St John v St. Vincent's Hospital
[2022] FedCFamC2G 669
•17 August 2022
Federal Circuit and Family Court of Australia
(DIVISION 2)
St John v St. Vincent’s Hospital [2022] FedCFamC2G 669
File number(s): MLG 1931 of 2021 Judgment of: JUDGE MANSINI Date of judgment: 17 August 2022 Catchwords: INDUSTRIAL LAW – FAIR WORK – cessation of employment in the context of the global COVID-19 pandemic – whether role no longer required to be performed by anyone due to alleged fundamental changes to it – whether contract repudiated by directing performance of another role – where repudiation affirmed by subsequent conduct – application dismissed Legislation: Fair Work Act 2009 (Cth) ss.12, 42, 50, 51, 365, 539, 542, 543, 545, 548
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 rr.1.06, 7.01, 16.5(3)
Federal Court Rules 2011 (Cth)
Nurses and Midwives (Victorian Public Health Sector) (Single Interest Employers) Enterprise Agreement 2016-2020 cl.12.7
Cases cited: CMP Manufacturing Limited v Barbieri (2018) 275 IR 465
Commonwealth Bank of Australia v Barker [2014] HCA 32
Famestock Pty Ltd v The Body Corporate for No 9 Port Douglas Road Community Title Scheme 24368 [2013] QCA 354
Finance Sector Union of Australia v Commonwealth Bank of Australia [2001] FCA 1613
Heymans v Darwins Ltd [1942] AC 356
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115
R v Industrial Commission of South Australia; ex parte Adelaide Milk Cooperative Ltd (1977) 44 SAIR 1202
Sabapathy v Jetstar Airways [2021] FCAFC 25
Shevill v Builders Licensing Board (1982) 149 CLR 602
Division: Division 2 General Federal Law Number of paragraphs: 158 Date of last submission/s: 9 May 2022 Date of hearing: 9 & 10 May 2022 Place: Melbourne Counsel for the Applicant: Mr J Hooper Solicitor for the Applicant: McDonald Murholme Solicitors Counsel for the Respondent: Mr N Harrington Solicitor for the Respondent: K & L Gates ORDERS
MLG 1931 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CAROL ST JOHN
Applicant
AND: ST. VINCENT'S HOSPITAL
Respondent
order made by:
JUDGE MANSINI
DATE OF ORDER:
16 August 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
2.There be no orders as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
IN SUMMARY [1] CONTEXT [6] Procedural context [6] Factual context [13] PROCEEDINGS BEFORE THIS COURT [77] THE REDUNDANCY CLAIM [80] The pleadings [80] The respective contentions [86] The relevant principles [99] Consideration [101] Was the Applicant entitled to redundancy pay? [123] THE REPUDIATION CLAIM [125] The pleadings [125] The respective contentions [132] The relevant principles [140] Consideration [143] CONCLUSION [158] REASONS FOR JUDGMENT
Judge Mansini
IN SUMMARY
Ms Carol St John (Applicant) was employed by St Vincent’s Hospital Melbourne (Hospital), most recently for some 7 years in a nurse workforce coordination role, until it came to an end by letter of her solicitor citing acceptance of repudiation.
Events relevant to the cessation of employment took place in the context of the global COVID-19 pandemic (pandemic). It is not contentious that the pandemic had a significant impact on the work environment of the Hospital. In the midst of the pandemic, the Hospital sought to move the Applicant to another role. The Applicant then took a period of some 7 months’ personal leave.
The Applicant primarily asked the Court to find that her role was redundant as a result of fundamental changes to it, meaning it was no longer required to be done by anyone, and the Hospital was in breach of the applicable enterprise agreement when it did not pay redundancy pay. Alternatively, that the Hospital was in breach of contract by its repudiation and failure to pay her notice upon cessation. She claimed compensation of $57,692.30, damages, interest and penalty.
The Hospital denied any breach. It contended that the Applicant was not performing in her role to the standard required but – in the midst of the pandemic - was to be temporarily transferred. It maintained that the role was (and is) still required to be performed by someone and therefore was not redundant. Further, it said that any changes to the role were consistent with an implied contractual term enlivened by the pandemic and the employment came to an end only when the Applicant purported to accept a repudiation which she had already affirmed.
I have determined that there is no basis to make orders as sought and to dismiss the application. The reasons for judgment follow.
CONTEXT
Procedural context
The originating application and statement of claim were filed on 5 August 2021.
A response and defence were filed by the Hospital on 8 September 2021.
On 7 October 2021, orders were made by consent which included referral to mediation by a Registrar of the Court. As the matter did not resolve, the matter was fixed for trial. Orders for exchange of material in advance of the trial were made on 14 December 2021.
The matter proceeded to trial on 9 and 10 May 2022. Both parties were represented.
At the final hearing, the Applicant relied on:
(a)subject to certain objections ruled on at the hearing, her first affidavit of 28 January 2022 (marked Exhibit A1); and
(b)subject to certain objections ruled on at the hearing, her second affidavit of 18 March 2022 (marked Exhibit A2).
She also gave oral evidence before the Court on 9 May 2022.
The Hospital relied on:
(a)an email of 16 July 2020, handed to the Applicant in cross-examination (marked Exhibit R1);
(b)subject to certain objections ruled on at the hearing, an affidavit of a Mr Arnold Garcia (its former Senior IR Manager, People Services) dated 4 March 2022 (marked Exhibit R2); and
(c)subject to one amendment and certain objections ruled on at the hearing, an affidavit of a Ms Sally Kelly (its Director of Nursing Workforce Strategy and Planning) dated 4 March 2022 (marked Exhibit R3).
These witnesses also gave oral evidence before the Court on 9 and 10 May 2022.
Outlines of closing submissions were handed up and addressed by counsel for each party prior to the conclusion of the hearing.
Factual context
Below is a summary of the evidence before the Court as relevant to the Applicant’s claims. Unless otherwise indicated, the following is not contentious and constitutes factual findings I have made.
Terms and conditions of employment
The Applicant is a registered nurse with various nursing qualifications, nursing and nursing administration experience.[1]
[1] Affidavit of Carol St John dated 28/1/22 (Affidavit of CSJ No 1) at [4].
Since 2005, the Applicant had worked continuously for the Hospital in various roles.[2]
[2] Affidavit of CSJ No 1at [5]-[7].
In 2013, the Applicant commenced employment with the Hospital as Nurse Workforce Unit Coordinator (NWU Coordinator). That role was head of the Nurse Workforce Unit and reported to the Director of Nursing Workforce Strategy and Planning. The contract of employment provided:
[…]
Your contract details are as follows:
Position title: Nurse Workforce Unit Coordinator
Campus: St Vincent’s Hospital Melbourne
Employment status: Full Time Permanent
Award/EBA: Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2012 – 2016 or its successor
Classification level: YU11
Pay Rate:$36.64 per hour
Contracted hours: 38.00 hours per week
ADO Entitlement: Yes
Commencement Date: 29 April 2013
End Date:------------------
Please ensure that you sign and return this contract to Human Resources as soon as possible.
[…]
(2013 Contract)[3]
[3] Admitted - Respondent’s Amended Defence, dated 10 May 2022 (Amended Defence) at [6]-[7]; Affidavit of CSJ No 1 at [8]; Affidavit of Sally Kelly dated 4 March 2022 (Affidavit of SK) at SK-3.
On 9 May 2013, the Applicant signed the 2013 Contract in acceptance of “the terms and conditions of employment applicable to the position” and acknowledgement of her agreement “to comply with all St Vincent’s Health policies and procedures”.[4]
[4] Affidavit of CSJ No 1 at [8], Affidavit of SK at SK-3.
A position description marked “October 2012” was in evidence. The Applicant ultimately accepted that the October 2012 version was the version given to her with the 2013 Contract (Position Description).[5]
[5] Affidavit of SK at SK-1; Carol St John on Transcript of Hearing Day 1 at page 58.
On 23 December 2016, the successor to the enterprise agreement referenced in the 2013 Contract, the Nurses and Midwives (Victorian Public Health Sector) (Single Interest Employers) Enterprise Agreement 2016-2020 (2016 Enterprise Agreement) commenced operation. The Applicant was employed in a role contained in, and entitled to the benefit of, the 2016 Enterprise Agreement.[6] Relevantly, the 2016 Enterprise Agreement provided, at clause 12.7:
[6] Admitted - Amended Defence at [9].
Employment terminates due to redundancy
The Victorian Government’s policy with respect to public sector redundancy and the entitlements upon termination of employment as a result of redundancy are set out in the Public Sector Workplace Relations Policies 2015. The policy as at the time this Agreement comes into operation applies to Employees but does not form part of this Agreement.
and the referenced Public Sector Industrial Relations Policies 2015 (Policy) provided for a departure package, said to amount to the value of 25-weeks’ pay for an employee made involuntarily redundant, of the Applicant’s age and with the Applicant’s length of service.[7]
[7] Affidavit of CSJ No 1 at CSJ-2.
On 8 November 2019, the Applicant was placed on secondment in the position of Project Officer for Special Projects Nursing Workforce.[8]
[8] Admitted –Amended Defence at [4].
On 20 January 2020, the Applicant returned to the role of NWU Coordinator.[9] The 2013 Contract and related Position Description were not re-issued or varied.[10]
[9] Admitted –Amended Defence at [4]; Affidavit of CSJ No 1 at [7(e)].
[10] Sally Kelly on Transcript of Hearing Day 2 at page 108.
The basic job purpose as described in the NWU Coordinator Position Description was:
The Nurse Coordinator in consultation with the Nurse Workforce Manager is responsible for the recruitment and selection of permanent pool and casual staff across St. Vincent’s, including St. George’s, Caritas, Mental Health and Residential Services. In addition this role is responsible for managing the process for casual staff competencies and assists in performance management of staff as necessary. This role is responsible for the day to day operational management of the Nurse Workforce Unit, and management of the staff rosters. The Nursing Coordinator promotes excellence in provision of an allocation service, leadership, teaching, team building, change management, financial and resource management.[11]
[11] Affidavit of SK at SK-1.
The Position Description also included key responsibilities described in 6 responsibility areas: leadership, human resources management, financial resource and activity management, strategic relationships, teaching and research, workplace health and safety.[12]
[12] Affidavit of SK at SK-1.
Further, the Position Description provided the Applicant was responsible for the following direct reports: Allocations Officers; Permanent Pool; and Casual Nursing Workforce.[13]
[13] Affidavit of SK at SK-1 at page 3.
According to the Position Description, the NWU Coordinator role reported to the Manager, Nurse Workforce Unit. In practice, from 20 April 2020 the Applicant reported to Ms Kelly (Director of Nursing Workforce Strategy and Planning).[14] At all relevant times, the Applicant had team members in the NWU directly reporting to her in her role, although that number increased over time.[15]
[14] Carol St John on Transcript of Hearing Day 1 at page 59; Sally Kelly on Transcript of Hearing Day 2 at page 108.
[15] See Affidavit of SK at SK-1; Affidavit of Carol St John dated 18 March 2022 (Affidavit of CSJ No 2) at [7].
The Applicant’s remuneration increased over time in accordance with the 2016 Enterprise Agreement. As at 25 February 2021, the Applicant’s remuneration was contended by the Hospital to be $101,010[16] and by the Applicant to be approximately $100,000 per annum (excluding superannuation).[17]
[16] Admitted –Amended Defence at [8]; Affidavit of Arnold Garcia dated 4 March 2022 (Affidavit of AG) at [26].
[17] Affidavit of CSJ No 1 at [9].
The role – pre pandemic times
The statement of claim, which in this respect was in the same terms as the Applicant’s written affidavit, identified the Applicant’s more specific responsibilities since her commencement in the role in 2013 as follows:
a)assisting with the recruitment and appointment of nurses;
b)liaising with external nurse agencies;
c)ensuring that all NWU nurses have all required credentials for employment and have completed the annual mandatory Hospital competencies;
d)providing performance feedback to and fostering the professional development of the Nurse Pool, Nurse Bank, Health Assistants, Medical Assistants and Allocation Officers;
e)leading daily NWU communication meetings;
f)liaising with the NWU Manager and Nurse Unit managers in reviewing the organisational nursing staff needs;
g)supporting Allocation Officers, the Nurse Pool, and the Nurse Bank;
h)managing all clinical and non-clinical incident reports;
i)ensuring that occupational health and safety standards are maintained; and
j)general administrative duties,
(collectively, the Primary Duties).[18]
[18] Applicant’s Statement of Claim, dated 5 August 2021 (Statement of Claim) at [11]; Affidavit of CSJ No 1 at [12].
The Hospital did not admit that pleading, instead relying on the responsibilities as prescribed in the Position Description. In cross-examination, the Applicant was taken to particular parts of the Position Description. Extracted below are the paragraphs (put to the Applicant individually)[19] which she agreed in evidence had been part of her role since 2013:
[19] Carol St John on Transcript of Day 1 at pages 58-64. Spaces in the extract indicate content in the Position Description that was not expressly put to the witness in cross-examination or with which she disagreed.
BASIC JOB PURPOSE
The Nurse Coordinator in consultation with the Nurse Workforce Manager is responsible for the recruitment and selection of permanent pool and casual staff across St. Vincent’s, including St. George’s, Caritas, Mental Health and Residential Services.
In addition, this role is responsible for managing the process for casual staff competencies and assists in performance management of staff as necessary.
The role is responsible for the day-to-day operational management of the nurse workforce unit and management of the staff rosters.
[…]
KEY REPSONSIBLITIES
RESPONSIBILITY AREA 1: Leadership
Support the Manager in managing and leading the allocations team to perform within the key objectives of the department and in line with the Hospital’s strategic direction. […]
Performance Indicators:
·Works with the Nurse Workforce Unit Manager to provide leadership and management to the Allocations Officers, […]
·Participate in the development and monitoring of service provision between the nursing departments and Nurse Workforce Unit
[…]
·Actively liaises with the Nurse Workforce Unit Manager and the Nurse Unit Managers (NUMs) in reviewing the organisations nursing staffing needs
·Supports and promotes excellence in the provision of an allocation service […]
·Supports the allocations team and assist them in making informed decisions and assumes an active role in advanced casual staff bookings
[…]
RESPONSBILITY AREA 2: Human Resources Management
Ensure that appropriately educated and experienced causal nursing workforce are appointed to ensure safe nursing levels at all times and to meet daily service requirements and budgetary targets.
Performance indicators:
[…]
·Facilitate appropriate orientation and core competency programs for new permanent pool and casual Bank staff
[…]
·Provide policy advice, day-to-day supervision and identify training needs for permanent pool and casual bank.
RESPONSIBILITY AREA 3: Financial Resource and Activity Management
[…]
·Monitors and reviews costs of staffing
[…]
·Processes agency invoices and reconciliation in a timely manner
[…]
Whilst agreeing with the above, the Applicant also gave evidence to clarify some of her responses as follows: from 2013 through to 2020 she was required to provide leadership to allocations officers and in respect to permanent (nurse) pool and (casual) bank staff; her responsibility to support the allocations team and assist them in making informed decisions and assuming an active role in advanced bookings also extended to the (permanent) nurse pool although the Position Description did not say this; the advanced booking responsibility meant trying to anticipate a problem that might arise and filling vacancies in advance where possible; induction or orientation of new staffers was the responsibility of one of her team (a development officer); she did not provide day-to-day supervision or was not sure what that meant but accepted she would identify training needs for permanent (nurse) pool and casual bank (staff) and if there were any deficiencies they would have feedback on their performance and development; that meeting budget targets and analysis of budget variances was not her core responsibility but, pre-pandemic, she had a role in it, in that this was something her manager would talk to her about each month when the results came out from finance and then Ms Kelly kept an eye on costs of staffing; invoices and reconciliations were electronically recorded and managed by the Applicant’s billing officer who would submit authorisations to the NWU Manager and when they were ready to the Applicant for approval.[20]
[20] Carol St John on Transcript of Hearing Day 1 at page 49, 55, 60-61, 65.
In relation to the Position Description at Responsibility Area 2: Human Resources Management, the Applicant did not agree that all of the following was part of her job from 2013 until July 2020 (as the question was put):
In consultation with the manager and NUMs recruit and select appropriate permanent pool and casual nursing staff to meet the needs of our patients.
In this regard, the Applicant’s evidence was:
No, that changed – I can’t exactly remember the year it changed, but it was decided that due to the workload that the nurse workforce shouldn’t…and resources they appointed – or St V’s decided to appoint a – a – what was the title – I think it was a – a nurse recruitment manager, and she was located in HR, so the recruitment actually was transferred for permanent pool to that role.
…and casual staff was no longer a function I fulfilled. I can’t remember exactly the year. I think it was around 2017 an appointment was made internally to pass that on to someone else. I worked with him, and, obviously, it was updated on the recruitment of these nurses to meet the EFT, but I didn’t always actively involve myself in that area...once that appointment was made.[21]
[21] Carol St John on Transcript of Hearing Day 1 at page 62.
Also in relation to the Position Description at Responsibility Area 2: Human Resources Management, the Applicant did not agree that the following was part of her job from 2013 until July 2020 (as the question was again put):
Ensure permanent pool and casual nurse workforce credentialing processes and procedures in accordance with the current St Vincent’s policy.[22]
[22] Carol St John on Transcript of Hearing Day 1 at page 62.
In this regard, the Applicant’s evidence was that credentialing is also part of the recruitment process. For example, she said that nurses had to be registered with the Australian Health Practitioner Regulatory Agency (AHPRA) and certificates for post-graduate studies needed to be cited and that was handled by the recruitment manager or HR before they could start.[23]
The role – pandemic times
[23] Carol St John on Transcript of Hearing Day 1 at page 62.
The pandemic context
On or around 16 March 2020, and in response to the pandemic, a state of emergency was declared in the state of Victoria. There was no dispute that this external circumstance placed a “massive strain” on the provision of health services in Victoria. Indeed, the Hospital in its defence admitted that in February 2020 upon the onset of the public health crisis it was placed under “unforeseen and inordinate strain to make available, on an urgent and safe basis, health services to the general public”.[24]
[24] Respondent’s Defence, dated 8 September 2021 at [16(b)].
By July 2020, the external environmental context had escalated. The Department of Health and Human Services Victoria reported daily on coronavirus COVID-19 case numbers. Before the Court were two such media releases, which it was accepted the Court may take judicial notice of to the following extent:
(a)On 5 July 2020, it was announced that the total number of coronavirus COVID-19 cases in Victoria was 2,536 with 74 new cases reported the previous day; and
(b)On 31 July 2020, it was announced that the total number of coronavirus COVID-19 cases in Victoria was 10,577 with 627 new cases reported since the previous day.
In this time the Hospital did not operate its Caritas facility which was closed for renovation but was requested by the Department of Health and Human Services to expand their services due to demand, and so progressively throughout the pandemic the Hospital opened and staffed additional services to meet the needs of the public.[25]
[25] Sally Kelly on Transcript of Hearing Day 2 at page 112; Carol St John on Transcript of Hearing Day 1 at page 53-54.
Relevantly the Hospital was also subject to regulation which required a minimum number of nurses or midwives per number of patients meaning, if shifts could not adequately be filled by nurses, beds would need to be closed if possible and there was a prospect that would result in cancellation of elective surgeries.[26] At the relevant times, it sourced nurses to fill vacancies in one of three ways:
(a)Permanent nurse pool – permanent nurses who are contracted for an agreed number of hours to work across a variety of wards and placed where needed usually on short notice;
(b)Casual nurse bank – casual nurses, called in as needed and sometimes in advance;
(c)Agency staff – contracted from external agencies, only called upon where the other sources were not available.[27]
[26] Affidavit of SK at [24]-[25].
[27] Affidavit of SK at [8]; Carol St John on Transcript of Hearing Day 1 at 48.
The Applicant gave evidence that, by late June and early July 2020, the situation had escalated and was affecting the Hospital’s nursing staff quite dramatically because contacts and close contacts of a person who was COVID-positive were being furloughed and restricted from working for 14 days – meaning the number of nurses available to cover any shortfalls in the wards were depleted at the same time as the wards were experiencing the same problem. At the time, only PCR tests were available.[28] A “staffing crisis”, like nothing the Applicant had known in her 40-odd years’ nursing experience, in that public health services were all competing for the same resources to cover shortfalls and meet obligations:[29]
.. a lot of the staff refused to work with COVID patients that I had within the casual bank because they were either living at home with elderly patients – parents, I should say, or young children. That – and even the nurse pool did the same, and we had to find alternative employment for those, so it limited our numbers even more from within the Nurse Workforce Unit, and also within the wards where staff were not able or willing to work with COVID-positive patients. […] And the Agencies were the same.[30]
[28] Carol St John on Transcript of Hearing Day 1 at page 52.
[29] Carol St John on Transcript of Hearing Day 1 at page 51.
[30] Carol St John on Transcript of Hearing Day 1 at page 52.
Ms Kelly agreed that there were nurses in particular circumstances, ie. who were immuno-compromised or pregnant, that did not want to work in certain areas of the Hospital.[31]
[31] Sally Kelly on Transcript of Hearing Day 2 at page 127.
Alleged changes to the NWU Coordinator role
In cross-examination, the Applicant accepted that the pandemic context meant there were some additional roles and jobs that she “needed” to take on as NWU Coordinator.[32]
[32] Carol St John on Transcript of Hearing Day 1 at page 54.
In her statement of claim, the Applicant identified changes to her role and duties in (and from) April 2020. Her affidavit was in the same terms but provided more detail at point (b), as follows:
a)handling and coordinating increased new starter numbers, internal NWU transfers and secondments;
b)oversee the redeployment of NWU & Ward Nursing Staff with the Allocation Team who had to be redeployed due to COVID 19 related health concerns such as: currently pregnant; caring for young children & or elderly family members at home; preference not to be exposed to CV-19 patient due to own health concerns / fear of contracting COVID – in most instances this was supported by GP / Medical Specialist recommendations; immunosuppression – related to self or others that reside in their home;
c)coordinating and overseeing in house training for ‘at risk’ redeployed nurses as temporary Allocation Officers;
d)oversee the nursing backfill schedules for nursing and support staff who were required to attend mandatory PPE training;
e)coordinating and overseeing casual staff stability payment requirements;
f)overseeing the provision of staff and work schedules to man the Hospital’s Temperature Control Stations;
g)coordinating and participating in the induction process for the newly created Medical Assistant role;
h)responding to any NWU staff issues relating to COVID-19; and
i)meeting all new reporting requirements.[33]
[33]Statement of Claim at [16]; Affidavit of CSJ No 1 at [15].
In this regard, the Hospital objected to the pleading of multiple conclusions of fact (which it said should be struck out) and otherwise: admitted that, in February 2019, the onset of the public health crisis in Victoria in the form of the pandemic placed health services under unforeseen and inordinate strain and applied significant strain on its limited resources and required its staff to adapt to performing their contracted roles in the face of the pandemic public health crisis; and denied there were irreversible or continuing ‘changes’ to the Applicant’s contracted role such as to constitute any variation to the primary terms and conditions of her contracted employment at that time and said that it acted in accordance with an implied term as to transfer.[34]
[34] Respondent’s Defence at [16].
Ms Kelly’s evidence was that, having reviewed the Applicant’s list of perceived changes to her role and duties:
None of the examples listed are outside the role of NWU Coordinator. I accept that the increased demand for nurses meant that the NWU was experiencing unprecedented pressures and demands. My recollection was that the NWU continued to perform the same duties, but in a higher volume and in the context of the COVID-19 pandemic.[35]
[35] Affidavit of SK at [42].
The Applicant was cross-examined about additional responsibilities she alleged to have taken on because of the pandemic context and gave evidence that her role of NWU Coordinator was:
(a)Responsible to handle and coordinate new starter numbers and induct them to start, in respect of transfers and secondments and the like which “we” (the NWU) would facilitate within the (permanent) nurse pool and the casual (nurse) bank; not for the greater part of the Hospital, only within the nurse pool and casual bank – both before the pandemic hit and after.[36]
(b)Responsible to manage ward surplus nurses with the allocation team – both before the pandemic hit and after.[37]
(c)Responsible to coordinate and oversee in house training for at-risk redeployed nurses (i.e a nurse put up as supernumerary/surplus but not suitably skilled or experienced) and provide support to her allocations team in terms of their suitable placement - only during the pandemic.[38]
(d)Responsible to backfill where staff were required to attend training for any reason (after the pandemic hit this included so they could attend COVID-PPE training) – both before the pandemic hit and after.[39]
(e)Responsible to coordinate and oversee payment claims (after the pandemic hit this included casual staff claims for a new entitlement to payment in circumstances where they had been furloughed or tested COVID-positive which involved HR having a conversation with them) – whilst the same type of responsibility as before and after the pandemic, the Applicant said this was more complex after the pandemic hit.[40]
(f)Responsible to oversee the provision of staff and work schedules to staff the Hospital’s temperature control stations (that is, one person sitting at a desk at the Hospital’s entrance, taking temperatures of entrants – both a new function and, when nursing resources became “dire”, was the first time the NWU was responsible to oversee non-nursing workforce) – only during the pandemic.[41]
(g)Responsible to oversee the role of medical assistant to be inducted – whilst oversight of induction was the same type of responsibility as before the pandemic, the Applicant said this was another example of a role to provide support staff or non-nursing staff to the wards which was therefore an “add-on” of the pandemic. [42]
(h)Responsible to handle inquiries of staff as to COVID-19 and make inquiries if necessary to resolve them- the same type of responsibility in terms of management of allocations officers which had existed both before the pandemic hit and after.[43]
(i)Responsible for submitting data and/or supporting compilation of new pandemic-related reports being requested by the Department of Health and Human Services – only during the pandemic. But the Applicant accepted Ms Kelly was ultimately responsible to compile and submit those types of reports.[44]
[36] Carol St John on Transcript of Hearing Day 1 at page 54.
[37] Carol St John on Transcript of Hearing Day 1 at page 55.
[38] Carol St John on Transcript of Hearing Day 1 at page 55.
[39] Carol St John on Transcript of Hearing Day 1 at page 55-56.
[40] Carol St John on Transcript of Hearing Day 1 at page 56-57.
[41] Carol St John on Transcript of Hearing Day 1 at page 65.
[42] Carol St John on Transcript of Hearing Day 1 at page 64-65.
[43] Carol St John on Transcript of Hearing Day 1 at page 66-68.
[44] Carol St John on Transcript of Hearing Day 1 at page 67.
The Applicant’s statement of claim and affidavit also referred to a meeting that the Applicant maintained she attended, with Ms Kelly, on Ms Kelly’s first day in the Director role (20 April 2020). The evidence of the Applicant was that Ms Kelly had advised of an expectation that the Applicant was responsible for the operational management of the NWU whilst Ms Kelly would focus on strategy and planning.[45]
[45] Statement of Claim at [14]; Respondent’s Defence at [14]; Affidavit of CSJ No 1 at [13].
The Applicant also gave evidence at the hearing (not in her statement of claim or earlier affidavits) that, in light of the first pandemic and the escalation of the second, the responsibility for managing the (permanent) nurse pool rosters was re-allocated by the Chief Nursing Officer (before Ms Kelly came on board in April 2020) and transferred to another person within the Hospital.[46] In this respect, her evidence was:
[46] Carol St John on Transcript of Hearing Day 1 at page 48.
Counsel for the Respondent: And so you were responsible for managing the nurse pool within St Vincent’s too; is that correct?
Applicant:The nurse pool came under the Nurse Workforce Unit. It did not belong to another department within St V’s until it was redeployed at some time later.
Counsel for the Respondent: Sorry. So does that mean you weren’t responsible for managing the nurse pool, just so we’re clear?
Applicant:I was, yes. In 2013, when I started the role, I was managing the nurse pool, yes.
Counsel for the Respondent: Okay?
Applicant:And casual bank, yes, I was.
Counsel for the Respondent: Thank you. And that continued through to mid-2020; is that right?
Applicant:No, the nurse pool rosters, in light of the first pandemic and escalation of the second, were re-allocated by the Chief Nursing Officer before Ms Kelly came on board, is my recall, and the responsibility was transferred to another person within the hospital.
Counsel for the Respondent: That’s the nurse pool, I think, just to be clear?
Applicant:Yes, that’s the nurse --- Yes.
Ms Kelly gave evidence that management of the permanent pool of nurses was a significant part of the NWU Coordinator role (when pressed, she said about 30% of the role, depending on what was happening at the time) and accepted that the Position Description on its face included a number of specific responsibilities relevant to management of the permanent nursing pool. Ms Kelly said that, in pandemic times, the Applicant had 2 members of the NWU team assisting her in managing the (permanent nursing) pool.[47] She accepted the proposition when put in cross-examination that the Applicant had “responsibility for recruitment and selection of the [permanent nursing] pool staff until management of the pool was removed from her”.[48] But later expressly disagreed with the proposition that the Applicant had all the functions of managing the (permanent) nurse pool taken away from her. She maintained the Applicant continued to oversee the daily operations of the NWU and that meant the daily allocation of those nurse pool staff into shifts because the nurse pool are allocated on a daily basis to fill vacant shifts.[49]
[47] Sally Kelly on Transcript of Hearing Day 2 at page 110—111.
[48] Sally Kelly on Transcript of Hearing Day 2 at page 112.
[49] Sally Kelly on Transcript of Hearing Day 2 at page 122.
Ms Kelly’s evidence was that many staff including the Applicant were taking on a higher volume of their existing responsibilities during the pandemic period from at least March 2020 to July 2020.[50] Ms Kelly accepted that the increased demand meant that the NWU was experiencing unprecedented pressures and demands.[51] The Applicant agreed that many staff were taking on additional responsibilities during this period.[52] The Applicant acknowledged that the NWU allocations officers team increased in number for a time (by 2, being a 1.6 full time equivalent) as there were some nurses who could not work in a clinical setting and were deployed to work with the NWU as allocations officers – she said this created more work initially in terms of training but ultimately meant more labour which was a benefit to offset some of the workload.[53] Those extra staff were then transferred to another area (contact tracing) from 17 July 2020.[54] The Applicant also said she worked extra hours, without breaks and unpaid overtime; whereas Ms Kelly said she never directed extra hours, did not accept that the Applicant did so without breaks or payment, but conceded her office was on a different floor.[55]
[50] Sally Kelly on Transcript of Hearing Day 2 at page 128.
[51] Affidavit of SK at [42].
[52] Carol St John on Transcript of Hearing Day 1 at page 67.
[53] Affidavit of CSJ No 2 at [7]; Carol St John on Transcript of Hearing Day 1 at page 68.
[54] Affidavit of CSJ No 2 at [41]-[42].
[55] Affidavit of CSJ No 1 at [15]; Sally Kelly on Transcript of Hearing Day 2 at page 128.
Ms Kelly gave evidence of the increasing number of infections in June, July and August 2020 and said that, around that time (in cross-examination she said specifically July 2020), the NWU Coordinator role was required to “evolve to meet escalating workforce demand”.[56] She also accepted the proposition put to her in cross-examination that the Applicant had to be moved from the NWU Coordinator role because Ms Kelly held the view that the Applicant was not “capable of performing what the role had evolved into”.[57]
[56] Affidavit of SK at [21].
[57] Sally Kelly on Transcript of Hearing Day 2 at page 128.
Alleged performance concerns
The Applicant and Ms Kelly were critical of each other’s performance. For example, the Applicant said Ms Kelly “micro-managed” her notwithstanding the clear delineation of duties from their first meeting on 20 April 2020.[58] Ms Kelly gave examples of the Applicant’s alleged inflexibility or reactive rather than proactive approach to her role in the pandemic period. The Applicant vigorously defended those allegations, including by saying that nurses were at times asked to work outside the scope of their duties and voiced their concerns about this – the Applicant said her purpose in those instances was “not to be difficult” but rather to alert her direct manager to potential risks.[59] Ms Kelly strongly denied any employee being asked to work outside the scope of their duties.[60] The Applicant and Ms Kelly also disputed, in evidence, the degree of their interaction and ordinary methods of their communication.[61]
[58] Affidavit of CSJ No 1 at [14].
[59] Affidavit of CSJ No 2 at [19]-[20].
[60] Affidavit of SK at [42].
[61] Affidavit of CSJ No 2 at [24]-[25]; Affidavit of SK at [38]-[39].
At 2.55pm on 16 July 2020, the Applicant emailed Ms Kelly as her direct manager to notify her of 16 vacancies on night shift that same day. The Applicant’s evidence was that this was not unusual in the context of the pandemic but accepted that arising from nurse-to-patient ratios prescribed by regulatory requirements the possible consequence of that many vacancies included beds closure and cancellation of elective surgeries.[62] Whereas Ms Kelly’s evidence was that there were in fact 18 (not 16) vacancies at that time and this was a late stage to raise the issue with very serious consequences. Specifically, this “significant staff deficit” had 2 consequences:
(a)it forced the Hospital to close 7 inpatient beds due to unsafe staffing levels/ratios; and
(b)as a result of the bed closures, there was a cancellation of 6 elective surgeries scheduled for the following day.[63]
[62] Carol St John on Transcript of Hearing Day 1 at page 69.
[63] Affidavit of SK at [43].
Ms Kelly said that, before leaving on that evening of 16 July 2020, she checked in with an allocations officer who said she had managed to cover most of the vacancies and the bed closures had assisted with this. Further, that the vacancies had not arisen in that number just that day and were known to the NWU the evening prior.[64]
[64] Affidavit of SK at [44].
The Applicant gave evidence that she worked, with one of her direct reports (an allocations officer) and Ms Kelly, to resolve the issue and by the time of her departure at around 5 or 5.30pm there was only 1 vacancy left unfilled. She maintained she was not told there were 7 vacancies, or that any elective surgeries were cancelled.[65] In cross-examination, whilst saying she ultimately took responsibility for this issue, the Applicant said responsibility to ensure vacancies were filled rested with the allocations officers in her team who were responsible to raise such issues with her and whom she only overheard discussing the issue and had not otherwise been informed. Further, that she had “reported up” to Ms Kelly even if it were later on in the day after she had tried to sort it out.[66]
[65] Carol St John on Transcript of Hearing Day 1 at page 71.
[66] Affidavit of CSJ No 2 at [30]; Carol St John on Transcript of Hearing Day 1 at page 73.
At 11.14am on 17 July 2020, the Applicant wrote to Ms Kelly in which she informed of having overheard Ms Kelly on the phone discussing concerns about the Applicant’s performance, which she said was very loud and audible in the corridor. The Applicant concluded that email with:
It was disappointing... I’ve sensed for some time that you lack confidence in my ability. This confirmed it.[67]
[67] Affidavit of SK at SK-4 page 7.
At 12.06pm on 17 July 2020, Ms Kelly forwarded the Applicant’s email to Mr Garcia (then Senior IR Manager of the Hospital) with her proposed response. Mr Garcia responded at 1.07pm in which he suggested Ms Kelly “hold off” and suggested a Ms Kath Riddell (Chief Nursing Officer of the Hospital) meet with the Applicant as a next step on account of her previous meetings with the Applicant about her “performance and retirement date”. The email exchange in evidence showed that the conversation between the 3 continued, with Ms Riddell having reported on her previous performance discussions with the Applicant, her understanding the Applicant was not intending to retire anytime soon and her view that Ms Kelly should reply by email.[68]
[68] Affidavit of AG at AG-1.
Mr Garcia gave evidence that he had also received a phone call from Ms Kelly, on 17 July 2020, who at that time reported there had been a “serious problem with nurse staffing” the previous day. He said Ms Kelly raised concerns about the Applicant’s performance, specifically that there always seemed to be “blockages” rather than support, and asked for urgent help. Ms Kelly told Mr Garcia that she needed someone more agile and responsive to the Hospital’s needs and supportive of the team. According to Mr Garcia, Ms Kelly raised opportunities in other teams which she thought were within the Applicant’s capabilities. Ms Kelly corroborated this account in her evidence and an email exchanged between the two later that day was also in evidence.[69]
[69] Affidavit of AG at [5]-[6]; email at AG-1; Affidavit of SK at SK-4.
On 20 July 2020, the Applicant received a meeting invitation by email from Mr Garcia. The invitation was in evidence – the meeting was scheduled for 21 July 2020 and the subject line said “Meeting to discuss work expectations”. The meeting was to take place by video using Microsoft Teams. There was no agenda provided or invitation to bring a support person.[70]
[70] Affidavit of AG at AG-2; Affidavit of CSJ No 2 at [32].
Removal from NWU Coordinator role
On 21 July 2020, the Applicant attended the meeting with Mr Garcia and Ms Kelly - the Applicant was by telephone (without a camera) and the others by video using Microsoft Teams.[71]
[71] Carol St John on Transcript of Hearing Day 1 at [75].
The Applicant’s recollection of that discussion was that Mr Garcia said that she was to “step down” from her role and was offered redeployment to any of the Hospital’s: COVID contact tracing team; the COVID advice team; or the COVID alert team. She did not recall those being described as “possible” alternative roles or an “interim” or “temporary” arrangement.[72] She did recall Mr Garcia having said that she needed to make a decision by 23 July 2020 as a replacement for the NWU Coordinator role had already been selected.[73] She accepted that Mr Garcia said words to the effect of: “We require someone who can get the job done and provide (Ms Kelly) with the support she needs”.[74] The Applicant’s evidence was also that she had no prior awareness of the intention of the Hospital to remove her from her substantive position.[75] Further, that she was in shock and anxious at that stage, and had to clarify what was being said.[76]
[72] Affidavit of CSJ No 2 at [43].
[73] Affidavit of CSJ No 1 at [17].
[74] Carol St John on Transcript of Hearing Day 1 at page 74-75.
[75] Affidavit of CSJ No 2 at [31].
[76] Carol St John on Transcript of Hearing Day 1 at page 75 .
Mr Garcia recalled that the discussion involved his communication to the Applicant that she was not meeting the standards required of her in her role and, due to the evolving nature of the pandemic and the requirements of the NWU, the Hospital needed someone who could respond quickly. He insisted that he conveyed she would be placed in another role as an “interim” measure, during the pandemic. He also said he offered 3 roles that had been identified that she could choose to work in. Mr Garcia recalled that the Applicant was clear that she was not interested in any of the roles and wanted time to consider her options, and then ended the meeting by leaving it.[77] At 8.13am on 22 July 2020, Mr Garcia sent an email to internal recipients (Clinton Cummins - Executive Director Performance Improvement, Vanessa Tetaz - General Manager People Services and Fulvio Penna - General Manager People Services). In it, he said that the Applicant had responded to the performance concerns by claiming that Ms Kelly was not clear with instructions and also made reference to difficulties with her previous manager and said she was not comfortable with Mr Garcia’s process. That email reflected Mr Garcia had communicated to the Applicant that “in the interim” she would be placed in another role during COVID-19, that Ms Kelly suggested roles and the Applicant said she was not interested and wanted time to consider her options.[78] Ms Kelly mostly corroborated Mr Garcia’s account of this discussion but added it ended “abruptly” when the Applicant left the meeting.[79]
[77] Affidavit of AG at [11]-[13].
[78] Affidavit of AG at AG-4.
[79] Affidavit of SK at [52]-[54].
The Applicant strongly denied, and both throughout the proceedings and at the hearing continued to maintain, that she was never told that the removal was “interim” or “temporary”. The Applicant’s evidence was she could not recall responding about Ms Kelly’s communication style or her previous manager but she did recall saying that Ms Riddell had put her back in the NWU Coordinator role after a secondment to cover the NWU unit and make sure it was managed correctly while she sought a new incumbent which was Ms Kelly in April 2020. She denied having ended the meeting by leaving it and said she was under the impression the meeting had ended (noting she was attending by telephone).[80]
[80] Affidavit of CSJ No 2 at [44]; Carol St John on Transcript of Hearing Day 1 at page 75.
Also on 22 July 2020, Mr Garcia sent another email invitation to the Applicant and Ms Kelly titled “Follow up discussion”. That invitation included a list of “currently available” alternative roles for the Applicant’s consideration.
Also on 22 July 2020, the Applicant emailed Mr Garcia for her personal email address in which she stated:
Further to our telemeeting yesterday I am advising that:
I reject SVHM’s offer to be redeployed to an alternative role
I will be on sick leave until 9th August 2020
Any further conversation in respect to this matter can be undertaken on my return to work.
(sic.)[81]
[81] Affidavit of AG at AG-5.
The Applicant subsequently claimed not to have received Mr Garcia’s list of alternative roles in the follow up meeting request, as she was by then on personal leave and not able to access her work emails from home.[82]
[82] Affidavit of AG at [14]; Carol St John on Transcript of Hearing Day 1 at page 77.
The Applicant supplied medical certificates and was paid personal leave, at $1,890.42 gross per week, until 24 December 2020.[83] After the Applicant had exhausted her paid personal leave entitlements, from 24 December 2020, she took unpaid personal leave.[84]
[83] Affidavit of SK at SK-6-SK-7; Carol St John on Transcript of Hearing Day 1 at page 82.
[84] Affidavit of AG at [18].
On 14 January 2021, the Applicant filed a general protections (non-dismissal) claim with the Fair Work Commission pursuant to s.365 of the Act. On 9 February 2021, the Applicant and representatives of the Hospital participated in a conciliation conference before Commissioner Lee. It is not contentious that there was no agreement to resolve the matter but the Applicant did not pursue that claim.[85]
[85] Affidavit of AG at [19].
Acceptance of the alleged repudiation
On 18 February 2021, the Applicant’s solicitors wrote an open letter to the solicitors for the Hospital (18 February Letter). It said:
We refer to the recent Fair Work conciliation conference held before Commission Lee in the above matter.
As you know, on 21 July 2020, our client was directed to step down from her role as a NWU Coordinator by St Vincent’s Hospital (Melbourne) Limited (St Vincent’s).
Our client had been performing the role of NWU Coordinator for 15 years and is an essential term of our client’s contract of employment. The unilateral alteration to that term by your client is a material breach of our client’s contract of employment. Moreover, by reason of this conduct, St Vincent’s has evinced a clear intention to no longer be bound by the employment agreement or to fulfil it only in a manner substantially inconsistent with its obligations. Such conduct would convey to a reasonable person in our client’s position that it has renounced the employment agreement as a whole or a fundamental obligation under it: BearingPoint Australia Pty Ltd v Hillard [2008] VSC 115.
On 24 August 2020 we were instructed to write to your client putting them on notice of the breach. Your client has denied any breach of our client’s employment contract and has refused to reinstate our client to her position.
Our client has now instructed to write to you to put your client on notice that if it does not remedy the breach by reinstating our client to her original and back paying her for the period she has been stood down, she will accept the repudiation as termination of employment.
Please confirm by no later than close of business 19 February 2021 that your client will immediately reinstate our client to her original role (subject to medical clearance by our client’s doctor) and agree to back pay our client for period between 20 July 2020 to present including any additional amounts for public holidays which would have been worked.
In the absence of a response or in the event that your client declines to remedy the breach in the above manner, this letter should be taken as notice that effective 5pm 19 February 2021 our client accepts the breach as terminating the employment contract. Our client otherwise reserves all rights.
(sic.)
On 19 February 2021, the solicitors for the Hospital responded to the 18 February Letter (19 February Letter). Among other things it said:
Our client denies that it has stood down Ms St John since 21 July 2020.
On 21 July 2020 it sought to discuss with Ms St John its concerns regarding her inability to perform her role. St Vincent’s had previously had concerns regarding Ms St John’s performance but these concerns were exacerbated as a result of the escalating requirements due to COVID-19. Mr Arnold Garcia and Ms Sally Kelly spoke to her about their concerns about her performance in the role and the possibility of her performing an alternative role. Ms St John advised the following day that she was taking sick leave until 9 August and that discussions about her role would need to wait until her return to work.
As you are well aware your client has been certified unfit for all duties since that time. Her current certificate of capacity relates to the period 1 February 2021 to 28 February 2021.
In those circumstances, our client denies that it has breached Ms St John’s employment contract or refused to reinstate her to her position.
Ms St John has clearly been unfit to return to work since 22 July 2020 as evidenced by her own medical certificates.
Our client denies any repudiation of Ms St John’s employment contract. It remains committed to meeting with her to facilitate a return to work as soon as she is certified fit to do so.
Given the length of Ms St John’s absence our client has instructed us to foreshadow that if Ms St John is in the future fit to return to work, it requires a medical report from Ms St John’s treating doctor that addresses any reasonable accommodations that may be required to assist her to safely return to work.
In addition the performance issues that have been raised with Ms St John will need to be canvassed with her once she is fit to return.
On 25 February 2021, the Applicant’s solicitors wrote by letter to the Hospital (25 February Letter). The 25 February Letter re-asserted points from the 18 February Letter as to the alleged stand down on 21 July 2020, that the 18 February Letter placed the Hospital on notice of the breach and afforded an opportunity to remedy it, confirmed the 19 February Letter denied any breach and confirmed the remedial action sought would not be taken. Importantly, it also said:
Accordingly, by reason of your client’s breach of the employment agreement and its refusal to remedy that breach, our client hereby accepts the Repudiation as terminating her employment agreement effective as of today.
The 25 February Letter also reserved all rights in respect of the alleged breach of contract and adverse action under Part 3-1 of the Act, including with respect to any claim for losses arising from the aforementioned events.
The NWU Coordinator role since 21 July 2020
Ms Kelly and Mr Garcia gave evidence that there was no known replacement for the NWU Coordinator role as at 17 July 2020.[86]
[86] Affidavit of AG at 7-8; Affidavit of SK at [58]; Arnold Garcia on Transcript of Hearing Day 2 at page 98.
For about 1 week after the 21 July 2020 meeting, Ms Kelly’s evidence was that she took on and oversaw those duties herself until the Hospital could find a temporary replacement for the NWU Coordinator role.[87]
[87] Affidavit of SK at [58]; Affidavit of AG at [11].
On 28 July 2020, a temporary replacement commenced in the role.[88]
[88] Affidavit of SK at [59].
In or around February 2021, after the Applicant’s employment had come to an end, Ms Kelly said she conducted a review of the role before advertising for candidates. As part of that review, she accepted there was a change to the role which was reflected in the Position Description which was advertised in around May 2021.[89]
[89] Sally Kelly on Transcript of Hearing Day 2 at page 125.
On 27 July 2021, a permanent replacement commenced in the role.[90]
[90] Affidavit of SK at [60].
Ms Kelly’s evidence was that, as of 1 March 2022, the NWU Coordinator role remained in the Hospital’s organisational structure, had not been abolished and remained an important role in staffing operations. She acknowledged there had been one small modification (the nurse pool staff team no longer reported through to the NWU Coordinator and now reported to a new role) but otherwise the role was the same and not redundant.[91]
[91] Affidavit of SK at [61].
PROCEEDINGS BEFORE THIS COURT
These proceedings were commenced in the Fair Work jurisdiction of this Court. The Applicant was represented by a lawyer at all times and did not (in the originating application or at any stage of the proceedings) indicate that she wanted the smalls claims procedure to apply. Accordingly, it did not proceed as a “small claim” for the purposes of s.548 of the Act and the ordinary rules of evidence and procedure applied. In those circumstances and as the case was commenced and run by way of pleadings it attracted the application of the Federal Court Rules 2011 (Cth) with regard to procedure: r.1.06 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021; Div 16.1 Federal Court Rules 2011 (Cth). As will appear, this is a matter that may have had some bearing on the case before the Court but ultimately did not.
The originating application and subsequent materials of the Applicant did not precisely identify the provisions of the Act under which the claim was pursued. However, the Hospital properly accepted that the case had been argued and defended as though it were a penalty case for breach of an enterprise agreement and the accrued jurisdiction for breach of contract: ss.50, 539, 542, 543 and 566 of the Act. In the particular circumstances of this case, I was prepared to afford such liberty to the Applicant and to the extent necessary allow an amendment of the originating application and statement of claim to so reflect.
At the outset, counsel for the Hospital sought leave to amend its Amended Defence which was not opposed. That amendment was granted.
THE REDUNDANCY CLAIM
The pleadings
The Applicant’s primary claim was that her role was redundant and therefore she was entitled to redundancy or severance entitlements which the Hospital did not pay.
The statement of claim included the following (summary of cross-references and defined terms inserted in italics below for ease of understanding):
Breach of Redundancy Term
27. By reason of the matters pleaded to in paragraphs 11 [Applicant’s responsibilities in the role of NWU Coordinator, defined as “the Primary Duties”], and paragraph 18 [20 July 2020 meeting attended by Applicant, Mr Garcia and Ms Kelly] the Applicant’s role was no longer required to be performed by anyone. Accordingly, the Applicant’s role was redundant (Redundancy).
Particulars
As per paragraph 18(a), Mr Garcia stated that due to COVID-19, the Applicant’s role had to materially change given the Respondent’s reduced capacity to provide staff to wards. As such, the role of NWU Coordinator was no longer that described by the Primary Duties.
28. By reason of the matters pleaded in paragraphs 10 [Applicant is entitled to 25 weeks’ redundancy pay (Redundancy Term)], 11, and 18, the Direction to Step Down [defined at 18(b)] was by reason of Redundancy. Accordingly, pursuant to the Redundancy Term the Applicant was entitled to receive payment of 25 weeks redundancy pay (Redundancy Pay).
29. The Respondent has failed, refused or neglected to pay the Redundancy Pay. Accordingly, the Respondent has breached the Redundancy Term.
30. The abovementioned breach of the Employment Agreement has caused the Applicant to suffer loss and damage.
Particulars of loss
The Applicant’s loss is the Redundancy Pay being $48,076.92 calculated as follows; (Annual Salary / 52 weeks) x 25 weeks
The pleadings as to the “Redundancy Term” in the statement of claim were as follows:
10. The Applicant is entitled to the 25 weeks Redundancy Pay (the Redundancy Term).
Particulars
The Redundancy Term is contained in clause 12.7 of the Enterprise Agreement. Clause 12.7 of the Enterprise Agreement provides that the policy with respect to public sector redundancy and the entitlements upon termination of employment as a result of redundancy are set out in the Public Sector Workplace Relations policies 2015 (the Policy).
The Policy provides that inter alia;
(a) A Targeted Separation Package (TSP) is a bona fide redundancy scheme for taxation purposes;
(b) Bona Fide redundancies will arise where facilities or functional areas are closing, the organization is being wound up, or where employee’s skills are no longer requires in the public sector;
(c) The TSP comprises of;
i.4 weeks pay, irrespective of the employee’s length of service; plus
ii.1 additional week of pay if the employee is over 45 years of age and has completed at least 2 years continuous service; plus
iii.2 weeks’ pay per each completed year of continuous service up to a maximum of 10 years.
The Applicant is entitled to 25 weeks redundancy pay calculated as follows;
4 weeks + 1 week + (2 weeks x 10 years) = 25 weeks.
By matters pleaded in the statement of claim at [30], the Applicant has suffered monetary loss of $48,076.92 owing to the Hospital’s breach the Redundancy Term and not paying the Applicant the redundancy payment owed pursuant to the 2016 Enterprise Agreement.[92]
[92] Statement of Claim at [30].
Particulars of loss
The Applicant’s loss is the Redundancy Pay being $48,076.92 calculated as follows; (Annual Salary/52 weeks) x 25 weeks
In its defence, the Hospital denied that the Applicant was “directed to step down” on 20 July 2020 or any other subsequent date. It said the Applicant was offered a temporary transfer (to roles in the infection control tracing team, the COVID-19 advice line or the COVID-19 alert clearing term) until the pandemic public health crisis and the threats it posed had abated. It further denied any redundancy and said the position remained unchanged and continued to exist even at the time of hearing. In any event, the Hospital denied that clause 12.7 of the 2016 Enterprise Agreement imposed an obligation on the Hospital to make a payment.
The Hospital also raised some objections to the form of the pleadings which the Court heard and determined to rule on after the hearing. I accept and allow the objections to paragraphs 14 and 15 of the statement of claim (in their entirety) and, other than as to the fact of a meeting on 20 July 2020 that was attended by the Applicant, Mr Garcia and Ms Kelly, the remainder of paragraph 18 be struck out. It may be noted that these paragraphs related to matters which nonetheless arose in evidence in connection with other pleadings.
The respective contentions
By the primary claim, the Applicant sought to establish that her role was redundant. Essentially that, arising from the onset of the pandemic, the “collection of duties” she performed in her role as NWU Coordinator changed or altered significantly such that it was “no longer required to be performed by anyone”.
In her statement of claim and filed written submissions, the Applicant claimed her role changed because she undertook additional roles and duties in and from April 2020. However, by closing submissions the Applicant asked the Court to find the changes occurred over the period March to July 2020 and significantly the removal of the responsibility to manage the permanent nurse pool.
The removal of permanent nurse pool management was said, of itself, to justify a conclusion of redundancy. Whilst acknowledging a careful review of the transcript was required, the Applicant put to the Court that the evidence established the removal of these duties and that this alone represented around 30% of the role. The significance was plain from a review of the Position Description which demonstrated that management of the permanent nurse pool was intertwined in a range of key responsibilities.
The Applicant also contended that there were further changes to her role in terms of additional duties arising from the pandemic: some entirely new tasks and some that were consistent with her original responsibilities in the role but only came into being because of the pandemic.
Together, these changes were said to be of substance. The Court was asked to conduct an impressionistic assessment and find that, with some removals and some additions, the old role had changed sufficiently that it had ceased to exist.
Whether components of the role were taken away or changed before or after 21 July 2020, the Applicant maintained that she performed the role until directed and it was only in the meeting of 21 July 2020 that it ceased to exist – because that is when she was directed to “step down” as a result of her role changing and as a result was offered redeployment. The alternative roles were not suitable alternatives because they were more junior (not middle management, could be performed by medical students).
The Applicant denied that her performance in the role was the reason for the direction to perform another role. Rather, she said that the circumstances of the pandemic did not justify her skills being assessed against a new standard or new set of requirements in the role. She had some 40 years’ experience, had been in the role for some 7 years and was not being performance managed prior to the pandemic. She contended that the incident of 16 July 2020 ought to have prompted support in the role rather than triggering a direction to stop performing it, without warning.
By her statement of claim and filed materials, the Applicant asked the Court to find that she was entitled to 25 weeks’ redundancy pay under cl.12.7 the 2016 Enterprise Agreement and the Policy referenced therein. In closing submissions, the Applicant asked that if the Court were to determine an order for payment could not be made under the 2016 Enterprise Agreement then she sought a declaration that her role was no longer required to be performed by anyone, in accordance with the commonly recognised common law principles of redundancy.
The Hospital opposed any such characterisation and urged the Court not to allow an expansion of the pleadings to include alleged role changes not expressly stated therein including the removal of responsibility for the permanent (nurse) pool rosters. It said that penalty proceedings require precision of pleadings and the Applicant should be held to them: Sabapathy v Jetstar Airways [2021] FCAFC 25.
The Hospital contended that the redundancy claim failed for want of proof, on the facts, being advanced on a very particular factual basis – the material facts plead at paragraph 16 of the statement of claim and the “position alteration” as defined in the Applicant’s outline.[93]
[93] Court book, at 29-30.
In its defence, the Hospital plead that there were no irreversible or continuing changes and no variation to the role. Any changes the Applicant could point to were entirely consistent with the Applicant’s role as reflected in the Position Description.
Accordingly, there was no sound factual foundation upon which the Court could find that the role was made redundant whether before or on 21 July 2020 during the pandemic, after the Applicant commenced personal leave on 22 July 2020 or after the Applicant’s employment ceased on 25 February 2021.
In any event, the Hospital said there was no basis to find a 25-week entitlement to redundancy pay under clause 12.7 of the 2016 Enterprise Agreement because it expressly provided that the Policy does not form part of the 2016 Enterprise Agreement and therefore was not enforceable under its terms.
The relevant principles
Notwithstanding that the Applicant said the source of her entitlement to redundancy pay derived from the 2016 Enterprise Agreement (and the Policy incorporated by reference therein), she framed the question before the Court not by the definitions of redundancy in those instruments (the 2016 Enterprise Agreement and/or the Policy) or the statute but rather by reference to the orthodox common law considerations as: whether her role was no longer required to be performed by anyone.
In this respect, the relevant legal principles were not in dispute. The Applicant drew the Court’s attention to a series of propositions about the meaning of “redundant” or “redundancy” as derived from classic industrial case authorities: for example, R v Industrial Commission of South Australia; ex parte Adelaide Milk Cooperative Ltd (1977) 44 SAIR 1202 and Finance Sector Union of Australia v Commonwealth Bank of Australia [2001] FCA 1613. The Hospital did not dispute those general principles, citing the following passage of CMP Manufacturing Limited v Barbieri (2018) 275 IR 465 per Bromberg J in the context of a claim arising under a contract of employment and the statute:
The term ‘redundant’ is not a legal term of art and what is meant is often dependent on the context: Amcor Ltd v Construction Forestry Mining and Energy Union (2005) 222 CLR 241 (Amcor) at [14] (Gummow, Hayne and Heydon JJ). The usual case is where the duties which constitute a particular position are no longer required to be performed by anybody. That may arise because the need or demand for the performance of those duties has diminished to such an extent there is no longer a need for their performance at all. Alternatively, a restructuring or re-ordering of the duties or tasks required to be performed by employees within a particular business may result in a position or positions becoming redundant because the bundle of duties that did constitute a particular position are no longer required to be performed by anybody as a bundle of duties constituting the particular position. For example, where the duties of a position are distributed to other positions making the first position redundant, or where the duties of a position are so change or altered that a different position is created the result of which is that the original position is redundant…”[94]
[94] CMP Manufacturing Limited v Barbieri (2018) 275 IR 465 at [12] (Bromberg J).
Consideration
The case was run and defended on the basis that the “redundancy” pay component was for breach of clause 12.7 of the 2016 Enterprise Agreement (which, the Applicant said, incorporated the Policy’s 25-week severance pay entitlement by reference at clause 12.7).
Contravention of an enterprise agreement is a civil remedy provision: s.50 of the Act. This Court has jurisdiction to determine an application alleging contravention of this provision made by an employee as defined: s.539 of the Act.
Where satisfied that a person has contravened a civil remedy provision, the Court has jurisdiction to make an order awarding compensation for loss that a person has suffered because of the contravention: s.545 of the Act.
There is no dispute in this case that the Applicant was an “employee” as defined by the Act and that the 2016 Enterprise Agreement covered and applied to the Applicant: within the meaning of ss.12, 42 and 51 of the Act.
Was the Applicant’s role no longer required to be performed by anyone?
The Applicant asked the Court to first determine this question in order to reach a finding of compensation by way of redundancy pay under the 2016 Enterprise Agreement.
From 2013, the Applicant held a middle-management role of NWU Coordinator with a team of direct reports. She reported at all times to a manager - from 20 April 2020, that was Ms Kelly who held the title of Director of Nursing Workforce, Strategy and Planning.
The period February 2020 (the date the Hospital admitted as representing the onset of the pandemic) until 22 July 2020 (when the Applicant commenced personal leave), was a challenging time for the Hospital and its operations were strained. It may be accepted that, in the month of July 2020, there was a “spike” in the pandemic, as reflected in the Department of Health and Human Services media releases. It would appear uncontroversial that the various pressures on the resources of the Hospital and in turn the Applicant’s role were exacerbated during this period as a result of the spike, which was simultaneously affecting all public health services and their resources across the state of Victoria. However, the Applicant’s claim is founded on changes alleged to have occurred on and from April 2020. That is the relevant period for present purposes.
There was little difference between the parties as to the nature of the responsibilities of the NWU Coordinator role prior to the pandemic. The Applicant confined her case in this respect to the items listed in her statement of claim. The Hospital, in relying on the Position Description, essentially accepted the Applicant’s list but sought to put those duties in the context of the entirety of the role’s functions and key responsibilities.
Ms Kelly acknowledged that, in the pandemic environment, the Applicant’s role was required to “evolve”. The Applicant asked the Court to find that “evolve” means “change”. However, that term is somewhat ambiguous. Precisely what Ms Kelly meant by it and, if she was referring to change, the degree of such change was not resolved in evidence. I place little store in the reference particularly given Ms Kelly’s simultaneous strong denial of substantive change and the relative volume of detailed evidence on the precise duties performed both pre- and post-pandemic.
In her statement of claim, and filed written submissions, the Applicant specified a list of changes to her role alleged as occurring in and from April 2020.[95] Of that list, and on close inspection of the evidence before the Court, I consider the Applicant to have established that, arising from the pandemic context, the NWU was required to perform its functions differently to the extent that:
[95] Statement of Claim at [16]; Applicant’s Outline of Submissions at [10]-[12].
(a)there were increased numbers of new starters (transfers and secondments) to be inducted and facilitated within the permanent nurse pool and the casual nurse bank;
(b)the management of ward surpluses became increasingly difficult given the various nursing resourcing challenges which was compounded by the fact that the entire public health service was affected by those same factors and competing for the same nursing resources;
(c)to facilitate nursing staff attendance at mandatory COVID-PPE training, nurses were required to be backfilled;
(d)a new form of COVID-related (staff stability) payment had specific eligibility assessment requirements and prompted new queries of the NWU;
(e)redeployed nurses who were considered “at-risk” required in-house training for transferred or seconded roles and suitable placement was required of the allocations officers;
(f)nursing staff had new types of queries to which the NWU was responsible for providing a response and/or attending to resolution;
(g)the NWU was required to submit data and support compilation of specific pandemic-related reports to the Department of Health and Human Services which were prepared by Ms Kelly;
(h)a temperature control checking station was introduced at the entrance(s) to the Hospital and required provision of staff and work schedules of the NWU (which came to include non-nursing staff);
(i)a new non-nursing role of medical assistant required coordination and induction by the NWU; and
(j)the sheer volume of work to be performed by the NWU during the relevant period was significantly increased.
The Applicant, as NWU Coordinator, was responsible to oversee, coordinate, supervise and support the NWU team in each of the above functions. Accepting that the established differences in the performance of duties equally applied to the Applicant as NWU Coordinator in discharging her oversight, supervisory, management or leadership responsibilities in that role, these examples do not (individually or together) demonstrate the position was so changed or so altered as to create a different position altogether. To the contrary, in each case, the substance of these duties can be aligned with a “key responsibility” in the Position Description that had applied to the role since the Applicant’s commencement in 2013. More specifically:
·The Applicant accepted, and I agree, that each of (a) to (d) above were the same both pre- and post-pandemic.
·Each of (e) to (f) may fairly be described as new subject matter but the responsibility in substance was the same both pre- and post-pandemic.
·Regarding (h) and (i), whilst new to the extent they involved non-nursing staff, were otherwise entirely consistent with the pre-pandemic responsibilities.
·As to (j), the evidence was that the increased volume was met with additional resources to support the NWU for a period (until 17 July 2020, when they were deployed elsewhere) and with the focus on placing nurses in wards there were some other “business as usual” functions that did not occur.
Some import came to be placed on the Applicant’s evidence (given at the hearing and not in filed materials) about removal of duties relevant to management of the permanent nursing pool. The Applicant said an amendment to the pleadings was not strictly required given the use of the term “inter alia” when describing the changes to the role (in and from April 2020) in the statement of claim. The Hospital said it was not on notice and strongly opposed the allowance of this evidence or amendment to the pleading. For reasons which follow, I do not in any event consider the evidence to rise to the level that the Applicant contended as to establish her redundancy claim.
At the hearing, the Applicant gave some evidence of changes to her permanent nurse pool responsibilities.
First that, in or around 2017, recruitment and credentialing of the permanent nurse pool was reallocated to human resources. This was accepted as not relevant to the pleaded redundancy claim.
Second that, during the pandemic but before Ms Kelly’s commencement on 20 April 2020, the permanent nurse pool rosters were reallocated by the Chief Nursing Officer and that responsibility was transferred to another person within the Hospital. This evidence does not obviously or definitively relate to the specifically pleaded changes or the pleaded period of changes. In any event, on a careful review of the transcript, it is clear on the Applicant’s own evidence that even if nurse pool rosters were removed at some point before 20 April 2020 she had at all times (pre-pandemic and post-pandemic) held responsibility for oversight of the permanent nursing pool. In cross-examination, the Applicant was taken to each of the specific responsibilities set out in her statement of claim and her filed affidavit and, in elaborating on which of those applied from 2013 through to mid-2020, accepted her role held responsibilities related to the permanent nursing pool. For example, the Applicant gave evidence that from 2013 to 2020 she was required to provide leadership and management to allocations officers in respect to permanent (nurse) pool and (casual) bank staff. She also took particular care to clarify that her responsibility to support the allocations team also extended to the (permanent) nurse pool even though the Position Description did not say this. She also gave evidence of how she would identify training needs for permanent (nurse) pool and casual (bank) staff and supported their performance and development. There was also the Applicant’s evidence of the additional 2 team members allocated to support the NWU with rostering during the pandemic (at least until 17 July 2020 when they were deployed to contract tracing, leaving the NWU team with pre-pandemic level of resources from that time). The Applicant said she was responsible to train those roles and acknowledged they provided a benefit in terms of offsetting some of the NWU’s workload.
Ms Kelly’s evidence was consistent with that of the Applicant in this respect. Ms Kelly accepted the Applicant no longer had responsibility for recruitment of selection of the permanent nursing pool staff (her direct knowledge only, but relevantly, extending to the period post her commencement on 20 April 2020). Ms Kelly otherwise maintained that the Applicant had continued to oversee the daily operations of the NWU which meant the daily allocation of the nurse pool staff to fill vacant shifts. I accept this evidence of Ms Kelly, which I understood to be consistent with the careful, specific clarifications of the Applicant, that the Applicant remained at all times responsible to oversee the work of the NWU and the additional resources that were supplied to it.
On the evidence, I consider there is no basis to conclude that the entire responsibility for the permanent nursing pool was removed from Ms Kelly at any time before 22 July 2020. If the Applicant’s case regarding redundancy rests on this, then it must fail.
Even if the Applicant had formally sought and been allowed to amend the pleadings to claim the redundancy occurred at a later date, the evidence does not establish any substantial changes to the role which was then performed by a temporary replacement(s) in the period of the Applicant’s personal leave until cessation of her employment on 25 February 2021.
Indeed, the evidence establishes that the role of NWU Coordinator remained in the Hospital’s organisational structure at all relevant times and at the time of the hearing continued to be required and performed. On the weight of evidence before the Court, I am not persuaded that changes made to remove the nurse pool management when the role of NWU Coordinator was readvertised in May 2021 (not filled until July 2021) assist in establishing the redundancy claim which was plead to occur in July 2020. Nor would I find that subsequent change to establish a redundancy claim on or around 25 February 2021 on the evidence before the Court.
Further, the reporting lines of themselves were not in contention or alleged to represent a fundamental change to the role. Nor was the discussion between the Applicant and Ms Kelly, on or about Ms Kelly’s first day (wherein Ms Kelly was said to have conveyed her direction that the Applicant would be responsible for operational management of the NWU as distinct from strategy and planning which would be Ms Kelly’s focus) plead as a change to the role arising from the pandemic in support of her redundancy claim. The fine reference to a change to visibility of budget/finance reporting through discussion with the Applicant’s manager since Ms Kelly started (never a core responsibility of the Applicant) similarly was not plead as relevant to this claim. Even if plead and proved, I would not consider these things to be inconsistent with the Applicant’s Position Description or to point in favour of a finding of redundancy in this case.
On the evidence before the Court and with regard to the above findings, and whether the established changes or differences to the Applicant’s role are considered individually or together, I do not consider the Applicant’s role was redundant (whether at, on or around 22 July 2020 or 25 February 2021) in that it was no longer required to be performed by anyone. The demand for the NWU Coordinator’s pre-pandemic duties had not diminished and, to the contrary, the volume of work increased during the pandemic. Additional resources and support in performing the role, in light of the increased volume, was given to the Applicant in her role for a time. However, the evidence is that the Applicant retained oversight of those additional resources and indeed they were removed as of 17 July 2020. The evidence does not, in my view, establish a restructure of the “collection” or “bundle of duties” comprising the position or redistribution of sufficient of those duties to constitute a finding of redundancy.
Finally, as earlier referenced, the Applicant did not ask the Court to find relevant context as to the meaning of “redundancy” or “redundant” on the face of the 2016 Enterprise Agreement, the Policy or the statute. The Hospital strongly urged the Court to decline from embarking on an exercise of construction of the terms of those instruments where the Applicant did not plead or argue her case in this way. Given the above conclusion, it would appear that not much if anything turns on this - to have engaged the definition in the 2016 Enterprise Agreement, the Policy or the Act, the Applicant was required to establish that her job was no longer required to be performed by anyone as but one limb of the threshold or test in each case. Beyond the incorporation of the 2016 Enterprise Agreement, there was no additional entitlement to redundancy in the 2013 Contract.
Was the Applicant entitled to redundancy pay?
In light of the above conclusion that the Applicant’s role was not “redundant” as claimed - whether on at, on or around 21 July 2020 or 25 February 2021 - no entitlement to redundancy pay arises as claimed.
For completeness, the question of “damages” does not arise in this context. The redundancy claim cannot properly be described as having alleged breach of contract but, even if it were or such amendment were allowed, the result is the same given the contract incorporated the 2016 Enterprise Agreement and did not otherwise provide a separate redundancy entitlement.
THE REPUDIATION CLAIM
The pleadings
The Applicant’s alternate claim was that the Hospital had repudiated the contract of employment, ie. engaged in a material breach of an essential term of the employment agreement by failing to reinstate the Applicant to the position of NWU Coordinator as set out in her employment contract.
The statement of claim included the following (summary of cross references to earlier pleadings and defined terms inserted in italics below for ease of understanding):
In the statement of claim, from [22]-[25] the Applicant pleaded that:
22.By reason of the matters pleaded in paragraph 18 [20 July 2020 meeting attended by Applicant, Mr Garcia and Ms Kelly], the Respondent breached the Position Term [the contracted position of NWU Coordinator] by failing to reinstate the Applicant to her original position as shown by the Premature Replacement [election of another employee as replacement].
Particulars
The Applicant has worked at the Hospital for 32 years and was a successful NWU Coordinator for over seven years. As such, the proposed redeployment to either the COVID-19 hotline or in infection control tracing as per the Direction to Step Down is a demotion far below the Applicant’s ability and experience.
23.By reason of the matters pleaded in paragraph 18, the unilateral alteration to the position term, as exemplified by Mr Garcia’s Direction to Step Down, amounts to a breach of the Position Term.
24.By reasons of the matter pleaded in paragraph 18(d), the Respondent’s action of appointing a Premature Replacement evinces an intention to (no) longer be bound by the position term, therefore breaching the Employment Agreement given that the position term is an essential term of the contract.
25.By reason of the matters pleaded in paragraph 18, the Respondent has breached the employment agreement by failing to adhere to the Position Term.
By matters pleaded in the statement of claim at [26], the Applicant claims she has suffered a resultant loss of $9,615.38.[96]
[96] Statement of Claim, at [26].
Particulars
The Applicant has suffered loss of $9,615.38 being her salary from 25 February 2021 to 6 April 2021 calculated as (Annual salary/52 weeks) x 5 weeks
In its defence, the Hospital denied any breach of the contract of employment and said that there was an implied term permitting it to rearrange its workforce in a time of a pandemic when there was a necessity in the operations to effect an interim change to the Applicant’s position.
The Hospital also defended the claim by saying that, even if the Court were to find the Hospital’s conduct was repudiatory of the contract on 20 July 2020, then the Applicant did not accept such repudiation contemporaneously. Rather, by her conduct in remaining employed and obtaining benefits under the contract and the 2016 Enterprise Agreement (including paid personal leave), she affirmed the contract until her resignation on 25 February 2021.
In the event the Court were to find there was a repudiation and acceptance of the repudiatory conduct, the Hospital’s defence was that the Applicant had failed to mitigate her loss and damage by refusing to take a like position with no loss of salary on an interim basis. If no failure to mitigate were found, the Hospital accepted the common law loss and damage was an amount of 5 weeks’ remuneration of $9,615.38 to be taxed according to law.
The respective contentions
In the alternative, the Applicant asked the Court to find that the Hospital had repudiated her contract of employment and, after her acceptance of the repudiation on 25 February 2021, she was entitled to 5 weeks’ notice pay pursuant to the 2016 Enterprise Agreement.
The Applicant contended that the Hospital engaged in a material breach of an essential term of the employment agreement when, in the meeting of 21 July 2020, it unilaterally and unequivocally removed her from and failed to reinstate her to the position of NWU Coordinator in what was defined as the Position Term, being an essential term of the contract on which the responsibilities, duties and remuneration were dependent. Further, that the offered alternative positions – which she did not accept - were a clear demotion and failure to offer the Applicant an alternative position which was equivalent in status and responsibility. As I understood it, it was also contended that the Hospital failed to comply with its implied duty to cooperate which also resulted in repudiation.
By reason of the alleged repudiation, the Applicant was not in a position to perform her obligations under the contract. And the Court should not find “acts of affirmation”, as the Hospital contended, in any of: the 5 months’ paid personal leave, because the repudiation made her sick and she had medical certificates in support; the further 9 weeks’ unpaid personal leave, for essentially the same reason; or the fact of the pre-dismissal general protections claim the Applicant lodged in the Fair Work Commission, because this was an indication of her continued protest as distinct from silence which might have indicated acceptance.
The Applicant also rejected the Hospital’s suggestion of the existence of an “implied term” in the case of a pandemic that operated as meaning due process could be dispensed with and the Applicant could be directed to perform different duties, albeit temporarily, for the same pay. In any event, the Applicant maintained that she was not advised this direction was temporary, the alternate roles were not commensurate with the NWU Coordinator role, her skills or experience; and it had not established that it was necessary to remove her from the NWU Coordinator role even in assisting the Hospital to respond to the health crisis that existed at the time.
As such, the Applicant accepted the Hospital’s repudiation on 25 February 2021, at which point the employment agreement was terminated.
The Applicant claimed she has suffered monetary loss owing to loss of income by reason of repudiation of the employment agreement by the Hospital in respect of the Position Term but admitted she had been able to mitigate her losses through securing alternative employment.
For its part, the Hospital contended it did not breach the contract because there was an implied term permitting it to rearrange its workforce in a time of pandemic. Given it was a time of the global pandemic, the Hospital contended there was a necessity to effect such an interim change to the Applicant’s position. The Applicant could not have been prevented from performance of the contract by the Hospital’s conduct given her certified illness on and from 22 July 2020 until 25 February 2021.
The Hospital also contended that the Applicant did not accept the repudiation contemporaneously, but rather, by her conduct of remaining employed and obtaining benefits under the contract (including paid personal leave), she affirmed the contract until her resignation on 25 February 2021.
The relevant principles
The relevant principles pertaining to the repudiation of contract are well settled. Both parties referred to the oft-cited case of Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 at [44], which provides that repudiation is:
..conduct which evinces an unwillingness or an inability to render substantial performance of the contract or conduct of one party is such as to convey to a reasonable person in the situation in the situation of the other party, renunciation of the contract as a whole or of a fundamental obligation under it.
In considering whether a contract has, in fact, been repudiated, all the circumstances of the case must be considered to determine whether the conduct alleged to be repudiatory “amounts to a renunciation, to an absolute refusal to perform the contract”: Shevill v Builders Licensing Board (1982) 149 CLR 602.
Parties may elect to accept or affirm the repudiation. If a party does elect to accept and terminate the contract, that election must be by clear and unequivocal words or conduct that evinces that election. Repudiation by a party does not of itself discharge the contract; discharge only takes place when the other party terminates the contract or accepts repudiation. To be effective the acceptance must be communicated, or otherwise made plain to the repudiating party, through either words or conduct, so that the party becomes aware that because of their wrongful action, the other party is treating the contract as at an end: Heymans v Darwins Ltd [1942] AC 356.
Consideration
The alternative claim was for breach of the employment agreement, earlier defined as the 2013 Contract. It was accepted that nothing in the 2013 Contract expressly permitted the transfer of the Applicant to another role. The Hospital’s repudiation of a fundamental term (the position term) was alleged to have caused the Applicant to suffer loss and damage.
Was the Applicant’s employment contract repudiated?
The 2013 Contract governed the employment relationship and continued to apply at the relevant times.
Although the pleadings referred to repudiation by reference to a “direction to step down” in the meeting of 20 July 2020, it was understood and the case was argued as though this was a reference to the 21 July 2020 meeting which was attended by the Applicant, Ms Kelly and Mr Garcia.
The key messages delivered in that meeting were mostly not in dispute. The Applicant was told that the Hospital had decided that she would not be performing the role of the NWU Coordinator for the duration of the pandemic. The Applicant was also told that she would be placed in another role, in any of three other areas of the Hospital. On the evidence, those roles were not apparently managerial or of middle-management. There was no suggestion her pay would change.
Mr Garcia was insistent in his evidence that he had advised the Applicant this was to be an interim transfer. The Hospital sought to place some reliance on his “contemporaneous” email to other employee relations or human resources advisors. However, on its face, that email may fairly be described as an internal update sent the following day rather than a record or minute of a discussion taken during or immediately after the 21 July 2020 meeting. Ms Kelly’s recollection was slightly different in that she recalled the use of the term “temporary”. She was not cross-examined about this but she did not produce any notes of the discussion.
That the Applicant did not have the impression that the transfer would be “interim” or “temporary” is perhaps understandable given the shock and anxiety she experienced during the course of that discussion and where the only written communication with the Applicant that followed that meeting was the calendar invitation for 23 July 2020 (which I accept the Applicant did not receive when it was sent, on 22 July 2020, as she was on personal leave and not able to access her Hospital emails).
I accept that Mr Garcia and Ms Kelly might have held the view or intention that the transfer was to be temporary. Certainly the parties had in the past agreed to a temporary secondment to another area of the Hospital and such proposal would have been consistent. Had the Applicant engaged with the proposed alternative roles there may have been some clarity as to what was meant by the evidence that the Applicant was told the placement was to be for the duration of the pandemic (a potentially long, and enduring, period). Without more, I do not consider the evidence to probatively establish that the Applicant misunderstood the finality of the decision to place her in another role.
Without determining the truth or otherwise of the Hospital’s alleged performance concerns, it may be accepted that all concerned were under enormous pressure and at least Ms Kelly perceived there to be some issues with the Applicant’s performance in the particularly strained operating environment. In this respect, some criticism may rightly fall with the Hospital for its handling of Ms Kelly’s concerns. However the Court is not asked to assess the fairness of the process.
Taking into account all of the circumstances of the case, and with regard to the factual findings made, it is strongly arguable that there was a repudiation. Specifically, by its decision to place the Applicant in one of the alternative proposed roles and its confirmation of that decision to the Applicant in the 21 July 2020 meeting, that the Hospital repudiated an essential term of the contract.
The Applicant did not accept the repudiation at or around 21 July 2020. The 18 February Letter, sent by the Applicant’s lawyers in 2021, included a reference that they were instructed to write to the Hospital putting them on notice of the alleged breach on 24 August 2020. There is no evidence that they did so either at that or at any other time prior to the 18 February Letter, and I find accordingly. This would at least tend to indicate that the Applicant was in a position to know of the alleged repudiation and make a decision as to whether to accept and terminate or affirm and continue the contract.
I accept that the Applicant initially indicated (in the meeting on 21 July 2020 and her email of the following day) that she did not accept the alternative roles and wanted time to consider her options. She did not formally raise a dispute until January 2021.
On the evidence, I find that the Applicant, by her various conduct, proceeded to affirm any repudiation. Over and covering the period 22 July to 24 December 2020, she submitted medical certificates to the Hospital in support of her personal leave claim which she then accepted payment for over a period of some 5 months until 24 December 2020. The entitlement to such paid personal leave arose under the contract of employment which incorporated the 2016 Enterprise Agreement. She continued to exercise rights under the contract governing the employment relationship by taking a further period of unpaid personal leave until her 25 February Letter. The fact of the “non-dismissal” general protections claim, lodged with and pursued in the Fair Work Commission pursuant to s.365 of the Act, is further evidence of conduct by the Applicant which continued to affirm the contract. In all, the Applicant’s affirmatory conduct extended for some 7 months for substantial part of which she accepted the financial benefit of payment pursuant to the contract.
I conclude that the Applicant’s employment only came to an end after she had exhausted her paid personal leave and exercised other rights arising in the course of employment. That is, her employment only came to an end when, on 25 February 2021, she purported to accept a repudiation that she had already affirmed. Having affirmed the contract by her conduct over a period of such length, that affirmation is irrevocable.
Accordingly, it is not necessary to determine whether the Hospital held an “implied” right to transfer as enlivened by the pandemic. There is no entitlement to notice pay in the form of damages as claimed.
For completeness, it is noted that the Applicant did not in this claim allege breach of the general protections provisions of the Act or any underpayment claim in relation to breaks and overtime.
CONCLUSION
For the above reasons, the application is dismissed.
I certify that the preceding one hundred and fifty-eight (158) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Dated: 17 August 2022
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