Scard v Bairnsdale Regional Health Service
[2021] FCCA 339
•26 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Scard v Bairnsdale Regional Health Service [2021] FCCA 339
File number(s): SYG 2144 of 2019 Judgment of: JUDGE MCNAB Date of judgment: 26 February 2021 Catchwords: INDUSTRIAL LAW – fair work application – summary dismissal application made by respondent – four claims under the originating application – first claim in relation to adverse action for extension of an employment probationary period – second claim in relation to adverse action for dismissal from employment – third claim in relation to failure to pay wages in lieu of notice of dismissal from employment – fourth claim in relation to failure to pay wages for overtime and travel – first, second and third claim have no reasonable prospect of success – first, second and third claim dismissed – fourth claim is subject to a factual dispute – cannot be said that claim has no reasonable prospects of success – fourth claim adjourned for final hearing. Legislation: Federal Circuit Court of Australia Act 1999 (Cth) s 17A.
Federal Circuit Court Rules 2001 (Cth) rr 13.09, 13.10.
Federal Court of Australia Act 1976 (Cth) s 31A.
Cases cited: Adnunat Pty Ltd v ITW Constructions Systems Australia Pty Ltd [2009] FCA 449
Australian Workers’ Union v BHP Iron-Ore Pty Ltd (2001) 106 FCR 482
George Fletcher (Trustee) [2010] FCAFC 53
Gonzalez-Barbosa v Go To Court Franchising Pty Ltd & Anor [2017] FCCA 361
J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Limited [2014] FCA 581
Qualify Me Pty Ltd v Get Qualified Australia Pty Ltd [2016] FCA 192
Spencer v the Commonwealth [2010] HCA 28
Number of paragraphs: 71 Date of last submission/s: 23 December 2020 Date of hearing: 16 December 2020 Place: Melbourne The Applicant: Appearing in Person Counsel for the Respondent: Ms R Davern Solicitor for the Respondent: Victorian Government Solicitor’s Office ORDERS
SYG 2144 of 2019 BETWEEN: JESSICA SCARD
Applicant
AND: BAIRNSDALE REGIONAL HEALTH SERVICE
Respondent
ORDER MADE BY:
JUDGE MCNAB
DATE OF ORDER:
26 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The ‘Probation Period’ claim pleaded at paragraph 56 – 61 of the Amended Statement of Claim filed on 10 August 2020 (“ASOC”), the ‘Dismissal’ claim pleaded at paragraph 70 – 77 of the ASOC and the ‘Payment in Lieu of Notice of Dismissal’ claim pleaded at paragraph 78 – 82 of the ASOC be summarily dismissed pursuant to rule 13.10 of the Federal Circuit Court Rules 2001 (Cth).
2.Otherwise, the matter be listed in the Federal Circuit Court of Australia at Melbourne for Final Hearing on 9 June 2021 at 2:15pm, with an estimated hearing time of half a day, in relation to:
(a)the Applicant’s ‘Overtime and Travel’ claim as pleaded at paragraph 83 – 91 of the ASOC; and
(b)any application as to the costs of the Application in a Case filed on 5 November 2020.
REASONS FOR JUDGMENT
Judge McNab:
INTRODUCTION
By way of an Application in a Case filed on 5 November 2020 the Respondent seeks orders that the Applicant’s originating application filed on 20 August 2019 (and amended on 10 August 2020) be summarily dismissed. The application for summary dismissal is made pursuant to r13.10 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), on the basis the Applicant has no reasonable prospect of successfully prosecuting her claim.
The matter was heard on 16 December 2020 and the Respondent and Applicant made oral submissions at that hearing. At the request of the Court, the Respondent provided a written copy of their oral submissions during the hearing, so as to allow the self-represented Applicant to respond. Orders were made giving leave to the Applicant to file written submissions in response by 4.00pm on 14 January 2021. The Applicant filed submissions in reply on 23 December 2020 (“the 23 December 2020 submissions”), which are to be read in conjunction with submissions filed on 14 December 2020 (“the 14 December 2020 submissions”).
On the day of the hearing, additional orders were made for the question of summary dismissal to be further considered on the basis of the written submissions provided to the Court by the parties, and for the summary dismissal application to be determined on the papers.
BACKGROUND
The Applicant was employed by the Respondent in a 12-month, part-time position as a Speech Pathologist (Grade 1) from 7 January 2019 until 12 June 2019. The Applicant was employed in order to fill a parental leave vacancy.
The Applicant’s position description, which formed part of her employment agreement, included a clause that her employment was subject to a three-month probation period (see Applicant’s affidavit filed on 26 October 2020, annexure ‘JBS-4’) which was, on the basis of the start date of the Applicant’s employment, due to end on 7 April 2019.
At [51] – [53] of the Amended Statement of Claim filed on 10 August 2020 (“the ASOC”), the Applicant claims that in the course of her employment:
(1)on or about 10 January 2019, Ms Cherie Kelly, a Speech Pathology Team Leader for the Respondent who supervised the Applicant, advised the Applicant of her obligation to attend the East Gippsland Graduate Support Program (“EGGSP”) offsite work meetings. The Respondent disputes the Applicant’s claim that the EGGSP meetings were mandatory, claiming that they were voluntary and were to be considered professional development opportunities for graduates or staff generally;
(2)between January and April 2019, the Applicant attended four EGGSP meetings. The Respondent admits that the Applicant attended the first EGGSP meeting, but effectively denies the Applicant attended any further EGGSP meeting;
(3)on 26 February 2019, in a conversation with Ms Kelly, the Applicant requested time off in lieu in respect of her attendance at EGGSP, which Ms Kelly rejected; and
(4)on 26 February 2019, during the conversation with Ms Kelly, the Applicant made a complaint to Ms Kelly about her rejection of the Applicant’s request (“the EGGSP Complaint”).
On 7 April 2019, the Applicant’s probation period expired.
On 11 April 2019, the Applicant attended a monthly meeting known as the “Rewards and Recognition” meeting, where she voiced concerns to Mr Tom Felton, Physiotherapist and Chair of the meeting, that Ms Kelly was unsupportive in supervision meetings and enquired as to whether Ms Kelly’s supervision was appropriate for someone in her position as a Team Leader (“the Supervision Complaint”).
On 14 May 2019, during a meeting with Ms Kelly and Ms Jane O’Shannassy, Clinical Educator and Team Leader, the Respondent informed the Applicant that her probation was to be extended to 21 June 2019. The Applicant voiced some concerns, the nature of which are contested, to Ms O’Shannassy about her probation being extended.
On or around 5 June 2019, the Applicant was interviewed as a witness by Ms Pam Porter, General Manager of People & Culture, in an investigation into an anonymous and disparaging letter, which mentioned the Applicant by name, received by Ms Kelly on or about 31 May 2019. At the end of the interview, the Applicant voiced some further concerns, the nature of which is contested, to Ms Porter about Ms Kelly as a supervisor.
On 12 June 2019, the Applicant attended a meeting with Ms O’Shannassy (as a support person for the Applicant), Ms Porter and Ms Linda Daniel, Director of Community Wellbeing & Partnerships. The Applicant was effectively told by Ms Daniel that she had not met the requirements of her probation and/or the Respondent would not be ‘signing off’ on her probation.
The Applicant claims at [72] of the ASOC that after she was told that she had not met the requirements of her probation, she interrupted Ms Daniel, saying words to the effect of “no need, please read this”, took an undated resignation letter out of her pocket and handed it to Ms Daniel: see also Applicant’s affidavit filed on 26 October 2020 at [213.6.1]; annexure ‘JBS-10’. Ms Daniel then read the letter, remarked to Ms Porter “that we will need to redraft this letter” (or words to that effect) and then handwrote words on the front of the letter: see Applicant’s affidavit at [213.6.2] – [213.6.7].
The Applicant then claims at [213.7] of her affidavit that she asked Ms Daniel to ‘…resume her reasoning as to why my employment was being terminated and she said words to the effect…“well, I was about to before you interrupted me...”.
The Applicant claims at [72(d)] of the ASOC that Ms Daniel advised her that she was not going to pass probation because she had not met the standards of a Speech Pathologist, required too much supervision and the Applicant showed behaviours that were not in line with the Respondent’s core beliefs: see also Applicant’s affidavit at [213.7.1] – [213.7.4]. The Applicant then claims that she was asked to hand her work lanyard to Ms Porter, a letter of explanation would be sent to her and Ms O’Shannassy escorted her from the premises: see Applicant’s affidavit at [213.8] – [213.9.5], [223] – [223.7.9]. On that basis she claims that her employment was terminated without notice at the Respondent’s initiative.
The Respondent claims at [34] – [35] of the Defence filed on 8 September 2020 that once handed the letter by the Applicant, Ms Daniel read the letter and then asked whether the Applicant’s resignation was effective immediately to which the Applicant replied ‘yes’. The Respondent claims the Applicant then asked why she would not pass her probation, to which Ms Daniel then informed the Applicant of the reasons as set out above. On that basis, the Respondent denies terminating the Applicant’s employment, and instead claims that the Applicant resigned from her position.
The Originating Application was then filed on 20 August 2019.
The Applicant’s Claims
By way of the ASOC, the Applicant makes four primary claims against the Respondent, those being:
(1)adverse action, arising from the extension of the Applicant’s probationary period contrary to items 1(b) and/or 1(c) of s342(1) of the Fair Work 2009 (Cth) (“the FW Act”) (“the Probationary Period Claim”): see [56] to [61] of the ASOC;
(2)adverse action, arising from the dismissal of the Applicant, contrary to item 1(a) of s342(1) of the FW Act (“the Dismissal Claim”): see [70] to [73] of the ASOC;
(3)failure to pay the Applicant four weeks’ pay in lieu of notice of dismissal from her employment, in accordance with clause 24 of the Allied Health Professionals (Victorian Public Health Sector) Single Interest Enterprise Agreement 2016-2020 (“the Enterprise Agreement”) (“the Notice Claim”): see [78] – [82] of the ASOC; and
(4)failure to pay wages in respect of the Applicant’s participation in off-site, ‘after hours’ work meetings that were convened under the East Gippsland Graduate Support Program (“the EGGSP”), in accordance with various clauses of the Enterprise Agreement (“the EGGSP Claim”): see [83] to [91] of the ASOC.
Further, the Applicant seeks the following orders:
(1)a declaration that the Respondent contravened s340 and s50 of the FW Act;
(2)pecuniary penalties be imposed against the Respondent pursuant to s546 of the FW Act for those contraventions; and
(3)pursuant to s546(3) of the FW Act that those penalties be paid to the Applicant.
Summary of Material
Over the course of these proceedings, the Applicant has filed a voluminous amount of material, including 22 documents comprising of approximately 1010 pages. This includes 4 interlocutory applications and 10 affidavits.
The Respondent has filed 12 documents, which comprises of approximately 251 pages. This includes 2 interlocutory applications and 4 affidavits.
PRINCIPLES FOR SUMMARY DISMISSAL
Subsection 17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) (“the Federal Circuit Court Act”) provides as follows:
(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first the party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
Pursuant to s17A(3) of the Act, for the purposes of determining whether the Court should be satisfied that the Applicant has no reasonable prospect of successfully prosecuting the proceeding, the proceeding need not be “hopeless” or “bound to fail”.
This power of the Court to summarily dismiss an application is reflected in r13.10 of the Rules, on which the Respondent relies in this matter. Rule 13.10 is as follows:
The Court may order that a proceeding by stayed, or dismissed generally or in relation to claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
For completeness, the Respondent filed the requisite application for summary dismissal, in accordance with r13.09 of the Rules.
In Gonzalez-Barbosa v Go To Court Franchising Pty Ltd & Anor [2017] FCCA 361, Judge Kelly conducted a helpful survey of relevant authorities (including the leading authority Spencer v the Commonwealth [2010] HCA 28 (“Spencer”)) in relation to the proper approach to be taken when considering an application for summary judgment.
His Honour referred to Adnunat Pty Ltd v ITW Constructions Systems Australia Pty Ltd [2009] FCA 449 where Sundberg J summarised the approach taken by the Full Court of the Federal Court to s31A of the Federal Court of Australia Act 1976 (Cth) (which is the analogue of the s17A(2) of the Federal Circuit Court of Australia Act 1999.)
At [37] of that judgment, Sundberg J set out the following principles extracted from the Full Court of the Federal Court decision of Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; (2008) 167 FCR 372:
In applying s 31A, the court does not conduct fact finding but must assess the strength of the allegations made by reference to the pleadings, affidavits and any other evidence adduced, in order to determine whether the claim is sufficiently strong to warrant a trial.
Ultimately, the court must consider whether there are any real, as opposed to fanciful, issues of fact or law that require proper determination at a trial.
In assessing whether there are reasonable prospects of success, the court should draw all reasonable inferences (but only reasonable inferences) in favour of the non-moving party.
Where the evidence on a summary judgment application is of an ambivalent character, there will be a real issue of fact and therefore reasonable prospects of success for the purposes of s 31A.
The moving party bears the onus of persuading the court that its opponent has no reasonable prospects of success. However, where the moving party establishes a prima facie case for summary judgment, the opposing party must be able to point to “specific factual or evidentiary disputes that make a trial necessary”.
As s 31A requires in effect a prediction as to the outcome of a claim, the court should be more reluctant to summarily dismiss a claim where real questions of fact and credit arise. In those cases, the court will not have all material evidence before it until trial, the credit of important witnesses will not have been tested and it will as a consequence be very difficult if not impossible to fairly assess the prospects of the claim.
(Citations omitted)
Precisely how a claim is assessed will depend on the nature of the cause of action, as well as the identity of the parties, the pleaded facts and the evidence adduced.
For the purposes of an application for summary judgment it is permissible to look beyond the pleadings and consider affidavits and other evidence: see George Fletcher (Trustee) [2010] FCAFC 53 [74]-[76] (Ryan and Logan JJ); J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Limited [2014] FCA 581 at [8] (Pagone J); Qualify Me Pty Ltd v Get Qualified Australia Pty Ltd [2016] FCA 192 at [26] (Markovic J).
Judge Kelly referred to a series of propositions enunciated in Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158 (Perram, Jagot and Beach JJ), including the following at [46] – [48]:
[46] First, a proceeding or claim need not be “hopeless” or “bound to fail” for it to have no reasonable prospect of success (s 31A(3));
[47] Second, s 31A(2) may justify summary dismissal where, inter alia, there is unanswerable or unanswered evidence of a fact fatal to the pleaded case or any permissible modification (Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [22]);.
[48] Third, the exercise of power under s 31A(2) should be used with caution, particularly where complex questions of fact or law are involved…: see Upaid Systems Ltd v Telstra CorporationLimited [2016] FCAFC 158.
In Spencer, the High Court considered the nature of the power conferred by s31A Federal Court of Australia Act 1976 (Cth), which is in identical terms to that contained in s17A Federal Circuit Court Act. A plurality of the High Court (French CJ and Gummow J) stated at [25] that:
Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue.
THE RESPONDENT’S SUBMISSIONS
The Respondent submits that all four claims contained in the Applicant’s ASOC have no reasonable prospect of success, for the following reasons:
(1)in respect of the Probationary Period Claim, even if the extension of the probationary period amounts to adverse action as defined in items 1(b) and/or 1(c) of s342(1) of the FW Act, it is not alleged in the ASOC that such adverse action was taken because the Applicant exercised a workplace right, which is the relevant prohibition in s340 of the FW Act: see Respondent submissions filed on 16 December 2020 at [9(a)]. The Respondent submits at [13] – [15] that the Applicant’s ASOC puts it that the Applicant’s complaint about the extension of her probation period was made at the same time or after the Applicant was informed of the decision to extend the probation period during a meeting on 14 May 2019. As such, the Respondent submits that “there is no basis on which it could be held that the alleged adverse action (the extension of the probation period) could be “because of” the exercise of any workplace right.” On that basis, the Respondent contends at [9(a)] that “[t]he taking of adverse action per se, does not amount to a breach of the FW Act and gives rise to no cause of action”;
(2)in respect of the Dismissal Claim, on the basis of the Applicant’s own evidence that her employment came to an end due to her tendering her resignation; a resignation that she had planned to tender for over a month (approximately from the end of May) before so doing during the meeting on 12 June 2019, and was effected by providing a letter of resignation drafted by a practising solicitor (the Applicant’s brother) to the Respondent during the meeting: see Respondent’s submissions at [9(b)], [18] – [26];
(3)for the same reason that the Dismissal Claim must fail, the Notice Claim must fail. No entitlement to pay in lieu of notice arises under the Enterprise Agreement where the Applicant resigned from employment: see Respondent’s submissions at [9(c)], [27]; and
(4)the Applicant has provided no evidence of any requirement, contractual or otherwise, for her attendance at the EGGSP. Her attendance at a voluntary program was, on the Applicant’s own evidence, for graduates, not temporary employees. Further, the Applicant’s own evidence makes clear that she was “…aware on 28 February 2019 that the EGGSP was a professional development program, not compulsory, and not paid”: see Respondent’s submissions at [33]. Notwithstanding the Applicant’s awareness of the nature of the EGGSP, given the “complete untenability of the Probationary Period Claim, the Dismissal Claim and the Notice Claim, the proceeding ought not to be permitted to continue given the de Minimis nature of the EGGSP Claim which includes totals loss and damage of $1513.74”: see Respondent’s submissions at [9(d)].
THE APPLICANT’S SUBMISSIONS
Probationary Period Claim
The Applicant submits at [3] – [8] of the 14 December 2020 submissions that her probationary period ended on 7 April 2019, as it was limited to a 3 month term, by virtue of her employment agreement. The Applicant submits at [4] that the agreement did not make provision for the Respondent to purport to extend her probation period, and therefore they were not entitled to extend her probation and, further, they did not undertake a mandatory review assessment that should have occurred prior to the probation period ending on 7 April 2019. On that basis, the Applicant submits that, due to the extension of the probationary period, the Respondent “prejudicially altered the Applicant’s employment status in so doing”: see Australian Workers’ Union v BHP Iron-Ore Pty Ltd (2001) 106 FCR 482 at [54]. The Applicant submits that she was therefore worse off, as a result of the Respondent’s actions, and complained accordingly upon being told of the extension.
In reply to the Respondent’s submissions provided during the hearing, the Applicant initially submits at [13] of the 23 December 2020 submissions that:
In relation to the probationary period adverse action claim, Counsel states “it is not even alleged in the ASOC that such adverse action was taken because the Applicant exercised a workplace right which is the relevant prohibition in s 340 of the FW Act.” In this respect, the Applicant notes clauses 75 and 76 of her ASOC in which causal links are described and the breach is claimed pursuant to s 340(1) of the FW Act, respectively. In this context and given the extensive evidence in the Applicant’s affidavit (Refer 33-45.7) the Applicant submits that her claim relating to adverse action arising from extension of her probationary period is very arguable and not almost incontestably bad.
The Applicant then effectively submits at [19] – [20] that the Respondent’s assertions in relation to the Probationary Period Claim are not supported by evidence and do not respond to the Applicant’s claim and/or “…the causal link described in the ASOC”.
Dismissal Claim
The Applicant submits at [11] of the 14 December 2020 submissions that the evidence she has provided across the breadth of the material she has filed “proves that the Respondent’s actions ‘directly and consequentially’ resulted in the termination of employment, and had the employer not taken those actions, the Applicant would have remained employed on or after 12 June 2019”. The Applicant provides a range of evidence in support of this claim, as set out at [12] of the 14 December 2020 submissions. That evidence, amongst other things, includes:
(1)a script which was prepared by the Respondent for the purpose of a dismissal meeting: see Andrew Scard’s affidavit filed on 20 October 2020, annexure AMS-41;
(2)a letter of dismissal was prepared and taken to the dismissal meeting by the decision maker: see annexure AMS-38;
(3)approval to dismiss the Applicant was obtained from the Chief Executive Officer: see annexure AMS-86;
(4)a recommendation to dismiss the Applicant was formulated and documented: see AMS-49; and
(5)the Applicant had not decided to resign at any time immediately prior to the dismissal meeting on 12 June 2019, despite having prepared and carrying an undated resignation letter: see [203] – [209.1] of the ASOC.
In the alternative, the Applicant submits at [13] of the 14 December 2020 submissions that the evidence “proves that she was forced to resign from her employment because the employer took action with the intent, or which had the probable result, of bringing the relationship to an end”: see also [115] – [144] of the ASOC. The Applicant effectively provides two constructions of this claim, those being:
(1)the Applicant exercised a right, being her workplace right to make complaints in relation to her employment or conditions in the workplace, and that there is evidence that a causal link exists between her complaints and the decision to terminate her employment: see 14 December 2020 submissions at [14] – [16.5.6]; or
(2)in the alternative, her complaints “operated to impermissibly crystallise” in the minds of those investigating the anonymous threatening letter received by Ms Kelly, that “the Applicant was the only person with a motive to create or disseminate such a letter.” On the basis of this mindset, the decision-maker, on behalf of the Respondent, decided to terminate the Applicant’s employment: see 14 December 2020 submissions at [17].
The Applicant further submits at [14] of the 23 December 2020 submissions that:
Had the Respondent not planned the dismissal of the Applicant and taken the Applicant to a meeting on the afternoon of 12 June 2019, for the purpose of dismissing her, the Applicant would have remained at her desk in the ward writing up patient notes; in the employment relationship. The facts set out in the Applicant’s affidavit correlate persuasively with the meaning of ‘dismissal at the initiative of the employer’ as explained in Mohazab v Dick Smith Electronics Pty Ltd (No 2) at 205.
The Applicant also submits at [15] that the Respondent’s submission that the Applicant had planned to tender a resignation for over a month is not supported by evidence.
Notice Claim
The Applicant effectively submits at [21] – [27] of the 14 December 2020 submissions that:
(1)she was entitled to four weeks of pay in the sum of $4,204.46 in lieu of notice pursuant to clause 24 of her employment agreement following summary dismissal;
(2)her employment was terminated by the Respondent during the meeting held on 12 June 2019;
(3)despite payment initially having been approved by the CEO of the Respondent, the Applicant was not paid those monies, as the CEO subsequently revoked the decision, on the basis of serious misconduct, due to the anonymous threatening letter directed to Ms Kelly; and
(4)the Applicant’s evidence demonstrates that she was not dismissed for serious misconduct and the decision to revoke the payment was “…to ensure that the Respondent did not do some act constituting an admissions that the Applicant was dismissed.”
EGGSP Claim
The Applicant submits at [34] – [35] of the 14 December 2020 submissions that her evidence proves that no evidentiary material has been filed by the Respondent that proves that attendance at the EGGSP events was voluntary, and instead that the Applicant’s evidence shows that the “EGGSP was not voluntary, but was rather work, off site, in the nature of training”: see Andrew Scard’s affidavit, annexure AMS-12 and AMS-13. The Applicant claims at [28] that she was not paid wages in respect of her attendance at the EGGSP.
The Applicant submits at [30] of the 14 December 2020 submissions that “…other graduates received time off in lieu in respect of their attendance at EGGSP on some occasions, and on other occasions, they did not”: see also Andrew Scard’s affidavit filed on 26 October 2020, annexure AMS-13.
On that basis, the Applicant claims that the EGGSP meetings were not voluntary and that she was entitled to be paid time off in lieu for attendance at four EGGSP meetings, which included for her a significant time commitment outside of standard work hours.
CONSIDERATION
The Probation Period Claim
The Applicant has no reasonable prospects of succeeding in this claim. The Applicant’s claim is that she made complaints about the extension of the probationary period at or after the time that she was advised that the period would be extended. On that basis there is no reasonable prospect of a claim succeeding that adverse action, being the extension of the probationary period, occurred because she made complaints about the extension of the probation period.
The pleadings at [57] – [58] of the ASOC make clear that it is alleged that on 14 May 2019 at a meeting, an agent for Respondent advised the Applicant that the decision was made to extend her probation period to 21 June 2019. It is then said that in that same meeting on 14 May 2019 the Applicant complained that the decision to extend her probation period was not fair, that she was disappointed and upset about the decision, and enquired about what she had to do to pass probation.
On the basis of that pleading it is plain that the complaint relied on to found the claim was made after the decision to extend probation was communicated to the Applicant there is no reasonable basis for the finding that the decision to extend the Applicant’s probation was made because of the complaint.
Dismissal Claim
At [67] – [69] of the ASOC, the Applicant pleads that she had exercised workplace right to make inquiries or complaints in relation to her employment. At [70] – [73] the Applicant pleads that:
70. On 12 June 2019, the Applicant was asked to attend a meeting immediately by Jane O’Shannassy (‘Ms O’Shannassy’), employee of the Respondent.
71. The Applicant attended the meeting with Ms O’Shannassy, Ms Daniel, and Ms Porter.
72. At the meeting of 12 June 2019 –
(a)Ms Daniel advised the Applicant that Ms O’Shannassy was allocated as the Applicant’s support person;
(b)Ms Daniel advised the Applicant that the Respondent will not be “signing off” her probation;
(c)Upon being advised that she will be passing probation, the Applicant handed Ms Daniel an undated draft resignation letter, which the Applicant was carrying with her;
(d)Ms Daniel verbally advised the Applicant was not going to pass probation because she had not lived up to the Respondent’s standards as speech pathologist and needed too much supervision, and that the Applicant showed behaviours that were not in line with the Respondent’s “core beliefs”.
73. By reason of paragraphs [72], the Respondent took adverse action against the Applicant within the meaning of s.342(1) of the FW Act.
PARTICULARS
a) The Applicant’s employment was terminated without notice at the Respondent’s initiative on 11 June 2019; or
b) In the alternative, the Applicant was forced to resign because of the Respondent’s conduct or course of conduct.
That pleading makes clear that the termination of employment came about due to resignation by the Applicant. The Applicant had a letter of resignation prepared on her behalf by her brother, who is a legal practitioner and has filed an affidavit in this proceeding: see affidavit of Benjamin Scard filed on 4 September 2020. The Applicant contends that she was forced to resign as a result of the conduct or course of conduct engaged in by the employer. She cites Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 195 as authority for the proposition that an employee’s employment may be terminated where a person has resigned in circumstances where they were forced to resign because of a conduct or a course of conduct engaged in by the employer.
The pleadings relied upon by the Applicant were prepared by Counsel. The Applicant’s pleading does not allege that the Applicant was forced to resign by reason of the conduct of the Respondent.
The Applicant has no reasonable prospects of succeeding in a claim on the basis that the employer took adverse action in dismissing her from employment in circumstances where the Applicant clearly resigned, and intended to resign, given the preparation of the resignation letter. That there is evidence that the Applicant intended to terminate the employment but for the resignation does not change the fact of the Applicant’s resignation.
In relation to a claim that the Applicant was forced to resign by a course of conduct engaged in the by the employment, the Applicant pleads at [74] of the ASOC that the Respondent took adverse action, being the termination of employment, because the Applicant exercised or proposed to exercise her workplace rights as alleged at [67] – [69] of the ASOC.
The Applicant pleads at [69] that:
69. The Applicant exercised or proposed to exercise a workplace right within the meaning of s 340 of the FW Act by:
(a) Requesting time in lieu for her attendance at EGGSP;
(b) Making the EGGSP Complaint;
(c) Asserting and inquiring about her entitlement to pass probation;
(d) Making the Probation Complaints;
(e) Making the April and June Supervision Complaints; and
(f) Participating in the Investigation.
The participation in the investigation into serious misconduct, bullying and harassment is not the exercise of a workplace right in the sense that it is neither a complaint or inquiry as set out in s341(1)(c) of the FW Act.
In any case, the investigation referred to by the Applicant is defined at [62] of the pleadings as follows:
62. On or around 5 June 2019, the Applicant was interviewed as a witness in an investigation into an anonymous letter received by Ms Kelly on or about 31 May 2019 (‘Investigation’).
PARTICULARS
(a) The Investigation was conducted by Ms Porter, General Manager of People and Culture; and
(b) Six other witnesses, including Ms Kelly, was interviewed as part of the investigation.
The Applicant’s evidence at [203] – [203.11] of her affidavit filed on 26 October 2020 is:
203. Near the end of May, 2019 after discussions with my parents and my brother, I decided that I would resign, but I had not decided when this would occur because I needed alternative employment and
203.1. I started to look for new jobs and
203.2. approached members of staff, Fiona Baker and Suzanne McArthur asking them if I could rely upon them for a reference to be named in job applications and
203.3. I applied for a number of hospital positions in NSW public health, including Tamworth, Taree and Central Coast (Refer JBS-12, JBS-13 & JBS14) and
203.4. I told my close friends at BRHS and my potential referees from BRHS that I was seeking alternative employment and
203.5. After Linda Daniel's announcement on 4 June 2019 and my interview with Pam Porter on the following day I became even more certain that I did not want to remain at BRHS and
203.6. During the work week commencing 4 June 2019 I maintained regular contact with my brother by phone and text. I have annexed hereto a text exchange covering the period 4 June 2019 to 10 June 2019. It is marked JBS-29 and
203.7. I drafted a resignation letter with the assistance of my brother and printed it (Refer JBS-10) and
203.8. From the morning of 11 June, 2019, I deliberately carried the undated unsigned draft letter on my person as a talisman, because it gave me a sense of considerable comfort, knowing that my unhappiness was hopefully close to finishing and
203.9. During the morning of 10 June 2019 my brother texted me with the question "when do you need it by" and I replied using the words "No rush. Ideally Id like to have it in my pocket tomorrow" and
203.10. I had the draft resignation letter in my pocket on 11 June 2019 and on 12 June 2019 and
203.11. As at 12 June 2019 I had not received any replies to my job applications.
Mr Benjamin Scard, the Applicant’s brother, filed an affidavit on 4 September 2020, which provides evidence at [26], [29] – [34] that confirms the Applicant was planning to resign and was preparing a resignation letter.
Given that the Applicant has given evidence that she had decided to resign in late May 2019, prior to the investigation taking place on 5 June 2019, this claim has no reasonable prospects of success. Otherwise, there is no allegation that the making of any the other complaints led to her being forced to resign.
For these reasons, the Dismissal Claim has no reasonable prospects of success.
Notice Claim
The Applicant pleads the Enterprise Agreement as a source of her entitlement to notice: see ASOC at [48]. The Applicant is not entitled to notice upon resignation, pursuant to the provisions of the Enterprise Agreement. There is no evidence that the Applicant resigned giving notice.
As set out above, I have found that, on the basis of the Applicant’s pleadings and the evidence before the Court, the Applicant resigned from her employment without providing notice of resignation prior to her resignation. Given that the Applicant pleaded that she resigned from her employment the Applicant has no entitlement to a payment in lieu of notice.
The EGGSP Claim
The Applicant claims that she was required to, and did, attend further education meetings on four occasions between January 2019 and April 2019. At [49] of the ASOC she pleads that the meetings were variously located at Orbost, Bairnsdale and Marlow all of which involved three to six hours of time commitment for her, including travel to and from the meetings. The Applicant makes a claim for $1513.74 for overtime travel allowance on the unpaid meal allowance: see ASOC at [88].
The Applicant pleads at [90] that there was breach of the relevant terms of the Enterprise Agreement and s50 of the FW Act. She also seeks penalties and compensation pursuant to the relevant provisions of the FW Act. At [47] of the Applicant’s affidavit filed on 26 October 2020, the Applicant gives evidence that on or about 10 January 2019, Ms Kelly told her that she was required to attend EGGSP meetings and said, amongst other things, that “it’s a training program for new graduates”. She gives evidence at [49] that she attended the EGGSP meetings with other employees and that, following the conclusion of three of the four meetings, she had dinner with other employees.
The Respondent relied upon an affidavit of Ms Kelly filed on 14 December 2020. That affidavit sets out the details of the EGGSP, describing it at [9] – [11] as follows:
9. East Gippsland Inter-professional Graduate Support Program (EGGS:) is an optional professional development program designed for all new graduates of Allied Health, but open to all new Allied Health professionals across the East Gippsland Area, including the Respondents employees.
10. Allied Health professionals include Physiotherapists, Dietitians, Occupational Therapists and Speech Pathologists, and Social Workers.
11. The 2019 program consisted of nine one hour sessions. Sessions were scheduled every three weeks.
Ms Kelly gives further evidence at [12] that:
12. The program was designed to support new allied health graduates to transition from student to professional, by providing them with an opportunity to meet new people and support and learning additional ‘soft skills’ such as managing in rural practice, building self-care skills, developing understanding of core professional attributes and knowledge…
Ms Kelly gives evidence at [13] that attendance at the sessions was optional and staff were not paid to attend and did not receive any allowance in respect of their attendance. She states when the Respondent staff voluntarily elected to attend sessions their attendance at those sessions were not recorded in the Respondent’s time and attendance electronic record, which was linked to the Respondent’s payroll system.
At [14] Ms Kelly gave evidence that on around 10 January 2019 she introduced the Applicant to “members of the Respondents Allied Health Team including the Allied Health Clinical Educator who is responsible for coordinating the EGGSP”. At [15] – [16], Ms Kelly states:
I explained to Ms Scard that the EGGSP was for the new allied health graduates but that if she wished to attend the EGGSP sessions she was welcome to do so. I made the suggestion because even though Ms Scard was not employed in the designated graduate allied health role, I understood that this was her first position as a Speech Pathologist, and that she had relocated to the area. As such, I thought you might benefit from the opportunity to develop social networks. When I introduced Ms Scard to the Allied Health Clinical Educator, I told her that the Allied Health Clinical Educator would explain the program in more detail, if Ms Scala was interested.
16. I did not, on around 10 January 2019, or at any time, direct or require Ms Scard to attend the EGGSP sessions. Ms Scard’s attendance at any of these sessions was always optional.
There is a factual dispute about whether Ms Kelly told the Applicant that she was required to attend the EGGSP meetings. On that basis it cannot be said that the EGGSP claim has no reasonable prospects of success.
I note that the Respondent submits that the Applicant’s claim for compensation are De minimis (about small things). It is a claim for an unpaid entitlement and it is not uncommon for such claims to be of a modest quantum, but they are nonetheless important entitlements which employees are entitled to pursue. The Applicant also seeks the imposition of a pecuniary penalty arising from the EGGSP Claim.
In order to avoid the unnecessary outlay of time and costs, I propose convening a hearing to deal with that issue. The evidence has been filed on behalf of each the parties on the discrete issue of whether the Applicant was told that she was required to attend the EGGSP meeting. Ms Kelly should be available for cross-examination. It is anticipated that the hearing will conclude on that day and the parties should be in a position to make submissions, including submissions on costs.
CONCLUSION
For these reasons I find the Applicant does not have a reasonable prospect of succeeding in relation to the Probationary Period Claim, the Dismissal Claim and the Notice Claim, and her application in relation to those claims must be dismissed pursuant to r13.10 of the Rules.
I am of the view that the Applicant’s EGGSP Claim should not be dismissed pursuant to r13.10 of the Rules, as there are factual issues in dispute. On that basis, I will make orders that the issue of the Applicant’s EGGSP Claim be listed for Final Hearing on that discrete issue, with Ms Kelly to be made available to give evidence. It is anticipated that the hearing will conclude on that day and parties should be in a position to make submissions, including submissions on costs. The hearing will be conducted via Microsoft Teams so as to avoid inconvenience to the parties.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab. Associate:
Dated: 26 February 2021
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