Rowland v Alfred Health

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FEDERAL COURT OF AUSTRALIA

Rowland v Alfred Health [2014] FCA 2

Citation: Rowland v Alfred Health [2014] FCA 2
Parties: MICHAEL ROWLAND v ALFRED HEALTH
File number: VID 1 of 2012
Judge: MARSHALL ACJ
Date of judgment: 15 January 2014
Catchwords: INDUSTRIAL LAW – adverse action – exercise of a workplace right – making of complaints – restructure – redundancy – whether complaint “in relation to employment” – whether adverse action taken for a prohibited reason – direct evidence of decision-makers concerning their reasons for the adverse action cogent and credible – statutory presumption displaced – making of complaints not a “substantial and operative” factor in decision to take adverse action
Legislation: Fair Work Act 2009 (Cth) ss 340(1), 341, 342, 361
Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1
Date of hearing: 13, 14, 18, 19, 25, 26 March; 3, 4 April; 6, 11, 12 June; 13 September and 18 November 2013
Place: Melbourne
Division: FAIR WORK DIVISION
Category: Catchwords
Number of paragraphs: 82
Counsel for the Applicant: Mr R Millar
Solicitor for the Applicant: Moray & Agnew
Counsel for the Respondent: Mr M Rinaldi with Ms A Forsyth
Solicitor for the Respondent: Hunt & Hunt

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION

VID 1 of 2012
BETWEEN:

MICHAEL ROWLAND
Applicant
AND:

ALFRED HEALTH
Respondent

JUDGE:

MARSHALL ACJ

DATE OF ORDER:

15 JANUARY 2014

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application is dismissed.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION

VID 1 of 2012
BETWEEN:

MICHAEL ROWLAND
Applicant
AND:

ALFRED HEALTH
Respondent

JUDGE:

MARSHALL ACJ

DATE OF ORDER:

15 JANUARY 2014

WHERE MADE:

MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

  1. Mr Michael Rowland is an experienced and highly competent cardiothoracic and transplant surgeon. From August 2001 until August 2011, he worked with the respondent, Alfred Health and its predecessor bodies. After a “spill and fill” restructure exercise undertaken by Alfred Health in 2010/2011, Alfred Health made Mr Rowland’s position redundant.

  2. Counsel for Mr Rowland, Mr Millar, contends that the restructure of the Cardiothoracic Unit at the Alfred Hospital (“the Unit”) was directed at Mr Rowland. Mr Millar noted that the restructure (which will be discussed more fully later in these reasons) arose out of the recommendations of an internal panel set up to investigate a complaint which Mr Rowland and another employee (Mr Negri) made against Professor Donald Esmore. Professor Esmore was, at the relevant time, the Director of the Unit. Mr Millar submits to the effect that Mr Rowland and Mr Negri were first chosen by a selection panel to be made redundant because they were the two individuals who had complained against Professor Esmore. Mr Millar observes that but for the “last minute withdrawal” of…

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Details
Case
[2014] FCA 2
Decision Date

CaseChat Overview and Summary

In the case of Rowland v Alfred Health, the applicant, Mr Rowland, alleged that his employment was terminated due to the exercise of his workplace rights, including making complaints about workplace safety and bullying. The primary dispute was whether the termination of Mr Rowland's employment constituted adverse action under the Fair Work Act 2009 and whether such action was taken for a prohibited reason. The court was required to decide if the restructuring of the Unit at Alfred Health, which led to Mr Rowland's redundancy, was adverse action and if it was motivated by the complaints he made. Additionally, the court needed to determine whether making these complaints constituted the exercise of a workplace right and if this was a substantial and operative reason for the adverse action.

The court found that the decision to restructure the Unit did constitute adverse action as it made the positions of all employees in the Unit less secure. This conclusion was based on the statutory definition of adverse action and precedent set by the case of Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia. Furthermore, the non-selection of Mr Rowland for a position in the restructured Unit was also deemed adverse action. The court rejected the argument that inaction could not constitute adverse action, stating that the termination of Mr Rowland's employment was the consequential adverse action. The court also dismissed the argument that the restructuring was motivated by the complaints Mr Rowland made, finding that the statutory presumption of prohibited reason was displaced by direct evidence of the decision-makers' reasons.

The court ultimately concluded that the making of complaints was not a substantial and operative factor in the decision to take adverse action. This conclusion was based on the evidence presented, which showed that the decision-makers' reasons for restructuring the Unit were not influenced by the complaints. The application was dismissed, and no orders were made in favour of the applicant.

Orders

Orders of the court

1. The application is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 19 August 2011, the Chief Executive Officer of Alfred Health, Mr Andrew Way, adopted the recommendation of the selection panel. On 23 August 2011, Mr Stripp told Mr Rowland that he was not successful in his application. On 25 August 2011, Alfred Health, by letter dated that day, informed Mr Rowland that his employment was terminated on the ground of redundancy. Mr Rowland continued to work until 30 August 2011.Did the decision to restructure the Unit constitute adverse action? Mr Rinaldi submits that the decision of Alfred Health to restructure the Unit did not constitute adverse action with respect to Mr Rowland. He contends that the decision to restructure the Unit involved non-discriminatory action in which all six employees subject to the restructure were in the same position, having to apply for a position in the Unit, with the potential of adverse action. The Court does not accept that submission. Adverse action includes, in s 342(1) of the Act, an alteration of an employee’s position to his or her prejudice. In accordance with Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at [4], subjecting an employee to a situation where he or she is compelled to re-apply for his or her position, with the threat of redundancy looming is an “…adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question”. The decision to restructure the Unit constituted adverse action against all employees employed in the Unit whose continued employment was put at risk by the “spill and fill” process. The position of all existing employees in the Unit was made less secure by having to re-apply for their jobs. Mr Rowland was one such employee.Did the non-selection of Mr Rowland for a position in the restructured Unit constitute adverse action? Counsel for Alfred Health submits that the non-selection of Mr Rowland for a position in the Unit was not adverse action but rather “inaction” in that there was a failure to appoint him. The Court rejects the submission that inaction cannot constitute adverse action. For example, an employee may be denied a promotion notwithstanding that he or she satisfied established criteria while others (who do not) are promoted. The non-selection of Mr Rowland was adverse action, but this issue is not one of consequence. That is because the parties agree and the Court accepts that the termination of Mr Rowland’s employment constituted adverse action. The decision of Mr Way to accept the selection panel’s recommendation and not select Mr Rowland for a position in the Unit had the logical flow-on effect that he was made redundant.REMAINING CRITICAL ISSUES IN DISPUTEDid Alfred Hospital restructure the Unit for the substantial and operative reason (amongst others) that Mr Rowland exercised his workplace rights by making the first to fifth complaints? Mr Millar submits that the restructure took place for reasons including the reason that Mr Rowland made the sixth complaint which led to the report of a panel headed by Associate Professor Johnson which recommended the restructure. Mr Millar asserts that the “spill and fill” idea arose as a means of “breaking the impasse between Mr Rowland and Professor Esmore”. In that context, Mr Millar relies on the first to fifth complaints but overwhelmingly on the sixth complaint. The Court has already determined that the sixth complaint did not involve the exercise of a workplace right.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.