Stanislawa Bahonko v Moorfields Community

Case [2005] FCAFC 116

FEDERAL COURT OF AUSTRALIA

Stanislawa Bahonko v Moorfields Community & Anor [2005] FCAFC 116

INDUSTRIAL LAW – no error disclosed – appeal dismissed ‑ costs order made

Workplace Relations Act 1996 (Cth) ss 170CP, s 170CK (a), (e) and (f), s 170CS(1)(a)
Accident Compensation Act 1985 (Vic)

Jennings v Salvation Army (2003) 128 IR 366, referred to

Zhang v The Royal Australian Chemical Institute Inc [2004] FCA 1392, referred to

Zhang v The Royal Australian Chemical Institute Inc [2005] FCAFC 99, referred to

Warren v Coombes (1979) 142 CLR 531, applied
Spotless Services Australia Ltd v Marsh [2004] FCAFC 155, followed

STANISLAWA BAHONKO v MOORFIELDS COMMUNITY (AN AGENCY OF THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (VICTORIA)) and BODALLA AGED CARE SERVICES

VID 94 OF 2005

MARSHALL, GOLDBERG AND KENNY JJ
15 JUNE 2005
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 94 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE COURT

BETWEEN:

STANISLAWA BAHONKO
APPELLANT

AND:

MOORFIELDS COMMUNITY (AN AGENCY OF THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (VICTORIA))
FIRST RESPONDENT

BODALLA AGED CARE SERVICES
SECOND RESPONDENT

JUDGES:

MARSHALL, GOLDBERG & KENNY JJ

DATE OF ORDER:

15 JUNE 2005

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondents’ costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 94 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE COURT

BETWEEN:

STANISLAWA BAHONKO
APPELLANT

AND:

MOORFIELDS COMMUNITY (AN AGENCY OF THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (VICTORIA))
FIRST RESPONDENT

BODALLA AGED CARE SERVICES
SECOND RESPONDENT

JUDGES:

MARSHALL, GOLDBERG AND KENNY JJ

DATE:

15 JUNE 2005

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

THE COURT

  1. On 4 February 2005 a Judge of the Court dismissed an application by the appellant, Miss Bahonko, made, inter alia, under s 170CP of the Workplace Relations Act 1996 (Cth) (“the Act”). For the reasons set out below we consider that the appeal should be dismissed.

    Factual background

  2. Miss Bahonko was formerly employed by the first respondent (“Moorfields”) and the second respondent (“Bodalla”) as a registered nurse.  Moorfields terminated her employment on 10 May 2004.  Bodalla terminated her employment on 24 May 2004. Moorfields relied on Miss Bahonko’s alleged misconduct to justify its termination of her employment. Bodalla considered that Miss Bahonko had abandoned her employment.

  3. Miss Bahonko claimed before the primary Judge that the respondents had terminated her employment in breach of s 170CK (2)(a), (e) and (f) of the Act.

  4. Between 4 September 2003 and 6 May 2004, there were some incidents involving Moorfields and Miss Bahonko concerning her “interactions with some of her co-workers, as well as with some of her patients and their families”: see [19] of the primary Judge’s reasons.  These matters are referred to by the primary Judge at [19] to [26] of his reasons for judgment.

  5. On 6 May 2004 a dispute…

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AGLC
Stanislawa Bahonko v Moorfields Community [2005] FCAFC 116
Case
[2005] FCAFC 116
Decision Date

CaseChat Overview and Summary

Stanislawa Bahonko appealed against a decision of a judge of the Federal Court of Australia, who dismissed her application for unfair dismissal brought under the Workplace Relations Act 1996. Bahonko had been employed by Moorfields Community as a registered nurse before her employment was terminated by Moorfields and a subsequent employer, Bodalla, on separate occasions. Bahonko claimed that her dismissals were in breach of s 170CK of the Act. The primary judge rejected Bahonko's claims and dismissed her application. The appeal raised several issues, including whether the primary judge erred by not considering Bahonko's post-hearing written submissions, whether Bahonko was disadvantaged by giving evidence before the respondents, and whether the primary judge was biased in accepting the respondents' evidence. Bahonko also argued that the primary judge erred in rejecting her claims of victimisation, defamation, and assault. The court found that the primary judge had considered Bahonko's post-hearing submissions, there was no basis for the claim of disadvantage, and no evidence of bias. The court also found that the primary judge's findings of fact were made on admissible evidence and that there was no tenable basis for a claim of bias. The appeal was dismissed, and Bahonko was ordered to pay the respondents' costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondents’ costs of the appeal.

Background

Background to the litigation

On 4 February 2005 a Judge of the Court dismissed an application by the appellant, Miss Bahonko, made, inter alia, under s 170CP of the Workplace Relations Act 1996 (Cth) (“the Act”). For the reasons set out below we consider that the appeal should be dismissed.Factual background Miss Bahonko was formerly employed by the first respondent (“Moorfields”) and the second respondent (“Bodalla”) as a registered nurse. Moorfields terminated her employment on 10 May 2004. Bodalla terminated her employment on 24 May 2004. Moorfields relied on Miss Bahonko’s alleged misconduct to justify its termination of her employment. Bodalla considered that Miss Bahonko had abandoned her employment. Miss Bahonko claimed before the primary Judge that the respondents had terminated her employment in breach of s 170CK (2)(a), (e) and (f) of the Act. Between 4 September 2003 and 6 May 2004, there were some incidents involving Moorfields and Miss Bahonko concerning her “interactions with some of her co-workers, as well as with some of her patients and their families”: see [19] of the primary Judge’s reasons. These matters are referred to by the primary Judge at [19] to [26] of his reasons for judgment. On 6 May 2004 a dispute arose between Miss Bahonko and Mrs Riley (Moorfield’s Director of Nursing) concerning the manner of the preparation and administration of medication for patients. The events leading up to Miss Bahonko’s removal from her workplace by the police are set out at [27] to [32] of the primary Judge’s reasons. We shall not repeat them. Suffice to say, Miss Bahonko refused to obey a lawful command made by Mrs Riley regarding the preparation and administration of medication, refused to hand over the keys to the medication trolley and was removed from Moorfields’ premises by the police. By letter dated 10 May 2004 from the Chief Executive Officer of Moorfields, Mrs Turnbull, Miss Bahonko was advised that her employment was terminated summarily for misconduct. The letter stated that Miss Bahonko would receive payment in lieu of notice and all her other monetary entitlements.The reasoning of the primary judge The primary Judge rejected (at [38]) Miss Bahonko’s contention that her employment was terminated by Moorfields, in part, because she filed a complaint against it alleging that it had violated laws and regulations, contrary to s 170CK(2)(e) of the Act. Miss Bahonko claimed that she made complaints about Moorfields to authorities, including:· the Equal Opportunity Commission;· the Human Rights and Equal Opportunity Commission;· the Ombudsman;· the Victoria Police Ethical Standards Unit;· the Aged Care Complaint Agency;· Job Watch; and· the Workcover Authority. His Honour held (at [35]) that Miss Bahonko’s workcover claims were not a reason for her termination by either respondent. He also referred to authority which stated that making a claim under the Accident Compensation Act 1985 (Vic) was not comprehended by s 170CK(2)(e); see Jennings v Salvation Army (2003) 128 IR 366 and Zhang v The Royal Australian Chemical Institute Inc [2004] FCA 1392. See now, on appeal, Zhang v The Royal Australian Chemical Institute Inc [2005] FCAFC 99 at [34] per Lander J, with whom Spender and Kenny JJ agreed.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MARSHALL, GOLDBERG AND KENNY JJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MARSHALL, GOLDBERG AND KENNY JJ

Miss Bahonko represented herself on appeal. consideration In written submissions, Miss Bahonko contended that the primary judge erred by not having regard to her post‑hearing written submissions filed at his direction. It is apparent from his Honour’s specific reference in his reasons (at [14]) to the appellant’s submissions that this contention is misconceived. The basis of the appellant’s complaint appears to stem from his Honour’s observation (at [15]) that:“I would add that the applicant’s responding submissions sought to impermissibly re-open evidentiary issues. The evidence upon which these reasons are based is the relevant and admissible evidence adduced at the hearing.”The purpose of post-hearing written submissions is the making of submissions in the context of the evidence adduced in the oral hearing. It is not an opportunity to add new evidence. There is no substance in this point on the appeal. Miss Bahonko also submitted that she was disadvantaged in the conduct of the trial by having to give her evidence before the respondents gave their evidence. Under O 32 r 4(3), in a case of this kind, it is usual for the initiating party to present evidence before the evidence of the responding party or parties. There is no substance in this submission. Miss Bahonko also criticised his Honour’s judgment because it was certified by his Associate. That is standard practice in the Court; and it does not imply that the judgment was anything but a judgment of the primary judge. In written and oral submissions, Miss Bahonko submitted that the totality of the judgment of the primary Judge was wrong; and that, in his acceptance of the respondents’ evidence, he was biased against her. She contended that the primary Judge had erred in finding (at [38]) that Moorfield’s reasons for terminating her employment “were premised upon its view that the applicant was a difficult employee who had breached its medication protocol”. This was because, first, the respondents’ witnesses had perjured themselves, and, secondly, his Honour had noted at the trial that breach of the medication protocol was not serious enough to warrant dismissal. Miss Bahonko also submitted that his Honour erred in failing to accept her claim, based on s 170CK(2)(e), that she was dismissed because of the complaints she made to a number of agencies about her employers. She contended that his Honour erred in rejecting her claims that she was victimised because of her religious beliefs. She submitted that his Honour was wrong not to find that Bodalla was motivated to seek her dismissal on the basis of her absence because of illness or injury. Miss Bahonko also maintained that his Honour failed to consider properly her claims in relation to defamation and assault. There is nothing before this Court to indicate that it was not open to his Honour to accept the evidence of the respondents’ witnesses in preference to that of Miss Bahonko. His Honour’s findings of fact were made on admissible evidence. There has been no relevant error shown in the inferences of fact that were drawn by his Honour: compare Warren v Coombes (1979) 142 CLR 531 at 552. In making the challenged findings against Miss Bahonko, there is no tenable basis for a claim of bias.