Annexure SPK1. Mr Rothnie sent the same request to Mr Cooper: Cooper Affidavit at [28].
The request from Mr Rothnie was in written form as follows:
Mr Shane Kelly, C.E.O., S.J.O.G.S
Mr Stehen Coper, Director, S.O.G.S.
Some very informative information just happened to land on my desk today.
I feel it would be in the best interest of yourselves and S.J.O.G.S. that the 3 of us ONLY (KELLY, COOPER, ROTHNIE) meet today (Fri 10th Feb) for approx. 15-20 mis, prior to you meeting with Steve Gaffey on Monday.
YOUR CALL………….?
Regards
Ian Rothnie
[Telephone numbers deleted].
(Transcribed without amendment).
Mr Rothnie’s request for the meeting on 10 February 2012 was on the basis that he had more information to provide concerning the issues raised in the Letter of Warning: TD2 at pages 121-122.
Prior to the 10 February 2012 meeting Mr Rothnie:
a)had not read his Contract of Employment;
b)did not calculate his entitlements on termination of his Contract of Employment;
c)gave no consideration as to his entitlements under any legislative or contractual redundancy arrangement; and
d)prepared a calculation of a sum of money he claimed to be entitled to from the Hospital for the 10 February 2012 meeting: TD2 at pages 123-124.
The 10 February 2012 meeting was attended by Mr Rothnie, Dr Kelly and Mr Cooper and was held in Mr Cooper’s office and lasted for approximately 30 minutes. Mr Rothnie attended the meeting with a concealed recording device in his top pocket and secretly recorded the meeting, a largely accurate transcript of which appears at Annexure IDR-17 to the Rothnie July 2014 Affidavit.
The following are extracts from that transcript:
(Rothnie) How are you?, Ian Rothnie pleased to meet you.
(Kelly) Have a seat.
(Rothnie) Thank you gentlemen, I don't think you know me that well, do you know who I am?
(Kelly) I know who you are Ian.
(Rothnie) Where do you know me from?
(Kelly) Well I have been kept up to speed with all of your communications.
(Rothnie) Is that all you know me from?
(Kelly) Yep.
(Rothnie) I'm not bragging but I will give you a quick outline. I played league football when I was a young fellow, okay. I'm in contact with the media all the time, I'm still involved with the football club.
(Kelly) Great.
(Rothnie) I'm a very prominent race horse breeder.
(Kelly) Yep.
(Rothnie) Only a small fry but I breed quality. I'm in touch with the media all the time. I've got access to the media just like that, that's not a threat or anything.
(Kelly) Sounds like it to me.
(Rothnie) No, No nothing like that.
(Rothnie) Politics: I am a strong supporter of the Liberal Party, um, our member for Murray / Wellington, he played for the Perth Football Club as I did, so we are right next door to Kim Hames. I am very good mates with John Quigley, leader of the opposition, ere sorry member of the opposition. So gentlemen I'm just letting you know a little bit of my background. I'm just not a bloke that's a bum in a front bar pub, or anything like that.
(Kelly) None of us are bums in the pub.
(Rothnie) No, ok. So gentlemen I want you to go start on this letter, December 11th letter, or " letter of warning", you've most probably seen it or read it.
There followed some discussion with respect to the content of, and incidents referred to, in the Letter of Warning. Having done so the following exchanges then occurred:
(Rothnie) You can see there by the hours that it's not right because it's mentioned four times out of the first five lines, (the fan). That's just a slip of the tongue. The hours there, my hours there are not cheating anything. That is frivolous.
My point is: YOU CAN NOT BE CHARGED FOR AN OFFENCE OR THREATENED TO BE SACKED ON SOMETHING THAT IS A GUIDELINE.
His letter of warning is out of order.
(Cooper) We have been up and down this track.
(Rothnie) We may have been up and down it but we have not clarified it yet. The only way to clarify it Gentlemen, I believe I have a very strong case now to go to arbitration and I am afraid I am having to go that way.
(Cooper) So we've got your reports from C.B.D.
(Rothnie) I don't care what the report says.
(Cooper) You don't care about that.
(Rothnie) I could show it to you now eh!
(Cooper)- Is it not relevant.
(Rothnie) Well it varies, as you said to me the other day that I took a photo that was old hat.
(Cooper) Mmmmmm.
(Rothnie) We've been around, Simon's (Lack), taken photos of the rest of them, they are exactly the same as the rest of them before it crashed ....... We are not here to talk about that.
So gentlemen the ball is in your court. There is clearly victimisation, bullying and all the rest of that stuff, plus the verbal abuse that I have had and been subjected to, you know, fire dampers " all been done before", all this sort of stuff, I think I have a very good case to go to arbitration.
Once I go to arbitration all these photos are going to come out I'm afraid because that is going to substantiate my claim, so the media will be in.
(Cooper) But the photos are not relevant.
(Rothnie) They were relevant at the time.
(Cooper) Not really, no to ................
(Rothnie) Steve that will be up to the arbitrator, I can show you more, I can show you more, that is not a problem.
(Cooper) JUST SOUNDS LIKE YOU ARE THREATENING US!!
(Rothnie) Well it's up to you I don't have a problem, but if I'm going to walk out the door and go to arbitration I'm telling you now I'm going out the door and turning right I'm going to Kim Hames, I'm going to the opposition and I'm going to open up fire .... ok.
(Cooper) Mmmmmmmmm.
(Rothnie) As long as we clearly understand each other gentlemen that's all I wish to say, I think I can put it in writing, I want an apology from Mr Gaffey, verbally and in front of a meeting, written to me.
Further discussion ensued about whether or not the BEIMS was a guideline and then the following was said:
(Rothnie) Mmmm ok. So gents ............ If you want a bit of, here's what we are looking at gentlemen.
(Kelly) LET'S NOT THREAT
(Rothnie) Well I'm only advising, Stephen got upset the other day because I didn't go through him, I'm only telling you my intentions.
THAT'S ALL.
(Kelly) Well your intentions are to breach hospital policy: which is a sack able offence: THAT IS YOUR INTENTION.
(Rothnie) It is not in my job description or the document I signed.
(Kelly) Have you read the policies.
(Rothnie) It is not in my job description or the document I signed.
(Kelly) You must follow all hospital policies.
(Rothnie) Well we will have to argue that in court too.
(Kelly) It's not here or there YOUR threatening us with the media, let's talk about what it is that you are trying to achieve.
(Rothnie) Well if I'm going to have to stay here for the next two years and put up with Gaffey, then one cowboy has to go.
(Kelly) “Laugh” so you want us to sack Steve Gaffey.
(Rothnie) Or me.
(Kelly) Well that's not how it works.
(Rothnie) Not how it works????
(Kelly) Why should we sack Steve Gaffey?
(Rothnie) BECAUSE HE IS INCOMPEDENT, IT HAS BEEN PROVEN THAT WAY, INVARIABLY IN ALL THESE ISSUES.
(Kelly) THAT'S RIDICULOUS.
(Rothnie) Ok all right gentlemen I can only be as fair as I can be.
(Kelly) You can't tell us that it's either him or you.
(Rothnie) Well it's going to be a very rocky road for relationships then isn't it?
(Kelly) THAT'S LIFE !!!
(Rothnie) Life doesn't worry me like that, I've most probably had more hips and shoulders than most probably you two blokes put together.
(Kelly) I'm sure you have.
(Rothnie) Just get up and get on with the game.
(Kelly) What are you trying to achieve! !
(Rothnie) If you want me to go I'll walk and I'll give you my file.
(Kelly) What are you trying to achieve ! !
(Rothnie) If you buy me out I'll go.
(Kelly) Buy you out.
(Rothnie) Yes.
(Kelly) Which is what?
(Rothnie) Which is what .......... As in.
(Kelly) Buy you out.
(Rothnie) Compensate me, pay me my two years!, I intend to stay
here!.
(Kelly) So you want us to pay you two years' salary.
(Rothnie) Yes.
(Kelly) Sounds a lot like BLACKMAIL
(Rothnie) Whatever, this going .............. Repair hospital?
Kelly) we're getting an independent review of the air-conditioning.
(Rothnie) Ok.
(Kelly) Which is an appropriate management response to your concern.
(Rothnie) Yep, Ok.
(Kelly) What exactly are we paying you out for??
(Rothnie) We have got a meeting with Public Health of the 28th, 29th of Feb, I want to ensure they know about it and I want to show them around, okey doke. Ok Gentlemen.
(Kelly) YOU'RE THREATENING US!! And now you told us, that you threaten us that you want this to be brought out.
(Rothnie) That's a fair comment isn't it!! You made my life miserable for me.
(Kelly) IT'S BLACKMAIL.
(Rothnie) IT'S NOT BLACKMAIL.
(Kelly) You're threatening us.
(Rothnie) According to Mr Gaffey's words I'm not doing my job properly.
(Kelly) You threatened us with the media.
(Rothnie) I've got to live on a knife's edge.
(Kelly) You threatened us on a range of fronts.
(Rothnie) I'm not threatening you, I am telling you what my intentions are - there is a difference.
(Kelly) Or we pay out.
(Rothnie) Well if you want to get rid of me and it seems like Mr Gaffey does by all the evidence that I've got here.
(Kelly) I think he's written you a letter in relation to ......... .
(Rothnie) No there's more than letters, there's more than letters, there's lots of incidents, lots.
(Kelly) Yeah, it's disappointing Ian.
(Rothnie) “That's Life” another hip and shoulder that's all. Anyway gentlemen that's all I can say, I believe his letter of warning is completely invalid. Ok.
(Kelly) And if we come to the same conclusions where do we stand then?
(Rothnie) Same conclusion as in?
(Kelly) As in, because that was not, um procedure or policy it was a guideline, if we say RETRACT that letter, where do you stand then?
(Rothnie) Retract which letter??
(Kelly) Your letter of warning, your letter of warning.
(Rothnie) It's not worth two nibbly notes of goats, it's not even valid now, I could rip it up right now and put it in the bin, IT'S NOT VALID.
(Kelly) So your bottom line is, no matter what happens even if that gets retracted, even if you get an apology you want to get paid out.
(Rothnie) Apologies nothing.
(Kelly) Apologies nothing. A minute ago that was what you wanted.
(Rothnie) I do want it.
(Kelly) No you've put your cards on the table all you've ever wanted is to get paid out.
(Rothnie) Yes.
(Kelly) On what grounds are we paying you out?
(Rothnie) You don't have to, it's not compulsory. Again but if I'm going to have to put up with Gaffey for the next two years it's going to be BEDLAM.
(Kelly) I haven't got grounds to pay you out.
(Rothnie) If you were going, or getting paid out, or you were getting the sack you would have to be paid out because you're on contract, happens every day in business.
(Kelly) We don't pay out on someone who wants to go.
(Rothnie) Just offering you two alternatives, redundancies.
(Kelly) Redundancy.
(Rothnie) Yes it's a nice word.
(Kelly) Won't get you two years though.
(Rothnie) That's for you gentlemen, you have the “Minister for Finance” here.
(Kelly) " Laugh", he's not the minister. So we can pay you a redundancy but it won't be for two years.
(Rothnie) If I don't get my two years, deals off gentlemen, deals off. If I haven't got an answer by five past nine on Monday gentlemen, there it is gentlemen, should I not have an answer by five past nine proceedings will start forthwith.
(Kelly) You're threatening us.
(Rothnie) I'm not making a threat, I'm telling you.
(Kelly) What proceedings are you talking about.
(Rothnie) One is arbitration.
(Kelly) Who are you " arbitrating", you haven't been sacked.
(Rothnie) One is unfair harassment and intimidation.
(Kelly) There is a process, that's not arbitration.
(Rothnie) Well we've been down the road of process, we've been to Stephen (ere), Peter McKay, to H.R. bloke, nothing happens.
(Kelly) What's your union fellow say??
(Rothnie) What did he say?? Ring him. Ring him and ask him!! Nothing wrong with that is there??
Ok gentlemen, I think that's all I have to say, you're busy men. Satisfied, any questions.
(Kelly) That you just laid a bunch of threats on us??
(Rothnie) Not threats.
(Cooper) What else are they?
(Rothnie) Stephen, you said you wanted to be involved, I'm just telling you what my intentions are.
(Cooper) ............. (To go to arbitration??)
(Rothnie) You say I'm threatening you, what did Mr Gaffey do, threaten me with a heap of " crap", threaten my lively hood with a heap of " crap", did you care about that?
(Cooper) We did care.
(Rothnie) You did care, you brought me over some lollies and everything, “it was nice of you”
(Cooper) .................
(Rothnie) Well for the last three months you have been putting shit on me and supporting Gaffey.
(Cooper) I haven't been putting any such thing on you at all.
(Rothnie) Your comments in your reply was Gaffey, Gaffey, Gaffey and thanking me, thanking me for bringing it to your attention, it's not my job to bring it to your attention, IT'S GAFFEY'S JOB, he's not doing his job. You don't understand that.
(Kelly) Are you genuinely looking at this redundancy.
(Rothnie) I will tell you what I'm entitled to; $100,000. Industrial Compensation (I'm sure I'll get that), $120,000 two years' salary, $30,000 premium - good will of hospital.
(Kelly) That's complete blackmail.
(Rothnie) Call it what you like - ok. That's it gentlemen.
(Kelly) That's your bottom line?
(Rothnie) That's it.
(Kelly) You just told us you want $250,000, otherwise what?
(Rothnie) I'll go down the process .................
(Kelly) What process?
(Rothnie) The process of Industrial Court and if there's any avenues whatsoever of Civil Law Suits, I'll attempt them, I'm not short of a dollar.
(Kelly) Good.
(Rothnie) And the name of the hospital will be at stake.
(Kelly) THAT'S A THREAT, THAT'S A STRAIGHT OUT THREAT.
(Rothnie) I'm telling you the truth, that's not a threat. Once I take the media to the Industrial Court, there'll be photo's in the paper and it's on and I'm telling you now before it happens, so don't come to me after it happens, cos I've told you, is that fair.
(Kelly) Where do you think this is going to end for you IAN?
(Rothnie) Same place as Gaffey I suppose.
(Kelly) WHAT'S THAT?
(Rothnie) I don't know? On the rubbish tip.
(Kelly) Here I am offering you a legitimate redundancy.
(Rothnie) You haven't as yet?
(Kelly) I just said if I was to offer you a legitimate redundancy.
(Rothnie) I've thrown a figure in the ring.
(Kelly) All we can do is work out a legitimate redundancy.
(Rothnie) Make it worthwhile.
(Kelly) It is what it is, there's a policy about redundancies.
(Rothnie) If you think I'm going to take three weeks' pay.
(Kelly) No it's not three weeks' pay. It's determined by .............
(Rothnie) I've got two years left in my life, I'm not going to get a job anywhere else.
(Kelly) But you can't expect us just to pay you two years.
(Rothnie) Well put up with me for two years, it's simple, there's no argument about that.
(Kelly) So you're not interested .................... redundancy
(Rothnie) Make it worthwhile, that's all I'm saying.
(Kelly) We can only make it worthwhile what the policy says its worth.
(Rothnie) POLICIES MEAN NOTHING.
(Kelly) IAN.
(Rothnie) I've been down this road with Stephen on many times about Gaffey's policies and nothing happened, so they mean nothing.
(Kelly) IAN I’m asking the question, do you want us to put a legitimate redundancy offer to you?
(Rothnie) You can put an offer to me yes, but make it worthwhile, don't waste my time, OK. By five past nine Monday morning. I'm sorry, that's the deal.
(Kelly) You can't specify a time.
(Rothnie) I can't!!! We're told what to do and when to do it, how to do it.
(Kelly) It has to be reasonable.
(Rothnie) That's reasonable!!
(Kelly) You are threatening me. YOU ARE THREATENING ME IAN AND I'M GETTING VERY ANGRY.
(Rothnie) You can get angry, it's not a problem.
(Kelly) You've blackmailed.
(Rothnie) I'm not blackmailing.
(Kelly) Blackmailing. We've told you if your concern is in relation to air-conditioning.
(Rothnie) My concern is the lies that Gaffey tells you guys and that you believe him, that's my concern.
(Kelly) You told us previously that your concern was in the relation as to the inadequacies of air-conditioning.
(Rothnie) As well and that's his lies.
(Kelly) We're conducting a review into that, shouldn't you be satisfied with that??
(Rothnie) NOTHINGS happened in the last twelve months, it's all documented, every bit of it.
(Kelly) But your bottom line is you want to get paid out.
(Rothnie) If I brought my other file over it's that thick two to three inches, Stephens seen it.
(Cooper) I haven't actually seen it, I've only ................. ?
(Rothnie) I had it here the other day on the desk.
(Cooper) Oh yes you showed some photo's that's true.
(Rothnie) Ok gentlemen, end of story.
(Kelly) END OF STORY: Do you, or do you not want us to put a legitimate redundancy offer to you?
(Rothnie) You can put an offer to me yes, but gentlemen what I'm saying is make it worthwhile.
(Kelly) I am saying there is a redundancy arrangement and policy I will follow I don't breach policy it's not three weeks I can tell you that much.
(Rothnie) You can put it to me ................
(Kelly) How many years have you been working here!!
(Rothnie) Two and a half.
(Kelly) Two and a half-yes. Probably is two weeks then. You've only been working here two and a half years, where did you come from.
(Rothnie) Where did I come from??? Refrigeration and air-conditioning. In fifty years no one has ever threatened me with negligence. That's what hurts more than anything!
(Kelly) But you just said a retraction of that letter's not going to have any difference on that either.
(Rothnie) But it's not now worth the paper it's written on.
(Kelly) So you've left us with an option to pay you a lot of money (yes), or what.
(Rothnie) I think that's fair. Alright, just put up with me for two years.
(Kelly) Put up with you for two years !!?
(Rothnie) Ok put up with me for two years, ok. Thank you gentlemen.
(Kelly) Right.
(Rothnie) I forgot to show you these, this is your own air-conditioning here, shit in your house, Saint John of God House, everyone breathing it all day, every day. Thanking you gentlemen.
(Extracts transcribed without amendment from transcript of 10 February 2012 meeting at Annexure IDR-17 to the Rothnie July 2014 Affidavit).
At the 10 February 2012 meeting Mr Rothnie put forward that he ought to be paid $250,000 as a “redundancy”, but which included a sum of $30,000 which he described in the meeting as a “premium for the good will of the Hospital”. The Court notes that this is what is said on the recording of the 10 February 2012 meeting which is Exhibit 12, and that the word “for” has not been transcribed on the 10 February 2012 meeting transcript. Mr Rothnie also wanted Mr Gaffey to be removed from his post: TD3 at page 28.
Mr Rothnie gave evidence that he felt he was lawfully entitled to the sum of $250,000: TD2 at page 144, but that he had not:
a)considered his entitlements under his employment contract: TD2 at pages 123 and 124; and
b)not obtained legal advice: TD2 at page 145,
and accepted a suggestion from the Court that the $250,000 was calculated based on an assumption that he would be successful in the litigation (or arbitration) that he referred to in the 10 February 2012 meeting: TD2 at pages 145-146.
Mr Cooper’s evidence was that Mr Rothnie was evincing an intention to involve the media in a dispute if he did not receive money and that he was linking the media with his demand for money: TD3 at pages 24 and 28, and made this clear in a passage under cross-examination where, in reference to Mr Rothnie, Mr Cooper said as follows:
Well, he made threats that he would take his complaints to arbitration and that at that time photos that he had in his possession would be made public. He made us aware that he had access to the media, made it clear that you know, that the problems would go away if we paid him as sum of money …
That was my impression. I know Mr Rothnie read from prepared notes a breakdown of the sum he was seeking. It was very clear.
TD3 at page 24.
Mr Cooper said that Dr Kelly made it clear that releasing photographs to the media of Hospital premises was a breach of Hospital policies, but that by the end of the 10 February 2012 meeting there was a threat in place, which included going to the media, and that that threat would only be removed if Mr Rothnie was paid the money that he had asked for, and that if it was not paid then he would release the photographs (which Mr Cooper considered the Hospital’s confidential information) into the public domain: TD3 at page 28.
Mr Cooper said that no decision had been made prior to the 10 February 2012 meeting to terminate Mr Rothnie’s employment: TD3 at page 27. Mr Cooper also said that in his view Mr Rothnie evinced an intention not to perform his duties under his employment contract in the future properly: TD3 at page 29.
Dr Kelly gave evidence that:
a)it became very clear to him what Mr Rothnie was trying to achieve when he turned over a page and had calculations totalling $250,000 which was the sum that Mr Rothnie sought that the Hospital pay him to make “the whole thing go away”: TD2 at page 191;
b)it was clear to him that Mr Rothnie “was expecting a significant financial sum to be paid to him”: TD2 at page 192;
c)he warned Mr Rothnie that making photographs in Mr Rothnie’s possession of Hospital premises public and taking the action that Mr Rothnie was suggesting was against the Hospital’s policy and would result in his dismissal: Kelly October 2013 Affidavit at [12]-[16];
d)he was unaware of Mr Rothnie’s rights under the FW Act: TD2 at pages 186-187;
e)he gave consideration to Mr Rothnie’s redundancy entitlements given his period of service at the Hospital, but as he had not been at the Hospital for a long period of time, knew that the redundancy would not be anywhere near the $250,000 that Mr Rothnie had asked for: TD2 at page 187;
f)although Mr Rothnie said he was not threatening the Hospital Dr Kelly said that what Mr Rothnie said and what he was doing were two different things: TD2 at page 193;
g)he understood that Mr Rothnie was applying pressure in an endeavour to make the Hospital pay him to retire two years early, and considered, at the time of the meeting, that Mr Rothnie was trying to “blackmail” or threaten the Hospital: Kelly October 2013 Affidavit at [19], and in re-examination when asked why he understood that Mr Rothnie was attempting to “blackmail” the Hospital said:
It was very clear by the time we reached the end of the meeting that Mr Rothnie was expecting a very significant sum of money to be paid to him. He came prepared to that meeting and had written down the components of that request for funding and then proceeded to make what is pretty clearly outlined here in this transcript a number of threats if we did not pay that $250,000 to him.
TD2 at page 201 (the reference to the “transcript” is a reference to the transcript of the 10 February 2012 meeting); and
h)he understood Mr Rothnie to be saying that unless he was paid the money, and got what he wanted, then he would stay at the Hospital and that the Hospital would have to put up with him, and that life would be very difficult for Mr Gaffey: TD2 at page 186.
In cross-examination Mr Rothnie conceded that Dr Kelly might have had good reason to think that Mr Rothnie was threatening the Hospital during the 10 February 2012 meeting. Mr Rothnie said: “Yes that’s possible”: TD1 at page 113.
Mr Rothnie told Dr Kelly and Mr Cooper during the 10 February 2012 meeting that the $250,000 that he sought was comprised of:
a)$100,000 industrial compensation;
b)$120,000 for two years’ salary; and
c)$30,000 as a premium for the goodwill of the Hospital: TD1 at page 112 and see [x] above.
Mr Rothnie said that he had prepared a calculation to the above effect before he attended the meeting on 10 February 2012: TD1 at page 113.
Mr Rothnie gave some contradictory evidence about how and what he was communicating at the 10 February 2012 meeting. Firstly, he did not agree that what he communicated to Dr Kelly and Mr Cooper was that he would take matters, including his file of photographs and other material, to the media: TD1 at page 115. Mr Rothnie did however accept that he was “playing pretty hard” at the 10 February 2012 meeting: TD1 at page 116. He accepted that:
a)he was attacking the Hospital;
b)threatening the Hospital’s reputation; and
c)threatening to commence proceedings as one way of getting photographs, which he considered would embarrass the Hospital, into the media,
but then sought to move away from the concession that the threat to commence proceedings was one way of getting the photographs into the media: TD1 at page 116.
At one point whilst under cross-examination, Mr Rothnie asserted that in releasing the information or photographs he was acting under a duty under the Public Interest Disclosure Act 2003 (WA) (“PID Act”), but this issue was not pursued in final submissions. In any event, the PID Act does not apply because the information was not “public interest information” as defined in s.3 of the PID Act and the Hospital is not a public authority as defined in the PID Act.
Dr Kelly prepared a contemporaneous record of the substance of the matters discussed at the 10 February 2012 meeting and Mr Cooper prepared a typed note of what was discussed at the 10 February 2012 meeting. Neither takes the matter any further than the 10 February 2012 meeting transcript, but it is relevant to note that Dr Kelly prepared his note in case the police wished to pursue the matter: Kelly August 2014 Affidavit at [4]; Kelly October 2013 Affidavit at Annexure SPK2; Cooper Affidavit at [42] and Annexure SAC10; TD2 at page 183, which is indicative of the seriousness with which he viewed Mr Rothnie’s conduct at the 10 February 2012 meeting.
Police report
After the 10 February 2012 meeting Dr Kelly directed Mr Cooper to report the matter to the police, which Mr Cooper did, with Mr Cooper subsequently being interviewed by two police officers: Cooper October 2013 Affidavit at [45].
It is unnecessary to set out the content of either Dr Kelly’s note or Mr Cooper’s note of what occurred at the 10 February 2012 meeting as they take the matter no further than the 10 February 2012 meeting transcript.
Stand down
After the 10 February 2012 meeting Mr Cooper spoke to the Hospital’s Director of Workforce Development, Ms Chapman and told her what had happened in relation to Mr Rothnie and the 10 February 2012 meeting. Ms Chapman told Mr Cooper that Mr Rothnie’s conduct could be serious misconduct and required investigation: Cooper Affidavit at [43]; Chapman October 2013 Affidavit at [12]. Ms Chapman advised Mr Cooper that Mr Rothnie should be stood down, and that the matter should be investigated in accordance with Hospital policy relating to performance and misconduct, and in particular, the Hospital’s policy on “managing unacceptable performance/misconduct”: Chapman October 2013 Affidavit at [12] and Annexure SRC2. The performance/misconduct policy contained a serious misconduct definition at clause 4.4.1 as follows:
Serious misconduct includes wilful or deliberate behaviour that is inconsistent with the continuation of the caregiver’s employment; and conduct that causes imminent and serious risks to:
…
· the reputation, viability or profitability of … [the Hospital] ….
A meeting was subsequently arranged for 13 February 2012 at which Mr Rothnie, Mr Cooper and Ms Chapman attended, and Ms Chapman handed to Mr Rothnie a letter dated that day, which Ms Chapman had prepared, and which Mr Cooper read aloud to Mr Rothnie: Chapman October 2013 Affidavit at [21]. The letter is in the following terms:
Dear Ian
This letter ls in response to the meeting, held at your request, on 9am Friday 10th February 2012 between yourself, Dr Shane Kelly, Chief Executive Officer and Stephen Cooper, Director Corporate and Financial Services.
It is alleged that during the course of this meeting you made a number or assertions and veiled threats, specifically:
1. that you are well connected in sporting, community and media circles, as well as to Minister Kim Hames and MP John Quigley;
2. that you have in your possession a series of photographs of mould on airconditioning coils and dirt in air-conditioning ducts at St John of God Subiaco Hospital;
3. that you could not continue to work with Steve Gaffey, Chief Engineer, and that either he or you should leave the hospital's employment;
4. that your issues would be resolved by the hospital 'paying you out'. You specified that you wanted a payout of $250,000 ($100,000 for industrial compensation, $120,000 for 2 years lost income and $30,000 to maintain the hospital's goodwill);
5. that if your issues are not resolved you would commence an application for arbitration and present the photographs as evidence which could attract media attention; and
6.that you expect a response from us by 9.05am on Monday, 13th February 2012.
We advise that your alleged conduct in the meeting is viewed as serious misconduct and in the event that the allegations are· upheld, your employment with St John of God Subiaco Hospital will be terminated without notice.
I now advise· you that you are stood down (on pay) effective immediately and until such time as a decision has been made in relation to your alleged serious misconduct.
I further advise that you are not permitted to enter any part of the premises of this hospital or any other SJGHC facility, unless specifically invited and then such access is restricted to the area specified in the invitation, and that you must surrender all keys and access passes immediately.
We will meet at 11am today, St John of God House, to give you the opportunity to respond to the allegations of serious misconduct. Stephen Cooper, Director Corporate and Financial Services, Shellee Chapman, Director Workforce Development and Stephanie Wade, Personal Assistant (Minute taker) will be in attendance at this meeting. You are welcome to bring a representative or support person with you to this meeting.
A private meeting room and telephone will be made available to you to assist you in your preparation for this meeting.
We note that you have various photographs of the hospitals air-conditioning plant which have come into your possession as a result of your employment. You have implied that you intend to release those photographs to the media. We would regard the public release of the photographs, without either our written consent or an order from a court or tribunal, as a breach of both your duty of confidentiality and of your implied duty of good faith arising from your employment. Should this occur we will vigorously pursue our legal rights.
Regards
Shellee Chapman
Director Workforce Development
On 14 February 2012 Mr Rothnie did not attend for work, and on 27 February 2012 he went on workers’ compensation, and remained so, it would appear, until the day before the termination of his employment, which was effective from 24 September 2012: Jones Affidavit at [29]; Kelly October 2013 Affidavit at [35]-[37] and Annexure SPK3.
Investigation into Mr Rothnie’s conduct
Ms Chapman investigated Mr Rothnie’s conduct as required by the Hospital’s policies: Kelly August 2014 Affidavit at [6]. At the time of the investigation Ms Chapman was not aware that Mr Rothnie had raised concerns about OSH issues, and she remained unaware of those issues until after the termination of Mr Rothnie employment. Ms Chapman did not read Mr Rothnie’s personal file because she was investigating a specific allegation in relation to Mr Rothnie’s conduct: Chapman October 2014 Affidavit at [13]; TD3 at page 39. Because Mr Rothnie had not returned to work by 16 August 2012 Ms Chapman sent him a letter inviting him to respond to the allegations of serious misconduct, an invitation which Mr Rothnie did not take up: Chapman October 2013 Affidavit at [31]-[32] and Annexure SRC5. A meeting was however arranged for 24 September 2012 to hear Mr Rothnie’s response to the allegations of serious misconduct. Ms Chapman attended that meeting with Mr Jones, and Mr Rothnie attended with Mr Giddens: Chapman October 2013 Affidavit at [26]. A transcript of that meeting appears at Annexure IDR-18 to the Rothnie July 2014 Affidavit and a recording of it is Exhibit 13. Ms Chapman was a person responsible for making a final decision as to whether or not Mr Rothnie’s conduct at the 10 February 2012 meeting constituted serious misconduct: Chapman October 2013 Affidavit at [46]. Ms Chapman says that she listened to Mr Rothnie’s account of events, and adjourned the 24 September 2012 meeting to consider his version of events, and having done so, considered it more probable than not that Mr Rothnie had intended to end his employment relationship with a payout or he would otherwise have published the photographs he had and thereby damaged the reputation of the Hospital. She therefore considered that it was appropriate to terminate Mr Rothnie’s employment on the grounds of serious misconduct: Chapman October 2013 Affidavit at [58] and [60]-[61]. Ms Chapman said that:
a)Mr Rothnie’s conduct at the 10 February 2012 meeting broke the trust and confidence between employer and employee and indicated to her that Mr Rothnie would not honour his employment contract; and
b)she took into account Mr Rothnie’s emails to persons within the Hospital and to external parties on 2 February 2012, and considered that Mr Rothnie’s conduct on that occasion and on 10 February 2012 struck at the heart of the employment relationship and that the relationship of trust and confidence had been irreparably damaged: Chapman August 2014 Affidavit at [7]-[11].
Under cross-examination Ms Chapman:
a)said she did not look at whether or not Mr Rothnie was exercising a workplace right in indicating that he was going to arbitration, but rather whether his conduct was a breach of trust and confidence, and whether that conduct led her to believe that Mr Rothnie was serious in his intent: TD3 at page 42;
b)said she did not believe that Mr Rothnie simply got carried away in his meeting with Dr Kelly and Mr Cooper on 10 February 2012, particularly when:
i)Mr Rothnie called the meeting, and designated who was to attend the meeting; and
ii)Mr Rothnie had prepared a calculation of the money that he sought at that meeting;
c)disagreed with the suggestion put to her that she would be likely to agree with Dr Kelly because he is a person of status in the Hospital, and said that she was an executive in the Hospital who often had to disagree with Dr Kelly in her role which was to advocate and speak out if she disagreed with Dr Kelly, and that if she had disagreed with Dr Kelly’s views she would have said so, and that she took the allegations seriously, and investigated as she would no matter who had made the allegation: TD3 at page 47;
d)denied allegations that she was bullied and strongly influenced by Dr Kelly into making a decision to terminate Mr Rothnie: TD3 at [52]; and
e)denied that Mr Rothnie was terminated because he had exercised any workplace right, and said that that was not part of her decision-making process, and she never even considered the question of his exercising a workplace right: TD3 at page 52.
The decision to terminate Mr Rothnie’s employment
Having considered Mr Rothnie’s version of events, and made a decision, Ms Chapman met with Dr Kelly and requested his permission to terminate Mr Rothnie’s employment, telling Dr Kelly that she considered Mr Rothnie’s conduct was serious misconduct and that the Termination of his employment was appropriate: Kelly August 2014 Affidavit at [8]. Seeking Dr Kelly’s permission to terminate Mr Rothnie’s employment was in accordance with the Hospital’s policy: Chapman October 2013 Affidavit at [62].
Dr Kelly gave his permission to terminate Mr Rothnie’s employment and signed the Letter of Termination which was sent to Mr Rothnie dated 26 September 2012 confirming the termination of Mr Rothnie’s employment effective from 24 September 2012. The Letter of Termination: Kelly October 2013 Affidavit at Annexure SPK3, is in the following terms:
Dear Ian,
RE: Termination of Employment
This letter is to confirm the termination of your employment with SJOG Subiaco Hospital effective Monday 24th September 2012.
The Hospital has fully investigated the facts and circumstances surrounding the allegations provided to you in letters dated 13 February 2012 and 16 April, 2012.
You were initially given the opportunity to respond at a meeting scheduled for 14 February 2012, which you did not attend due to sick leave (which you have subsequently been on up until 23/09/2012). In our letter to you dated 16 August 2012 we invited you to respond either verbally or in writing to the allegations, which you declined citing that you were not fit enough due to health concerns.
Following the provision of the medical certificate dated 17/09/2012 indicating you were now fit to return to work (with restricted hours) from the 24/09/12, the Hospital advised that a meeting would be scheduled with Shellee Chapman, Director Workforce Development and Darren Jones, Manager Human Resources to address the outstanding allegations of serious misconduct.
You provided a response at the meeting on Monday, where Andy Giddens, Organiser, CEPU was also present as your support person. After adjourning the meeting to consider your response and all relevant matters, we reached the decision to terminate your employment on the following grounds:
·Your unacceptable behaviour at the meeting on 10th February 2012 where you:
oOutlined your connections with various politicians and the media;
oSought a retraction of a previous written warning and an apology;
oStated that if this did not occur, that you would proceed to arbitration at which time photos in your possession would become public;
oIndicated that the Hospital should pay you (you read from a prepared document) $250,000 comprising $100K for industrial compensation, $120K for 2 years lost income and $30K for maintaining the Hospital’s goodwill; and
oThat if you were to stay at the Hospital for 2 years you’re [sic] your Manager had to go or life would be difficult otherwise.
·We also considered your prior behaviour on 2 February 2012 where you inappropriately emailed internal (various Directors and Managers) and external parties a number of pictures of various hospital air conditioning filters/ducts with accompanying statements. A number of the issues you highlighted had already been or were in the process of being resolved prior to your email being distributed.
Your behaviour has been unacceptable and is considered to be misconduct. The Hospital can no longer employ you in a role where trust is implicit in the ongoing employment relationship. Therefore, your employment is terminated effective Monday 24th September 2012. In accordance with clause 9(2)(b) and (d) of the SJGHC Maintenance Caregivers Agreement 2011, you will receive 3 weeks pay in lieu of notice, plus four hours pay for 24/09/2012.
Your final pay for the above, plus any outstanding leave entitlements owing, will be deposited into your bank account by the end of this week.
You are required to return any keys, uniforms, identification badge and any other SJOGSH property within one (1) week. Please contact Aaron Krauth, Manager Security & Grounds on … [telephone number deleted] to organise a time to return these items and collect any personal items from your locker if applicable. If you do not wish to personally return or collect these items, you may nominate a representative and advise Mr Krauth.
Yours sincerely
Dr Shane Kelly
Chief Executive OfficerSt John of God Subiaco Hospital
Dr Kelly said that there were no other reasons for the termination of Mr Rothnie’s employment and the Letter of Termination contained all of the grounds for Mr Rothnie’s termination: Kelly August 2014 Affidavit at [12]-[13].
Consideration
In relation to the alleged breaches of Mr Rothnie which are said by the Hospital to amount to “misconduct” in the Letter of Termination Mr Rothnie says that they were, can and should be interpreted as constituting the mere exercise of workplace rights under s.341(1)(c) of the FW Act, namely a right to complain or make an inquiry to an employer. It is arguable that the concept of what constitutes a complaint or inquiry might be constituted by matters having no basis in any statutory, regulatory or contractual right or entitlement conferred on an employee: Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908; (2013) 238 IR 307 at [141] per Jessup J; Evans v Trilab Pty Ltd [2014] FCCA 2464; (2014) 66 AILR 102-287 at [64]-[67] per Judge Lucev; and see V Lambropoulos, “Common Law and General Protections” (2016) 7 WR 118 at 119 (“Common Law and General Protections”), which can be compared with the more restrictive approach in Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; (2014) 242 IR 1; (2014) 314 ALR 346 at 625 per Dodds-Streeton J which requires that the complaint or inquiry underpinned by an entitlement or right usually arising out of contract of employment, award or legislation: Shea (No 6) at 625 per Dodds-Streeton J; Common Law and General Protections at 120. As was observed in Shea (No 6), however, there may be some complaints or inquiries which are not able to be made in relation to an employee’s employment for the purposes of s.341(1)(c)(ii) of the FW Act.
Even, however, on the broadest possible interpretation of what constitutes a complaint or inquiry there was no complaint or inquiry here by Mr Rothnie which constituted the exercise of any workplace right. When the transcript of the 10 February 2012 meeting is examined it can be seen that Mr Rothnie:
a)seeks to establish himself as a person of influence by referring to his football, racing and political connections;
b)raises his access to the media, saying that he had access to the media “just like that”, but qualified those comments, self-servingly in the Court’s view, by saying that was “not a threat or anything”, but which was correctly perceived to be so by Dr Kelly, and said that he had a very good case to go to arbitration, and all the photos would be going in, and that the media “will be in”;
c)said that he was going to arbitration, but immediately threatened that upon leaving the 10 February 2012 meeting he was going to “turn right” to go and see the then Minister for Health, Mr Kim Hames, and that he would going to the Opposition (having referred to his friendship with a prominent member of the opposition in Mr Quigley), saying that “I’m going to open up fire”;
d)when it was pointed out that his intentions were in breach of Hospital policy and that that was “a sackable offence” said that it was not in his job description or “the document I signed” (presumably a reference to his Contract of Employment);
e)said that the Hospital had to either sack Mr Gaffey or him, and that “if you buy me out I’ll go”, and then quantified the price of that as being two years’ salary;
f)when asked on what grounds he was to be paid out said that it was “not compulsory … but if I’m going to have to put up with Gaffey for the next two years it’s going to be bedlam”;
g)raised the prospect of a redundancy after Dr Kelly had said that the Hospital did not pay out “someone who wants to go”;
h)threatened arbitration for unfair harassment and intimidation if he did not obtain a response on the two year payout demand by a specific time;
i)specified an entitlement to $250,000 being $100,000 industrial compensation, $120,000 for two years’ salary and $30,000 for a premium for the goodwill of the Hospital, and indicated that he would be going to the “Industrial Court” and taking civil law suits and that the name of the Hospital would be at stake, and that once “I take the media to the Industrial Court, there will be photos in the paper and it’s on and I’m telling you now before it happens, so don’t come to me after it happens, cos I’ve told you, is that fair”; and
j)indicated that the Hospital could put a legitimate redundancy offer to him, but said that they to “make it worthwhile”, and that a redundancy offer in terms of the policy of the Hospital meant “nothing”.
For an employee to call a meeting with officers of his employer, tell them how well-connected he says he is, and to rely upon those connections, which included alleged political and media connections, as a basis for saying that if the Letter of Warning was not withdrawn and if he was not paid a sum of $250,000, or both, or that if Mr Gaffey was not sacked he would cause “bedlam” is not the exercise of a workplace right. Rather, it is a threat (as Mr Rothnie effectively conceded under cross-examination: TD1 at page 113), and, moreover, a threat with an intent to obtain a benefit, be it the withdrawal of the Letter of Warning, the payment of the sum of money, or both, or a referral to arbitration or the sacking of Mr Gaffey, or both, failing which Mr Rothnie proposed to again, not exercise a workplace right, but to release information obtained in the course of his employment, and at least some of which was confidential information, to third parties, including the media, in an endeavour to embarrass the Hospital.
What occurred at the 10 February 2012 meeting was not the raising and discussion of OSH grievances by Mr Rothnie but the making of a threat as set out above. That is not the exercise of a workplace right.
There is no dispute that Mr Rothnie coupled the threat with a statement that he would also seek “arbitration” in an endeavour to have the Letter of Warning withdrawn. Whilst Mr Rothnie was not able to articulate with particularity what form of arbitration he sought, it is fair to observe that some form of alternate dispute resolution may have been being suggested, and that the seeking of alternate dispute resolution is a workplace right under s.341(2)(a) of the FW Act. The Court notes, however, that arbitration under the terms of cl.45 of the 2011 Agreement may not have been possible given that it required a dispute “concerning the operation of this agreement”: 2011 Agreement, cl.45(1), one purpose of which was to vary the terms of the 2011 Agreement by arbitration for the purpose of removing ambiguity or uncertainty: 2011 Agreement, cl.45(3). In this case, there was no dispute about the operation of the 2011 Agreement, its terms were clear (including those which prevented Mr Rothnie from disclosing the Hospital’s confidential information), and nothing arising from Mr Rothnie’s issues with the Hospital related to possible variation of the 2011 Agreement for the purpose of removing ambiguity or uncertainty.
It was not however the seeking of arbitration, or some form of alternate dispute resolution, by Mr Rothnie that caused his employment to be terminated. It was, rather, the coupling of various non-workplace right demands for arbitration, with the threat to release confidential information (which the photographs were, as defined in both the Contract of Employment and the 2011 Agreement) publicly if not paid the $250,000. Had Mr Rothnie simply sought arbitration alone that would have been a workplace right to which no objection could be taken, and which could not form the basis for adverse action. Here, however, the basis for the adverse action was the threat to publicly release confidential Hospital information if the Letter of Warning was not withdrawn or the money was not paid, and in the case of a failure to withdraw the Letter of Warning, to proceed to arbitration, and the actual earlier release of confidential information to third parties by way of the 2 February 2012 Letter.
It is, seen in its proper context, not the initiation or participation in a proceeding, including a dispute settlement proceeding, to make a demand in a meeting such as that made in the 10 February 2012 meeting. The Court is reinforced in that view by the fact that the demand was clearly not a demand made in good faith, coupled as it was with the alternative of the public release of confidential information if the demand for money was not met, and, further, because the amount of money demanded was so significantly in excess of anything that Mr Rothnie might have then been entitled to or able to obtain in arbitration or otherwise as to be unrealistic. As indicated above, there may have been nothing capable of being referred for arbitration under the terms of the 2011 Agreement in any event. The basis for the so-called “Industrial Compensation” was very vague. The demand for two years’ salary for a redundancy was unrealistic as Mr Rothnie was only entitled to six weeks’ salary by way of redundancy, if he was entitled to a redundancy at all, which he was not because the Hospital had not determined that the job that he was doing was not required to be done by anyone, and, finally, the demand for $30,000 in relation to the goodwill of the Hospital had no legal or equitable basis, and, to put in common parlance, was little more than ransom money.
The Court does not need to deal with the question raised at hearing as to whether any offence for the purposes of ss.338A or 397 of the Criminal Code was committed by Mr Rothnie in relation to his conduct at the 10 February 2012 meeting. The criminality of any conduct by Mr Rothnie, if it be the case, was not the basis for the issuance of the Letter of Termination, and therefore does not need to be considered further by this Court.
Mr Rothnie says that it is open for the Court to find that in emailing documents internally he was simply exercising a workplace right conferred by s.20(1)(b) of the OSH Act which provides as follows:
(1) An employee shall take reasonable care —
(a) to ensure his or her own safety and health at work; and
(b) to avoid adversely affecting the safety or health of any other person through any act or omission at work.
Mr Rothnie says that he was following the terms or directions in the OSH Act by ensuring other staff members were aware of the OSH risk present in the Hospital, those risks having been repeatedly reported to management, and that all that he was doing was notifying staff members of serious potential OSH issues, and that that was not something which amounted to serious misconduct. Mr Rothnie’s termination of employment was not based upon the internal release of documents, but rather the actual (on 2 February 2012) and threatened (on 10 February 2012) external release of confidential information to third parties, and in those circumstances the internal sending of documents is not relevant to the issues before the Court.
What occurred on 10 February 2012 was no mere exercise of workplace rights by Mr Rothnie. Mr Rothnie had no workplace right or any legal entitlement:
a)to demand a sum of $250,000;
to a redundancy payment of 2 years, or otherwise, redundancy being a matter for the employer to determine whether or not the job that an employee was required to perform was no longer required to be performed: 2011 Agreement, cl.44(1); The Queen v The Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-Operative Limited & Ors (1977) 16 SASR 6; (1977) 44 SAIR (Pt 1) 1202; SASR at 8 per Bray CJ
b)to a $30,000 goodwill payment; and
c)to threaten to breach his Contract of Employment and the 2011 Agreement by threatening to release confidential information unless he was a paid a sum of money to which he had no entitlement.
There is no doubt that Mr Rothnie had a right to engage in appropriate dispute settlement procedures. But Mr Rothnie’s conduct at the 10 February 2012 meeting was not such engagement: it was, as outlined above, a demand or demands accompanied by a threat. The invoking of the dispute settlement procedure by either Mr Rothnie (if he was able to do so individually) or by the Union under the terms of the 2011 Agreement did not require the making of a threat to breach the Contract of Employment or the 2011 Agreement itself, by breaching the relevant confidential information provisions unless he was paid a sum of money. Mr Rothnie would have been entitled to indicate to the Hospital in the 10 February 2012 meeting that he was in dispute with them with respect to the various issues that he raised, and that he proposed to seek to take the matter to arbitration or some appropriate form of dispute settlement, and that if he did so it may be necessary to seek to have produced certain information or evidence in his or the Hospital’s possession. That course could have been taken without the necessity for any threat to be made by Mr Rothnie.
If Mr Rothnie considered that there was a serious OSH issue in relation to any of these matters it was open to him to lodge a complaint with Worksafe. There is no evidence that that was done. The reliance on the provisions of ss.19 and 20(1) of the OSH Act to argue that Mr Rothnie was exercising a workplace right at the 10 February 2012 meeting by threatening to breach his Contract of Employment and the 2011 Agreement by breaching the confidential information provisions by releasing information to politicians and the media unless he was paid a sum of money, is conduct which had nothing to do with the proper exercise of the complaint making process or the duties of an employee under the OSH Act.
There is nothing in the evidence in this case which suggests that Mr Rothnie would have been, or was, prevented or penalised in any way from raising OSH concerns. Rather, he did so regularly. When he did so the Hospital addressed those concerns, albeit not quickly enough for Mr Rothnie’s liking. The Court notes however that, for example, following the 4 August 2011 Complaint by Mr Rothnie, he was afforded the opportunity, within five days, to take Mr Cooper, the Director of Corporate Services and a senior executive in the Hospital, on a tour of those places in the Hospital where he said there were OSH concerns. Likewise, the 16 January 2012 Letter sets out the Hospital’s response to OSH concerns raised by Mr Rothnie. The evidence establishes, either expressly, or the Court can and does infer, that the Hospital would not have taken adverse action against Mr Rothnie on the basis of OSH issues or complaints raised by him, and did not do so.
The suggestion that Mr Rothnie’s conduct at the 10 February 2012 meeting was the exercise of a workplace right by making a complaint or inquiry defies credibility, particularly when it was so easy for him to simply say words to the effect of:
a)“I wish to make a complaint concerning the following occupational safety and health matters which in my view have not been properly attended to by the Hospital”; or
b)“If we are unable to reach agreement with respect to an appropriate outcome concerning these complaints I propose to initiate the dispute settlement procedure and take the matter to arbitration”.
Had Mr Rothnie put the matter on the basis set out in the previous paragraph, and had his employment been terminated as a consequence, then there would have been an arguable case that he had been terminated in breach of a general protection provision by reason of adverse action having been taken against him for making a complaint or exercising a right under the 2011 Agreement or under a workplace law.
The breakdown of mutual trust and confidence relied upon in the Letter of Termination is a breakdown for which Mr Rothnie says a person cannot be terminated because it is not a breach of an implied term of the Contract of Employment, relying on Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169; (2014) 88 ALJR 814; (2014) 244 IR 425; (2014) 312 ALR 356; (2014) 66 AILR 102-240 (“Barker”). The reliance by Mr Rothnie on Barker to suggest that there was therefore no basis for the termination of his employment is misplaced. Barker was handed down in 2014, and at the time of the termination of Mr Rothnie’s employment in September 2012 it is arguable that a duty of mutual trust and confidence was recognised in Australian law: Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191 per Wilcox CJ, Marshall and North JJ; Easling v Mahoney Insurance Brokers [2001] SASC 22; (2001) 78 SASR 489 at [99] per Olsson J; Thomson v Orica Australia Pty Ltd [2002] FCA 939; (2002) 116 IR 186 at [141] and [144]-[148] per Allsop J; Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] NSWSC 104; (2007) 69 NSWLR 198; (2007) 167 IR 121; (2007); 59 AILR 200-306 at [121]-[134] per Rothman J; Rogers v Millennium Inorganic Chemicals Ltd [2009] FMCA 1; (2009) 229 FLR 198; (2009) 178 IR 297 at [104]-[119] per Lucev FM. Even if there was not a duty of mutual trust and confidence as the High Court has found in Barker, the reason for the termination of Mr Rothnie’s employment is still not for a prohibited reason. The termination of employment was not because Mr Rothnie exercised a workplace right, which the Court has found he did not, but rather because of his threatening conduct in the course of the 10 February 2012 meeting. As the Court has found above the threat by Mr Rothnie to breach his Contract of Employment by threatening to release confidential information was not, in the circumstances of the 10 February 2012 meeting, the exercise of a workplace right, but a demand for money to which Mr Rothnie was not entitled. On any view of what constitutes misconduct as considered by various courts over more than a century, Mr Rothnie’s conduct in the meeting on 10 February 2012 was misconduct: Clouston & Co Limited v Corry [1906] AC 122 at 129 per Lord James of Hereford; Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 at 287-288 per Lord Evershed MR; North v Television Corporation Ltd (1976) 11 ALR 599; (1976) 177 CAR 1278; ALR at 608-609 per Smithers and Evatt JJ and 616 per Franki J.
In all of the above circumstances, the Court has concluded that Mr Rothnie’s conduct in the 10 February 2012 meeting was not the exercise of a workplace right, be it the making of a complaint or inquiry or the exercise of a right under the 2011 Agreement to engage in arbitration.
Conclusion and orders
The Court has concluded that Mr Rothnie has failed to establish any contravention of a general protection by reason of adverse action taken against him for a prohibited reason by the Hospital contrary to s.340(1) of the FW Act.
It follows that the application must be dismissed. There will be an order accordingly.
I certify that the preceding one hundred and fifty-one (151) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 14 December 2017
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