Stanley v Father Michael Court
[2014] FCCA 156
•14 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| STANLEY v FATHER MICHAEL COURT | [2014] FCCA 156 |
| Catchwords: INDUSTRIAL LAW – Enterprise agreement – interpretation of Catholic Archdiocese of Sydney Aged Care and NSWNA/ANF Enterprise Agreement 2011 to 2013 – where employer sought to introduce new management plan – where employees’ roles and titles would change under the new management system – where employees given draft documents about the roles and offers of employment – where individual meetings were proposed to discuss changes – where employees’ sought to have a group meeting but this was refused – where employee refused to attend separate meeting individually – where employees indicated that they would seek union’s advice - where employee’s employment terminated on day of refusal to attend individual meeting – where enterprise agreement included dispute resolution and consultation and introduction of change clauses – whether changes to management structure “major change” to organisation and structure – whether clauses of enterprise agreement engaged by the proposed changes to management structure – whether new agreement contained termination provisions less advantages than existing enterprise agreement – whether there was no obligation to hold group meetings – whether it was unreasonable to seek individual meetings – whether nurses entitled to request representative to attend meetings – whether employees evinced intention to be represented at meetings –whether employee’s employment terminated for exercise of workplace right in contravention of s.340(1)(a) of the Fair Work Act 2009 (Cth) – whether a dispute arose for the purposes of the enterprise agreement – whether dispute resolution procedures need be invoked by employee – whether employer prevented employee from exercising a workplace right to consultation and dispute resolution in contravention of s.340(1)(b) of the Fair Work Act 2009 (Cth) – whether employer applied coercion and undue influence – whether employer knowingly or recklessly made a false or misleading misrepresentation about a workplace right. |
| Legislation: Fair Work Act 2009, ss.340(1)(b), 341(1)(b), 342(1), 343, 360, 361, 545(2)(b), 570 |
| City of Wanneroo v Holmes (1989) 30 IR 362 Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 |
| Applicant: | JENNIFER STANLEY |
| Respondent: | FATHER MICHAEL COURT |
| File Number: | SYG 445 of 2013 |
| Judgment of: | Judge Raphael |
| Hearing dates: | 11, 12 December 2013 |
| Date of Last Submission: | 12 December 2013 |
| Delivered at: | Sydney |
| Delivered on: | 14 February 2014 |
REPRESENTATION
| Solicitors for the Applicant: | David Mendelssohn |
| Counsel for the Respondent: | Mr J Darams |
| Solicitors for the Respondent: | Corrs Chambers Westgarth |
THE COURT DECLARES THAT:
The Respondent contravened the Applicant’s workplace rights under s.340(1)(b) of the Fair Work Act 2009 (Cth) by preventing the Applicant from exercising her right to dispute resolution as defined under Clause 36.1 of the Catholic Archdiocese of Sydney Aged Care and NSWNA/ANF Enterprise Agreement 2011 to 2013 (the “Enterprise Agreement”)
The Respondent contravened the Applicant’s workplace rights under s.340(1)(a)(iii) of the Fair Work Act 2009 (Cth) by terminating the Applicant’s employment for serious and gross misconduct for proposing to exercise her workplace rights under s.40.1 of the Enterprise Agreement.
THE COURT ORDERS THAT:
The Respondent’s liabilities for penalties for the contraventions referred to in the declarations above be determined by the Court.
The Applicant file and serve her written submissions upon penalty within fourteen days of these orders.
The Respondent file and serve his submissions as to penalties within fourteen days thereafter.
The respondent shall write to Centrelink informing it that the separation details in its notification of 14 January 2013 are incorrect and that the correct details are that Ms Stanley was unlawfully dismissed by her employer in breach of provisions of the Act.
The respondent shall write to Ms Stanley providing her with a copy of the letter written to Centrelink and acknowledging the Court’s decision that she had been unlawfully dismissed.
The respondent shall provide Ms Stanley with a reference based upon her duties as the Deputy Director of Nursing at the John Paul Village without reference to the circumstances in which she was dismissed but acknowledging that she was dismissed unlawfully.
The respondent shall provide, at his expense, for a period of three months, counselling for Ms Stanley and professional assistance to enable her to obtain employment at the level she was upon when she was unlawfully dismissed.
Pursuant to s.545 of the Fair Work Act 2009 the respondent pay the applicant the sum of $10,000.00 in damages arising out of the dismissal.
The respondent pay the applicant the sum of $784.59 interest.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 445 of 2013
| MS JENNIFER STANLEY |
Applicant
And
| FATHER MICHAEL COURT |
Respondent
REASONS FOR JUDGMENT
Ms Jennifer Stanley was the Deputy Director of Nursing at the John Paul Village Heathcote New South Wales. She had commenced working at the John Paul Village on 23 February 2005. Her employment ceased on 20 December 2012. The John Paul Village is an aged care establishment associated with the Catholic Church. It was party to an enterprise agreement known as the Catholic Archdiocese of Sydney Aged Care and NSWNA/ANF Enterprise Agreement 2011 to 2013 approved by Commissioner McKenna on 30 March 2011. Although, after considerable interlocutory process the parties agreed that the actual employer of Ms Stanley was the local parish priest Father Michael Court, it was accepted that the Enterprise Agreement governed the employment relationship between John Paul Village and the applicant.
During the course of 2012 the management of the home became concerned about the level of funding and employed consultants who reported on ways in which the running of the home could be improved. This found expression in a new management plan that was put to senior staff including Ms Stanley at what was described as a “future directions” meeting on 17 October 2012. The plan proposed changes to the roles of the Deputy Director of Nursing and Assistant Director of Nursing who would be classed as care managers. Care managers would have direct control over two wards each rather than being part of a hierarchical structure over the whole facility. A third member of the nurse management team, Ms Gibbs, would have control over the hostel. Ms Stanley deposes that whilst the nurse management team – herself, Ms Franzen and Ms Gibbs – was supportive of the proposals because they believed the flatter management system would relieve them of the excessive hours of work they had been undertaking, they did not hear more on the subject from senior management until December 2012.
On 13 December 2012 a quality management meeting was held. Ms Stanley was invited but sent her apologies. The minutes of the meeting do not reveal any discussion about the new directions proposal but Ms Clare Fortuin, the HR Manager, deposes:
“[23] At the meeting, Mr Renouf said words to the following effect:
“We obtained advice from an external nursing consultant, Donna May. We will roll out the restructure based on her advice. There has been some delay in the implementation of the process because KPIs are being drawn up and they need to be correct going forward.”
[24] At this meeting, Mr Renouf also said words to the following effect:
“The restructure will include a change in titles. The titles Deputy Director of Nursing, Assistant Director of Nursing and Hostel Supervisor will be replaced with “Care Manager.” We will have meetings with Donna, Mieke and Jenny next Monday to discuss individual changes. There will also be some office changes. Mieke will move to an office upstairs to the West Nurse’s station and Jenny will move to Mieke’s office so she is closer to the south wing.”
Ms Gibbs did attend the meeting and she gave evidence in the proceedings. She did not dispute the evidence of Ms Fortuin in her affidavit and it must be accepted.
On 14 December 2012 Ms Fortuin, Mr Renouf, the Chief Executive and a Ms McMahon held a group meeting with the senior nurses. At that meeting a letter was handed to Ms Stanley. This letter reads:
“Dear Jennifer
Re: Position of Care Manager – North & South Wings
Further to our previous discussions regarding the planned restructure of the Nursing Management Tea, this is to advise you are offered the position of Care Manager – North and South Wings. As a result of the restructure, effective Monday 17 December 2012, the position of Deputy Director of Nursing will cease to exist. The position of Care Manager – North and South wings is an equally comparable position in terms of status and remuneration.
A meeting will be held on the afternoon of Monday 17 December 2012 where you will be provided with your Letter of Appointment, Position Description and Key Performance Indicators. The Position Description and Key Performance Indicators will be provided to you in draft form and we welcome your feedback by the 29 January 2013 at which time we will be finalising them.
It is understood there will be a transitional period during which you will transfer offices and initiate reallocation of the administrative duties you were performing in the role of Deputy Director Nursing. The transitional period will commence from Monday 17 December 2012 when you will offices and the reallocation of administrative duties will commence from 17 December 2012 and will be completed on or before the 29 January 2013.
This change represents the first stage of the Nursing restructure. It is expected that you will fully participate in all stages of the restructuring process. This will include but is not limited to resource planning and the establishment of your team whilst ensuring the highest quality of resident care delivery.
We thank you for your support and we look forward to working with you throughout the implementation process and ensuring continual delivery of the highest standard of care to our residents/
Yours sincerely
Gerry Renouf
Chief Executive Officer”Ms Stanley was also handed two other documents. The first was a letter of offer of employment as a care manager/north and south wings. The second was a position specification and description for that employment position. It included what are known as KPIs or “key performance indicators”. Ms Fortuin, in her affidavit, states that those latter two documents were “drafts” and she says that Mr Renouf said words to the effect of:
“You each have a draft position descriptions and KPIs for your new roles. We will have individual meetings with each of you later today to discuss the draft documents.”
Ms Stanley deposes in her affidavit:
“[9]On Friday, 14 December, 2012, Mr Renouf requested a meeting with Mieke, Donna and myself but this was later rescheduled to Monday, 17 December at 10 am. At that meeting, were provided with three documents: the first being a letter notifying us of the planned restructure that was to take place on the same day (This document is annexed as “Annexure B”). I was told that my position of Deputy Director of Nursing had ceased to exist and I was offered the position of Care Manager. I was also told to vacate my office and relocate to another office within 3 days. The second, was the proposed new contract of employment that intend to change the position titles to Care Manager (this document is annexed as “Annexure C”). Also, under heading “remuneration” the new contact appeared to replace the termination of employment terms of the Enterprise Agreement with those of the National Employment Standards. The third, was the introduction of a Key Performance Indicator (“KPI”) matrix against which my job performance would be measured (this document is annexed as “Annexure D”).
[10]These documents were handed to us to consider and we were told to come back that afternoon. Later that day, the executive management team (Gerry Renouf, Clare Fortuin and Judy McMahon) told us they would have meetings with us individually to discuss the KPI’s. Effectively this meant three of them and only one of us.”
There was a meeting on 17 December between the three senior managers and Ms Stanley. Ms Fortuin deposes that again Ms Stanley was told that the documents were drafts and that she could take a few days to look through them and come back with her feedback. Another appointment to discuss the feedback was proposed for the Thursday. Ms Fortuin exhibits her handwritten minutes of the meeting which confirm her statement that Ms Stanley considered the restructure to be a good thing.
Between 17 and 20 December the three senior nurses got together to look at the documents. They felt that as the KPIs appeared identical for each of them a group meeting should be held to discuss this rather than the three on one meetings proposed by the management team. Ms Stanley asked Mr Renouf for a group meeting to discuss the KPIs. She deposes that Mr Renouf refused but would not give a reason. Ms Stanley discuss this with her colleagues and they determined to see Ms Fortuin. She saw her on 19 December and asked Ms Fortuin to ask Mr Renouf for a group meeting. Ms Fortuin responded by email which is in the following form:
“Hi Donna, Jenny & Mieke
I spoke with Gerry and we will be proceeding with individual meetings where Letters of Appointment, Position Descriptions and KPI’s will be discussed, as previously arranged.
We welcome your feedback through the consultation process.
Regards
Clare Fortuin”
The senior nurses responded with their own email:
“Hi Clare,
We are very disappointed our request is once again not accepted by Gerry. Particularly since you also see the merits of a combined meeting.
As discussed, we at JPV pride ourselves in working as a close team and since virtually all KPIs are the same, we strongly believe that feedback on the KPIs should be addressed as a team.
To avoid the need for us to seek 3rd party intervention, we ask you to again seek agreement from Gerry to meet as a team.
We’d appreciate you giving this your highest priority.
Thanks again,
Mieke, Jenny and Donna”
Because of their concern about the process Ms Stanley rang the New South Wales Nurses and Midwives Association and spoke to a representative called “George”. He told Ms Stanley that he believed that the employer was in breach of Clause 40.1 of the Enterprise Agreement. Ms Franzen also took advice from her brother in law, an experienced industrial relations practitioner and he told her he believed the procedures being followed were in breach of the terms of Clause 40.1. Ms Fortuin deposes to the fact that she considered the request for a group meeting in the context of Clause 40.1 and came to the view that it was not required. She also came to the view that the proposed restructure did not constitute a major workplace change in respect of which Clause 40.1 became operative.
What transpired on 20 December was deposed to by Ms Fortuin:
“[46]On 20 December 2012 at about 10.00a.m., Ms Gibbs, Ms Franzen and Ms Stanley all turned up to what had been scheduled as Ms Gibbs’ individual meeting, Mr Renouf came into the room. He said words to the effect of:
“It is necessary to have individual consultations to discuss individual contracts and position descriptions and KPIs. It is not appropriate to discuss these as a group because they pertain to individuals. We are not finalising any change until the 29th of January.”
[47] Following this, I said words to the effect of:
“There will be another group meeting to discuss the transitional procedures, staffing and resident care prior to 29 January. We only want to meet individually to discuss individual letters of appointment, position descriptions and KPIs. We will have another group meeting later on to talk about all transitional procedures and how the logistics are going to be worked out in terms of staffing for each wing.”
[48]During this meeting, the nurses referred me to clause 40.1 of the Enterprise Agreement. I was aware of this clause because of the matters referred to in paragraph 44 above. I read clause 40.1 of the Enterprise Agreement aloud and said words to the effect of:
“I have received advice and I am of the opinion that the Proposed Restructure is not major workplace change which is likely to have significant effects on you because it only involves a reorganisation of work and a title change and in any case, we are consulting with you before we implement the change.”
[49]Ms Stanley argued that what we are doing is major workplace and I repeated what I said at paragraph 48 above and then Ms Stanley, Ms Franzen and Ms Gibbs each said words to the effect of:
“We are not going to meet individually.”
[50]Following this, Mr Renouf closed his folder and the nurses walked out of the room.”
In Ms Franzen’s affidavit she notes about Mr Renouf’s behaviour:
“His response is to slam his folder on the table and say words to the effect of “I will not meet with you as a group”. He also said words to the effect of: “You should learn to stand on your own two feet.”
Ms Franzen attaches to her affidavit the notes of that meeting upon which she was not cross examined:
“Jen introduced the meeting that she had contacted the union about our concerns of not being consulted about the major changes. George (Union) had said we entitled to representation under clause 40.1 which Jen read out. Care manager not in our Enterprise Agreement hence not covered. Gerry said that this was just a restructure not a major change. It is a reasonable requested from the CEO to meet individually with everyone. Clare said they had had advice too about Clause 40.1 from ACS and that there was no major change which then remains arguable. Gerry said it is no longer management by committee as it was when we were a cottage industry and asked “What are you so afraid of” I mentioned we just felt we were not included and that everything was so cloak & dagger. Gerry said it was time we stood on our own two feet.”
Clare said the process is to meet in a sequential order. Initially as individuals it is a transitional process. We said again that we understand the individual parts about remuneration etc and that we have no problem with that and that we are ok with us all having different pays etc. Gerry again said he was not interested in meeting us as a team and would seek further advice and would talk to the Chairman of the Advisory Committee.”
Following the meeting Ms Franzen sent an email to Mr Renouf:
“Gerry
We refer to the email below and express our disappointment in not having received a response.
However, our concerns are now even more accentuated at the refusal of meeting with us as a group at Donna’s designated meeting time of 10am this morning.
Your insistence on meeting with us individually with the CEO, HR Manager and Director of Nursing present (virtually one against three), is in our view not a consultative process but intimidating.
As discussed this morning when we asked to speak to you, due the unwillingness of senior management to consult with us, we have found it necessary to seek independent and union advice. This advice has indicated that we subject to the terms and conditions as specified under the Enterprise Agreement. We strongly disagree with your interpretation of Clause 40.1 that the restructure at JPV and associated change of position titles does not constitute a ‘major change’. The position of Care Manager is not covered within our Enterprise Agreement, hence we feel this major change warrants you to give ‘consideration to matters raised by the employees and/or their workplace representatives.
We would like to stress that we are supportive of change in the workplace but believe this must be enacted in a consultative manner to achieve the optimum outcome for both the employer and employee. Your vision of breaking up John Paul Village in 3 separate entities differs completely from our understanding of a ‘one facility’.
We will advise you as soon as a representative has been nominated on our behalf. We understand you too will be seeking further advice.
We would also like to highlight that in our appointment letters you indicated that our positions take effect as from the 17 December 2012. We do not accept this date of effect and again reserve our options until such time we receive advice from our bargaining representative. Meanwhile, we recommend any changes associated with the proposed restructure not proceed until our concerns are resolved to our mutual satisfaction.
Jenny, Donna and Mieke”
Following the sending of this email Ms Fortuin and Mr Renouf went into Ms Stanley’s office. Mr Renouf handed Ms Stanley a letter:
“Dear Jennifer
Re Requirement to attend consultation meeting
Given that the individual consultation meeting previously arranged with you at 10.00am this morning did not take place as a result of your refusal to attend individually, you are not required to attend the meeting immediately this afternoon on an individual basis.
As previously advised, the purpose of the meeting is to give you the opportunity to provide feedback in relation to the Nursing Restructure and the position of Care Manager – North and South Wings. The agenda for the meeting is:
·Individual Letter of Appointment
·Position Description
·Key Performance Indicators
We look forward to continuing consultation with you to achieve the highest standard of resident care delivery.
Yours sincerely
Gerry Renouf”Ms Fortuin deposes:
“[52]In the afternoon of 20 December 2012, Mr Renouf and I went to Ms Stanley’s office. Mr Renouf handed Ms Stanley a letter requesting her to attend an individual meeting that afternoon. A copy of the letter is annexed to Ms Stanley’s affidavit of 17 May 2013 and marked Annexure F. Mr Renouf and Ms Stanley had a conversation to the following effect:
Mr Renouf:“You are required to attend an individual meeting this afternoon. You do not need to sign anything, we just want your feedback.”
Ms Stanley: “Has anything changed since this morning?”
Mr Renouf: “No. Are you refusing to attend the meeting?
Ms Stanley: Yes, I am refusing to attend.”
[53]Following this, Mr Renouf handed Ms Stanley a second letter, terminating her employing and said words to the effect of:
“Your employment is terminated for failing to follow a lawful and reasonable instruction.”
Ms Stanley’s version of this meeting is contained in her affidavit:
“[17]At about 2.30 that same day, Thursday, 20 December 2012, Mr Renouf and Ms Fortuin asked to speak to me. They gave me a letter (this document is annexed as “Annexure F”) requiring my attendance at a meeting with the Executive Management Team by myself. I said words to the effect of: “That I found his manner very intimidating, that I had advice not to sign anything. I also asked was there anything different to be discussed from this morning’s meeting?” Mr Renouf said: “No.”
[18]I then said: “Well, I’m not going.” Mr Renouf then reached from behind him and handed me a letter with a smile terminating my employment. (this document is annexed as “Annexure G”). It said I was terminated for refusing to comply with a reasonable and law instruction on two occasions and this was considered “serious and gross” misconduct. I was told not to touch my computer, but gather my belongings and leave.”
The letter of dismissal is in the following form:
“Dear Jennifer
Re: Termination of employment
This is to advise your employment is being terminated with immediate effect. The reason for your employment being terminated is your failure to comply with reasonable and lawful instructions by The Chief Executive Officer of John Paul Village on two occasions. The reasonable and lawful instruction was to attend an individual consultation meeting with members of the Executive Management Team regarding the nursing restructure. This is considered serious and gross misconduct. As a result, you are not entitled to any pay in lieu of notice.
Cooperation by members of the nursing management team is essential for successful implementation of the restructure and consultation is an integral part of this process. As you will understand, resident care delivery is the highest priority for John Paul Village.”
Mr Renouf also gave evidence. His account of the conversations is a little different from those already set out. His account of the final meeting with Ms Stanley is set out in [63] of his affidavit:
“[63]Ms Fortuin and I went to Ms Stanley’s office and I gave her a letter directing her to attend an individual meeting later that day. A copy of that letter is annexed to the Affidavit of Ms Stanley sworn 17 May 2013 and marked Annexure F. After I handed her the letter, a conversation took place to the following effect:
Me:“I would like you to come to a meeting.”
Ms Stanley:“Well what has changed since this morning?”
Me:“Nothing, I just want to have a chat with you.”
Ms Stanley:“No, I am not going to any meeting with you.”
Me:“Well I am going to have to terminate your employment then. Here is the letter.”
The weight of the evidence from Ms Stanley and her colleagues, which was not challenged in cross examination, was that Mr Renouf’s tone in these meetings was not as conciliatory as he appears to make out. A close reading of his own affidavit gives support to this view. He believed that the actions of the senior nurses were challenges to his authority. He states this at [62]:
“[62]Following the meeting with the nurses on 20 December 2012, I contacted the Chairman of the Advisory Committee, Mr Kevin Gurney and said words to the following effect:
“I have had a challenge to my authority by the senior nurses, led by Jenny Stanley. I am going to request that Jenny attends a meeting again for general discussion. If she refuses I am going to terminate her employment. Mr Gurney then said words to the following effect:
“I will keep Father Court apprised of the matter. Please keep me updated.”
In regard to what occurred at the various meetings the Court prefers the evidence of Ms Stanley and Ms Franzen and Ms Fortuin to that of Mr Renouf.
At [65] of his affidavit Mr Renouf gives his reasons for terminating Ms Stanley’s employment. He was not cross examined upon them:
“[65]The decision to terminate Ms Stanley’s employment was one that I made alone, however I informed the Chair of the Advisory Committee of my decision, who in turn informed Father Court. I terminated Ms Stanley’s employment because she had disobeyed my direction to attend a meeting with me individually. I had asked Ms Stanley to meet with me on an individual basis. I had already rejected the senior nursing staff’s request to meet as a group. I also viewed Ms Stanley’s conduct as failing to accept my authority within John Paul Village. I decided to terminate Ms Stanley’s employment rather than the employment of Ms Gibbs or Ms Franzen because Ms Stanley was the most senior nurse and the one I believed was the most disruptive to the operation of the residential facility. This belief came from my experience with Ms Stanley and the senior nursing staff. I had observed that Ms Stanley usually took the lead in meetings and opened discussions. Ms Stanley’s repeated failure to follow my direction for her to meet with me individually was indicative of her disruptive influence and so I terminated her employment. Ms Stanley had not refused to meet with me, as she did, in the meeting referred to in paragraph 63 above, I would not have terminated her employment.”
Mr Renouf denied terminating Ms Stanley’s employment because Ms Franzen indicated that senior nursing staff would be seeking union advice in her email of 20 December 2013. Whilst the Court was not asked specifically to draw inferences from paragraph 65 of Mr Renouf’s affidavit the whole tenor of the case against the respondent was that Ms Stanley was dismissed for exercising a workplace right. It is the Court’s view that these paragraphs can be looked at to consider that matter once it has come to a conclusion as to whether the right that Ms Stanley sought to assert was a workplace right at all.
The way in which Ms Stanley articulates her claims against the respondent are set out in Part G of her claim filed in Form 2 of 7 March 2013. There are ten paragraphs to this part. They are split between alleged contraventions of s.340(1) and s.341, 342, 343, 344 and 345. As it will be necessary to deal with each of the allegations they are set out below:
“1.The terms of the Applicant’s employment are determined by the Catholic Archdiocese of Sydney of Sydney Aged Care and NSWNA/ANF Enterprise Agreement 2011-2013 (Enterprise Agreement).
2.The Respondent contravened the Applicant’s Workplace Rights under section 340(1)(b) by the Respondent preventing the applicant from exercising her workplace rights to consultation and dispute resolution as defined under clauses 40.1 and 36.1 (as amended in the undertakings) of the Enterprise Agreement. (See Annexure 3 with email trail requesting group consultation).
3.The Respondent further contravened the applicants Workplace Rights under section 340(1)(b), 343 and 344 by the Respondent applying coercion and undue influence in seeking to force a new employment agreement which would in effect remove the Applicant’s rights and benefits as provided for under the Enterprise Agreement. (see Annexure 1 proposed new employment agreement).
4.The Respondent contravened the Applicants Workplace Rights under section 340(1)(a)(iii) by the Respondent terminating the Applicant for serious and gross misconduct for exercising her workplace rights under section 40.1 and 36.1 as specified in the Enterprise Agreement. (see letter of termination Annexure 5).
5.The Respondent contravened the Applicant’s Workplace rights under section 341(1)(a) by denying the Applicant the benefits entitled under the Enterprise agreement. In effect the Respondent was removing the Enterprise Agreement as the primary terms of employment.
6.The Respondent contravened the Applicant’s Workplace rights under section 341(1)(b) by denying the Applicant her right to initiate consultation processes and dispute resolution mechanisms as specified in the Enterprise Agreement at clause 40.1 & 36.
7.The Respondent contravened the Applicant’s Workplace rights under section 342(1)(1) by: i) dismissing her for serious and gross misconduct for exercising her workplace rights, ii) injuring the employee in her employing by damaging her reputation as a professional and reliable employee (see employee separation certificate Annexure 6 which states that her work was unsatisfactory), and iii) altering the Applicant’s position to her detriment. (see annexure 1 proposed new agreement changing the position).
8.The Respondent contravened the Applicant’s Workplace rights under section 343 by structuring a negotiation framework which was coercive in its nature and subverted the processes specified in the Enterprise Agreement generally and specifically by clauses 40.1 and 36.
9.The Respondent contravened the Applicant’s Workplace rights under section 344 by placing the Applicant under undue pressure and influence to sign the new agreement without representation or independent legal advice to which she was entitled by clause 40.1 and 36 of the enterprise agreement. (see Annexure 3 – email advising that Applicant was seeking representation).
10.The Respondent contravened the Applicant’s Workplace rights under section 345 by deliberately misrepresenting the effect the new employee agreement would have on the benefits to which the Applicant is entitled under the Enterprise Agreement.”
It is also necessary to set out Clauses 36 and 40.1 of the Enterprise Agreement:
“36 Resolution of Disputes
36.1In the event of a dispute about NES any matter except the actual termination of employment, in the first instance the parties must attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor. If such discussions do not resolve the dispute, the parties will endeavour to resolve the dispute in a timely manner by discussions between the employee or employees concerned and more senior levels of management as appropriate.
36.2The parties agree that disputes in relation to requests for reasonable working arrangements and extending a period of unpaid parental leave may be dealt with under the terms of this clause.
36.3The employer or employee may appoint another person or the Union to accompany and/or represent them for the purposes of this clause.
36.4If a dispute is unable to be resolved at the workplace, and all appropriate steps under clause 36.1 have been taken, a party to the dispute may refer the dispute to FWA or other statutory tribunal.
36.5Where the matter in dispute remains unresolved, the FWA or other statutory tribunal may exercise any method of dispute resolution permitted by the Act that it considers appropriate to ensure the settlement of the dispute.
36.6The parties agree that the FWA or other statutory tribunal shall have the power to do all such things as are necessary for the just resolution of the dispute including mediation, conciliation and arbitration.
36.7The FWA or other statutory tribunal shall be provided access to the workplace to inspect or view any work, material, machinery, appliance, article, document or other thing or interview any employee who is usually engaged in work at the workplace.
36.8The parties agree that the FWA or other statutory tribunal may give all such directions and do all such things as are necessary for the just resolution, remedy and determination of the dispute.
36.9Subject to any review of the FAW or other statutory tribunal’s decision or direction relating to the dispute, the decision or direction shall be accepted by all affected parties as a settlement of the dispute and shall be implemented by them.
36.10The parties agree to confer immunity on the FWA or other statutory tribunal for all matters relating to the dispute resolution between the parties.
36.11While the dispute resolution procedure is being conducted, the status quo must remain and work must continue in accordance with this agreement and the Act. Subject to applicable occupation health and safety legislation, an employee must not unreasonably fail to comply with a direction by the employer to perform work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.
…
40.1 Consultation & Introduction of Change
(a) Employer’s Duty to Notify –
(i) Where the employer has made a definite decision to introduce major changes in production, programme, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and or their workplace representatives, which may include the Union.
(ii) “Significant effects” include termination of employment, major change in the composition, operation or size of the employer’s workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure, the alteration of hours of work, the need for retraining or transfer of employees to other work or locations and the restructuring of jobs.
(b) Employer’s Duty to Discuss Change –
(i) The employer must discuss with the employees affected and their workplace representatives, inter alia, the introduction of the changes referred to in sub-clause 40.1(a)(i) of this clause, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees, and must give prompt consideration to matters raised by the employees and/or their workplace representatives, which may include the Union, in relation to the changes.
(ii) The discussion shall commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in the said sub-clause 40.1(a)(i).
(iii) For the purpose of such discussion, the employer must provide in writing to the employees concerned and their representatives, including the Union, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees, provide that any employer shall not be required to disclose confidential information the disclosure of which would adversely affected the Employer.”
The respondent in its outline of submissions sets out under the heading “Issues in the Case” what it believes is necessary to be proved in order for the applicant to succeed but commences with a number of factors which it argues are not in dispute:
“10. The following matters are not in dispute in the proceedings:
(a)The Enterprise Agreement applied to the Applicant’s employment with the Respondent at all material times up to 20 December 2012.
(b)The Applicant’s employment was terminated on 20 December 2012, effective from that date and that termination satisfies the definition of “adverse action” under s.342(1) (Item 1(a) of the Act).
(c)Mr Renouf was the person who solely decided to terminate the Applicant’s employment. He is the “decision maker” (Renouf 19/8/13 at [65]).
(d)The Applicant’s right or entitlement pursuant to clause 40.1(B) of the Enterprise Agreement, when it properly arose, was a “workplace right” for the purposes of s.341(1) of the Act.
11.In light of the claims made in the Application, and in the context of the Applicant’s Submissions, the Respondent says that the following matters are the issues to be determined in the proceedings:
(a)In light of the changes which the Respondent had proposed to implement regarding JPV, was clause 40.1 of the Enterprise Agreement engaged prior to 20 December 2012?
(b)If the answer to the foregoing question is yes, did the Respondent’s obligations pursuant to clause 40.1(b) require it to meet any affected employees as a group or did the Respondent have the right to engage in the discussions provided for in clause 40.1(b) individually with the affected employees?
(c)Further, in the circumstances of the case, did the Applicant invoke clause 36 of the Agreement?
(d)If the answer to either paragraphs paragraph (b) or (c) above is yes, has the Respondent rebutted the presumption which arises under s.361 of the Act in respect of the termination of the Applicant’s employment on 20 December 2012?
(e)Did the Respondent engage in any conduct in contravention of ss.343, 344 or 345 of the Act?
(f)If the Respondent engaged in any conduct in contravention of ss.340, 343, 344 or 345 of the Act, what is the appropriate measure of compensation, taking into account the steps the Applicant took in order to mitigate any loss and whether the circumstances of the case warrant any amount being awarded on account of hurt, distress or humiliation?”
Although the respondent argued orally that what he intended to do under the future directions proposals did not constitute a major change, he was more reticent in his written submissions. It is the Court’s view that what the respondent proposed to do was a major change to its organisation and structure. Prior to the changes there was a hierarchical reporting system that involved the three senior nurses in responsibilities over the whole of the facility (although to a much lesser extent in the case of Ms Gibbs) whereas under the new system each would be directly responsible for her own part of the facility only. The proposals would have a significant effect upon their employment because their current positions ceased to exist. The new positions which the three senior nurses were being offered, whilst allegedly being equally comparable in terms of status and remuneration, had attached to them position specifications and descriptions that were significantly different from those under which they were currently operating. The KPIs involved two performance appraisals within the first six months after commencement of the contract. The witnesses for the respondent admitted that failure to match the KPIs could lead to dismissal. There is also some tension between the first letter of 17 December which states that the position of deputy director of nursing would cease to exist effective 17 December 2012 and the draft nature of the position description and KPIs of the new post referred to in the second paragraph of that letter. The draft position description makes no reference to the enterprise agreement. It does refer to termination as being in accordance with the National Employment Standards. There is no position of care manager contained in the enterprise agreement wherein in clause (5) there are definitions of all other positions which the agreement is meant to cover. Although Ms Fortuin denies it, in [45] of her affidavit, it must have been open to one reading these documents to think that the changes would have the effect of taking Ms Stanley out of the enterprise agreement. Under cross examination Ms Fortuin was asked about the clause placing termination under the National Employment Standards:
“Was it also the case that they were told that the position is subject to termination by either party in accordance with the national employment standards?‑‑‑That was in the letter of appointment, yes.
Why was it intended to change their termination provisions from what was in the enterprise agreement to the national employment standards?‑‑‑There was no intention to change it.
Well, the termination provisions in the enterprise agreement were not quite the same as the termination provisions in the national employment standards, were they?‑‑‑I understand whichever is the more favourable is the one that applies.
And if the termination provisions in the enterprise agreement were more favourable, what was the point of saying that position is subject to termination by either party in accordance with the national employment standards?‑‑‑Whichever was more advantageous would be the one that applied.
Was that the impression that you – that was intended to be given to Ms Stanley and her colleagues?‑‑‑There was no impression intended to be given.
But would you understand that they might take it that their – that that was what was going to apply to them from then on?‑‑‑If they had any concerns with the letter of appointment, they were welcome to come and see me to seek clarification.
The Court does not find these responses particularly satisfactory. Why should an employee faced with a very specific term of a proposed agreement have any inkling that it was not the intention of its employer to apply that clause but to apply a more beneficial one and so seek clarification? The inference that the Court makes is that this was an attempt to move the contract away from the terms of the enterprise agreement to something that was less beneficial to the employees.
In [44] of her affidavit Ms Fortuin states:
“[44]After Mr Renouf told me that Ms Stanley had asked whether the nurses could meet us as a group, I decided to check the Enterprise Agreement. I was aware of the duty to consult with employees about “major workplace change” under clause 40.1. I believed that it would be invoked at a later stage when we were looking at appointing team leaders, which in turn may have had an affect on rosters. When I looked at clause 40.1 I observed that there was no requirement under the Enterprise Agreement (or elsewhere) that required employees to be consulted as a group.” [emphasis added]
Whilst she states in [45] that she did not think the restructure constituted a major workplace change she accepts that she did not have any discussions about that with Mr Renouf at that stage. The Court is of the view that at the very least the proposals put to the senior nurses in the Future Directions meeting were part of a major workplace change as defined in Clause 40.1. The fact that the change may have been intended to be introduced incrementally does not affect its definition so that each incremental change would be covered.
The major thrust of the respondent’s argument is that even if there was a duty to discuss there was no obligation to hold group meetings. He argues that this is what was being demanded by Ms Stanley and her colleagues. He argues that the discussions and email correspondence do not evidence a request by the nurses to hold discussions with their workplace representative and thus there was no breach of clause 40.1.
The respondent, after referring to the frequently cited cases on construction of enterprise agreements such as City of Wanneroo v Holmes (1989) 30 IR 362 per French J; Short v FW Hercus Pty Ltd (1993) 40 FCR 511 and Kucks v CSR Limited (1996) 66 IR 182 paraphrases the views of the Full Court in Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 put the task in a manner which the Court accepts:
“Shortly stated the proper construction of a provision of an enterprise agreement requires consideration of the language of the particular instrument understood in the light of the industrial context and purpose of the instrument, and the legislative background against which the agreement was made.”
It is the respondent’s case that a proper interpretation of clause 40.1(b)(i) allows the employer to choose the manner in which the discussions take place provided that they do take place with the employee’s representatives if that is requested. The employer can hold large meetings or tool box meetings of small groups or individual meetings. An employer is not bound to concede any particular type of meeting to any group of employees.
The Court accepts that in the industrial context of this workplace and the employees immediately affected by the change it was not unreasonable for the employer to seek individual meetings. There were only three employees involved, they were at the very least “middle managers” and apart from the similarity of the KPIs and the clause relating to termination the proposals did have an individual flavour to them. In coming to this finding the Court excludes consideration of whether the proposed meetings with three members of management and only the one employee constituted coercion or undue influence. But the question that has to be asked is whether the demand for a group meeting was all that the nurses were requesting because the wording of grounds 2 and 4 of the application is sufficiently wide to allow for further investigation. The applicant points to the email sent by Ms Franzen on 20 December. This bears close consideration. It makes the clear point that the three nurses felt that the proposed manner of consultation was intimidatory. It makes the point that the nurses have found it necessary to seek independent and union advice and it makes the point that the nurses do not wish for a meeting to take place until a representative has been nominated. Clause 40.1 is clear that once a representative has been nominated that representative would have a right to be party to the consultation.
The respondent relies upon the evidence of the conversations that took place on 20 December, in particular that between Ms Fortuin and Mr Renouf and Ms Stanley commencing before the email was sent when Ms Stanley, Ms Franzen and Ms Gibbs each said to words to the effect:
“We are not going to meet individually.”
There is then reference to the conversation immediately prior to the dismissal when Ms Stanley was told by Mr Renouf that she was required to attend an individual meeting that afternoon and she stated that she was refusing to attend. Those conversations make no reference to the email.
It is the Court’s view that clause 40.1 permitted the nurses to appoint a representative to attend discussions with them and required the employer to hold discussions with that representative. The email sent by Ms Franzen constituted advice to the employer of two things. First, that there was a dispute as to the application of clause 40.1 and second, that the employees wished to appoint a representative. It is the Court’s opinion that the respondent could not avoid the requirements of clause 40.1 (if it applied) by acting precipitously to insist upon a meeting without a representative and dismissing Ms Stanley when she declined to attend. This is so even though Ms Stanley did not say words to the effect that she would only attend with a representative. That right had already been exercised in the email, it did not lose its effect because it was not reiterated by Ms Stanley at what were clearly the very distressing events of the encounter with Mr Renouf and Ms Fortuin.
The Court has concluded that the email sent by Ms Franzen constituted the exercise of a workplace right on behalf of herself, Ms Gibbs and Ms Stanley pursuant to clause 40.1. The Court must now consider whether Ms Stanley was dismissed because she was exercising that workplace right. In this regard Ms Stanley is entitled to some statutory assistance pursuant to the provisions of s.361:
“s.361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.”
This reversal of the onus of proof onto the employer does not create an irrebuttable presumption of law in favour of the employee; Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] 290 ALR 647[1] at [128] per Gummow and Hayne JJ. It does mean that in order to rebut the presumption it will usually be necessary for direct evidence to be called about the reasons for the adverse action; Barclay at [45]. In this case direct evidence was given by Mr Renouf and that evidence has been set out in extenso in these reasons. He was not cross examined upon it and the Court must therefore be very wary of making inferences other than from the actual words themselves. Mr Renouf did not give any particulars of how he considered Ms Stanley to be “the most disruptive to the operation of the residential facility”. We do know that Ms Stanley had been employed for some years, had not been disciplined previously and had been the subject of commendation. Mr Renouf does not say what his “experience with Ms Stanley and the senior nursing staff” was that brought him to this view. But it is noteworthy that he then goes on to say that “I had observed that Ms Stanley usually took the lead in meetings and opened discussions.” Can the Court infer from that sentence that Mr Renouf, having received an email indicating that union advice had been taken by Ms Stanley and a request for representation had been made, was in some way influenced by that fact when considering the nature of Ms Stanley’s failure to accept his authority. It believes it can. It is to be remembered that Mr Renouf’s action did not occur on the spur of the moment, made by a somewhat insecure senior employee who was concerned about a loss of face. Mr Renouf planned to take the steps he did. He had spoken to a member of the board of management about it and he had prepared a letter dismissing Ms Stanley for use as, when expected, she refused to meet with him. Action taken by Mr Renouf partly for the reason that Ms Stanley had exercised her workplace right is sufficient because of the provisions of s.360:
“s.360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.”
[1] “Barclay”
In putting forward these views the Court is conscious of the concern expressed by Gummow and Hayne JJ in Barclay that the court should not search for some unconscious reason for the actions of a party and that:
“[126]The relevant frame of reference in this case is a statutory provision in which neither the words “objective” nor “subjective” appear. There is an inherent risk of misguidance when seeking to imply tests or requirements in the application of a statutory provision absent some persuasive basis to do so. Nothing was put in argument, nor are there any decisions of this court, to provide such a basis. Indeed, no direct challenge was made to what had been said by Mason J in Bowling.”
The Court does not believe that this is one of those cases where “the reasons for the conclusions and the facts for which they were formulated are not challenged”. As indicated previously the applicant’s whole case was a challenge to the respondent’s argument that the dismissal occurred because Ms Stanley exercised her workplace right. The confirmation of this, the Court believes, comes from the evidence of Mr Renouf himself.
Finally, the Court is of the view that the words in ground 2 of the contraventions “(see Annexure 3 with email trail requesting group consultation)” does not restrict the applicant to the claim as interpreted by the respondent that the sole exercise of a workplace right was the request for group consultation. The email asks for more than that. It asked that nothing be done until a representative be appointed.
Ground 2 also makes reference to clause 36.1. It is the Court’s view that once the email chain and the discussions with the three nurses commenced it was clear that there was a dispute between the employer and the employees as to whether the provisions of clause 41.1 were invoked by the proposed changes. Clause 36 sets out procedures for the resolution of disputes. The claim made in ground 2 is that the dismissal of Ms Stanley prevented her from exercising the rights that she had under s.36 which rights included both to take part in the dispute resolution procedures and to have the status quo retained whilst the procedures were being conducted. That would have prevented her from being dismissed in the manner in which she was. The respondent’s answer to this is contained in [20] of its original outline of submissions and at [13] of its final submissions. The gravamen of these submissions is that the applicant did not seek to nor in fact did invoke clause 36 of the Enterprise Agreement prior to her termination. At [14] of the final submissions the respondent argues:
“[14]The Applicant had consulted with the union about the Enterprise Agreement on 20 December 2012) Stanley 9/8/13 at [14]; T25.29-31, T26.46-47). She had also read the Enterprise Agreement herself (T30.29-30). If in fact the Applicant was asserting any rights under clause 36 of the Enterprise Agreement it was incumbent on her to do so. The Respondent’s conduct for the purposes of Part 3-1 of the Act cannot be judged by reference to some unarticulated basis.”
With respect to the respondent I believe the argument is logically flawed. To follow it to its conclusion would mean that it could take steps to prevent the clause being invoked without penalty. That cannot be right. In any event the Court is of the view that the clause mandates a procedure that has to be carried out by both parties. It is not something which necessarily needs to be “invoked”. The employer has just as much responsibility for attempting to resolve the matter as the employee. In this case the employer made no attempt whatsoever to resolve the dispute in question, namely the applicability of clause 40.1. He simply dismissed Ms Stanley because she failed to comply with what was in law not a lawful instruction. By dismissing Ms Stanley the respondent acted in contravention of clause 36.1(i) which, in the Court’s view, comes into place the moment a dispute is notified. That occurred in the email from Ms Franzen and was acknowledged by Ms Fortuin.
In ground 2 of the application the complaint is made under s.340(1)(b) which is the taking of action to prevent the exercise of a workplace right. That is applicable to the complaint in respect of clause 36 of the Agreement but it is not applicable to the findings the Court has made in respect of clause 40.1. The contravention in that case is the one articulated in ground 4 being adverse action because the applicant proposed to exercise the workplace right, namely the right to require representation at any meeting. In ground 6 there is an alleged contravention by denying the applicant her right to initiate the consultation processes and dispute resolution mechanisms under s.341(1)(b). In the Court’s view this is not a civil penalty provision, it is merely what it says it is, the meaning of a workplace right. The Court would make a similar finding in respect of the complaints under ground 7 which alleges contraventions under s.342(1). That again is just a “meaning” section and not a civil penalty provision.
The next ground to be considered is therefore ground 3 which alleges that the respondent applied coercion and undue influence in seeking to force a new employment agreement upon the nurses. Section 343 is in the following form:
“343 Coercion
(1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b) exercise, or propose to exercise, a workplace right in a particular way.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) Subsection (1) does not apply to protected industrial action”
The applicant explains how she believes a breach of s.343 occurred at [51] of her written submissions:
“[51]Section 343 prohibits the taking of adverse action with intent to coerce the employee (in this instance) against exercising a workplace right or exercising or proposal to exercise it in a particular way. I submit that the Senior Management took action to prevent Ms Stanley and her two senior nursing colleagues, exercising their rights under the Enterprise Agreement to consultation and union representation on the changes to their working life about to be forced on them by denying that the proposed changes were major. Even if the Senior Management had mixed motives, this does not provide a defence for them because of the effect of s550 of the Act, which provides that involvement in a contravention of a civil remedy provision is taken to have been a contravention of that section.”
The Court discussed coercion and duress in some detail in Fair Work Ombudsman v Toyota Material Handling (NSW) Pty Ltd [2013] FCCA 1881 at [44-57] with particular reference to the decision of Buchanan J in Fair Work Ombudsman v National Jet Systems Pty Ltd [2012] FCA 243. The Court concluded at [55 – 57]:
“[55]What is evident in both Schanka and National Jet Systems is the necessity that the employer intend to apply the pressure that will remove from the employee real choice. Whereas Moore J states the requirement explicitly (as seen in the emphasised sentence above), Buchanan J is a little less direct and relies on the test for “intent to coerce” found in Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union (2001) 109 FCR 378. According to this test intent attaches to the first limb of duress, and not to the illegitimacy of the compulsive conduct.
[56]I am fortified in this view by the judgment of Weinberg J in National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441 in which his Honour opined:
“The approach to the expression "intent to coerce" taken in each of the authorities set out above makes it clear that what is required is an intent to negate choice, and not merely an intent to influence or to persuade or induce. Coercion implies a high degree of compulsion, at least in a practical sense, and not some lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply.
I am fortified to some degree in my view that this is the correct meaning to ascribe to the expression "intent to coerce" by the observations of Lord Romilly MR in Ellis v Barker (1871) 40 LJ Ch 603. His Lordship accepted that coercion may take an infinite number of forms. However, he noted that the moment that a person who influences another does so by threatening to take away something he then possesses, or by preventing him from obtaining an advantage he would otherwise have obtained, it then becomes coercion and ceases to be persuasion.”
[57]Thus, in my opinion, the court must enquire firstly, as to whether there exists conduct the effect of which is to leave an employee or future employee no real choice; secondly, that this negatory effect was intended by the employer; and thirdly that the conduct was illegitimate, whether unlawful, unconscionable or otherwise.”
The applicant proceeds with her submissions at [54]:
“[54]All three of the senior nurses, Ms Stanley, Ms Franzen and Ms Gibbs, found the atmosphere they were subjected to on 17 December 2012 coercive. They all felt they were being pressured into simply agreeing to the terms of the documents they had been given on that date because each of them was required to attend a meeting by herself with Mr Renouf, Ms McMahon and Ms Fortuin. This is despite the fact that Ms Stanley consulted the NSW Nurses Association (paragraph 14 of her Affidavit affirmed 17 May 2013) and received the same advice from each, that is, that what was proposed was major workplace change with significant effects on them and that they were entitled to meet with Senior Management as a group and that they were entitled to have union representation if they required it.”
The Court is of the view that the applicant cannot make out this claim. The evidence from the documents and the oral evidence from the respondent’s witnesses is clear that the new contracts the respondent was proffering and the terms of the KPIs that were part of them were drafts to be discussed and not finalised for some weeks. It cannot be said that the requirement to have individual meetings was conduct the effect of which was to leave the employees with no real choice nor can it be said on the evidence that this negatory effect was intended by the employer. The necessary elements of coercion are not present in these circumstances.
In ground 9 the applicant alleges she was placed under undue pressure to sign the new agreement without representation or independent legal advice. It is not necessary to go into any details of the legal position with regard to “undue pressure” because the evidence as discussed above in relation to coercion does not allow for a finding that she was being required to sign the new agreement in the meeting that she was required to have with Mr Renouf and his colleagues.
The manner in which ground 10 of the application was dealt with is contained in [63] of the applicant’s submissions. It has nothing whatsoever to do with the benefits of the new employee agreement, however, the respondent appeared content to deal with the matter on the basis of the submissions:
“[63]Section 345 deals with a person knowingly or recklessly making a false or misleading misrepresentation about another person’s workplace right. It is not submitted that Mr Renouf knowingly made any false or misleading misrepresentation but it is submitted that he recklessly did so in that, if he had correctly read the provisions of Clauses 36 and 40.1 of the enterprise agreement or sought professional industrial relations advice about their meaning, he would not have embarked on the course that he did. He claimed that the consultation provisions of the enterprise agreement were not enlivened because the changes proposed were not major, even though, as already noted, they changed the job titles and position descriptions of the relevant employees, introduced KPIs and proposed to excise them from the enterprise agreement without seeking a variation to it.”
Although the Court is of the view that Mr Renouf was wrong when he said that clause 40.1 did not apply it is satisfied that he did not do so recklessly. Reckless has been defined in the authorities as “consciously disregarding consequences”: R v Phillips [1971] ALR 740 per Windeyer J. In Banditt v R (2005) 224 CLR 262, Gummow, Hayne and Heydon JJ opined in obiter (at [2]):
“When “reckless” is used in applying the principles of the tort of negligence, the yardstick is objective rather than subjective. On the other hand, to sustain an action in deceit, fraud is proved when it is shown “that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false”. But (3) is but an instance of (2) because, as Lord Herschell put it in Derry v Peek:
[O]ne who makes a statement under such circumstances can have no real belief in the truth of what he states.
This reasoning is akin to that which supports the evidentiary inference explained by Lord Esher MR as being that one who wilfully shuts his eyes to what would result from further inquiry may be found to know of that result.”
The evidence in the instant case reveals that Mr Renouf discussed the matter with Ms Fortuin who had herself called the Employees Association and received their advice. Whilst it is the Court’s view this advice was wrong, a view that could equally be wrong itself, its repetition does not bear the odium of recklessness.
Ms Stanley claims compensation pursuant to s.545(2)(b) of the Fair Work Act 2009[2] for the breaches of the Act that the Court has found. She gave evidence of a significant loss of earnings due she said to the manner of her dismissal and the fact that her separation certificate stated that the reason for separation was unsatisfactory work performance. Ms Stanley did not receive any form of reference from John Paul Village. She deposed to the fact that she did not believe that she could get a position equivalent to the one she had left without a reference and with only that certificate. She provided evidence of one fairly recent attempt when in October 2013 she applied for a position with Anglican Retirement Villages. She failed to get that position. This was notified to her in an email of 1 November in the following form:
“Dear Jennifer
Thank you for applying for a position with ARV. The time you have taken to apply for the role and the interest you expressed in ARV are appreciated.
We have carefully reviewed and considered your background for this position. On this occasion we must advise that your application has been unsuccessful.
We understand that this will be disappointing news but want to thank you for having considered ARV as your potential employer. We would like to wish you the best with your job search.”
[2] “Act”
Ms Stanley deposed that she obtained part time employment as a practice nurse working two days or 16.5 hours per week on 21 May 2013. Prior to her dismissal she was earning $90,007.00 per annum plus $8,101.00 per annum superannuation. Her current annual salary is $28,314.00 per annum plus superannuation of $2,619.00. She claims to have lost income (plus superannuation) to the value of $67,175.00 per annum. She explains her calculation at paragraphs 7 and 8 of her affidavit of 20 August:
“[7]I have calculated that as at the 16 August, 2013 my termination has resulted in me losing net income, not inclusive of superannuation, of $43,117 dollars and inclusive of superannuation being circa $46998.00.
[8]I have derived this calculation referred to in point 7, by subtracting my actual earnings of 13 weeks pay being $7078.5 form my current employment, from the earnings I would have received from John Paul Village had I not been terminated (net of the 5 week’s notice being paid) being 29 weeks or $50,196. Superannuation was calculated by multiplying the difference by 1.09 being the average Superannuation Guarantee levy over this period.”
The respondent argues that Ms Stanley has not mitigated her loss. It argues that however obvious it might appear that a senior nurse earning $90,000.00 per annum would not be able to secure a similar job without a reference and only an indication in her separation certificate that she lost her previous position because of unsatisfactory work performance, this was not a matter that judicial notice could be taken of. In an interesting article on Woods v Multi-Sports Holdings Pty Ltd [2002] HCA 9 by Megan Hoey: “The High Court and Judicial Notice: Woods v Multi-Sports Holdings Pty Ltd (2002) AltLJ 130 the author stated:
“The general rule is that all facts in issue or relevant to the issue in a given case must be proved by evidence, testimony, admissible hearsay, documents, things or relevant facts. Two exceptions to the rule are that no evidence is required of facts that are formally admitted by the parties or of which judicial notice is taken. When judicial notice is taken of a fact, the court declares that a fact exists notwithstanding the specific evidence of that fact has not been tendered.”
The learned author continued:
“McHugh J adopted the categorisation of judicially noticeable facts found in Cross On Evidence, that is facts that may be the subject of judicial notice fall into two categories: adjudicative facts which are facts in issue or a fact relevant to a fact in issue; and legislative facts which assist the court in determining the content of law and policy and to exercise its discretion or judgment in determining what course of action to take…”
In his Judgment Callinan J was critical of McHugh J’s use of ABS statistics. He commented that the courts must exercise great caution in taking judicial notice of anything:
“A fact may only be judicially noticed when it is so generally known that every ordinary person may be reasonably presumed to be aware of it. The court notices it, either simpliciter if it is at once satisfied of the fact without more, or after such information or investigation as it considers reliable and necessary in order to eliminate any reasonable doubt….”
Ms Hoey concludes:
The Woods case leaves the High Court’s attitude to the application of the doctrine of judicial notice very much in doubt. The principles on which the Court will rely in taking judicial notice of acts on appeal is not made clear by this decision. The conservative view is that caution is the grounding feature of the recognition of this type of evidence by a court.”
It is this Court’s view that Ms Stanley’s inability to obtain employment following her dismissal is not a matter for judicial notice but a matter for evidence. The Court might be able to infer from evidence how difficult it is to obtain employment but there must be some evidence of that fact. Ms Stanley could have brought a separate witness with expertise in the area to confirm what she suspected or she could have brought evidence of more attempts to obtain such employment that were unsuccessful. The only other evidence on the matter is a question asked of Mr Renouf at [T99]:
“And finally, a final few questions. Would you hire senior staff who did not have good quality references? --- Sorry, would I fire them if they didn’t ---
Would you hire them, I’m sorry? --- Hire them?
Yes? --- No, not really.”
This is, regrettably, not sufficient to allow the inference Ms Stanley wishes the Court to draw.
The Court would not class Ms Stanley’s action as failing to mitigate. It would class it as failure to establish the damages that she seeks.
The power under s.545(2)(b) to award “compensation for loss” includes compensation for hurt and humiliation; ALAEA v International Aviation Service Assistance Pty Ltd [2011] 193 FCR 526[3] and Transport Workers Union of Australia (NSW) v No Fuss Liquid Waste Pty Ltd [2011] FCA 892 at [23]. The applicant seeks this compensation. In ALAEA v IASA Barker J said at [443]:
“[443]However, the power of the court under s 545(1) and (2) to make appropriate orders following contravention including an order for compensation is quite divorced from this type of contractual consideration. As a matter broad public policy, the Parliament of Australia has provided that the court may give appropriate relief where contravention is proved. Relief in these circumstances helps to uphold the policy indicated in the FW Act that, amongst other things, contraventions of the freedom of association provisions should not occur and that appropriate orders should be made to remedy the contravention of such provisions. There is, therefore, in my view, no obvious policy consideration that militates against the making of a compensation order under s 545(1) or a compensation order under s 545(2), for the sorts of reasons that have inhibited the award of damages at common law for a breach of contract which is attended by shock, distress or humiliation.”
[3] “ALAEA v IASA”
In considering the appropriate amount of compensation his Honour said at [450]:
“[450] In my view, Mr Puspitono is entitled to some measure of compensation for the distress and humiliation I have found he suffered as a direct consequence of the contraventions proved by the evidence. The Union claims a non economic loss order under this head of $25,000. I consider such an assessment is too high. I am prepared, however, having regard to the status of Mr Puspitono as a licensed aircraft maintenance engineer, the annual income he received of approximately $55,000 at material times, the level of distress and humiliation he felt as disclosed by his evidence, not only at the fact of dismissal, but due to the negative assessment which adversely affected his reputation in the aircraft maintenance industry in Indonesia, that a non economic loss order in the sum of $7,500 is appropriate.”
This case is also informative on the issue of establishing economic loss which was done by evidence from Mr Puspitono that he had made several attempts to obtain employment without success.
Ms Stanley was the Deputy Director of Nursing. It is a senior position in the aged care industry. It is clear that the manner of her dismissal was very distressing to her. The conduct of the senior managers of John Paul Village resulted in the loss of three senior staff members. It was in the view of this Court precipitate, it was wrongful and was something that would not normally be expected from an institution run by the Catholic Church. In the Court’s view an award in the sum of $10,000.00 is appropriate. In ALAEA v IASA Barker J also ordered interested pursuant to s.51A of the Federal Court Act from the date of the effect of dismissal to judgment. I would do the same in this case.
In Part H of the application headed “Remedies Sought” the applicant seeks eighteen months salary at $150,000.00, twelve weeks distress and personal injury at $23,000.00 and twelve weeks for damage to reputation and injury to reputation at $23,000.00. It is not entirely clear whether those two requests are the same but in any event the Court has determined above that it is unable to award the applicant compensation based upon lost earnings as she has not satisfied it that her failure to obtain alternative employment was due to the dismissal. The Court has awarded the applicant $10,000.00 plus interest for the general damages arising out of the dismissal. This includes distress and damage to reputation. The applicant has not sought reinstatement but seeks pecuniary penalties and the word “other” is ticked underneath which is written “a letter of apology as attached.” Regrettably in the copy of the application that is before the Court there is no letter of apology. But the Court does believe that certain other orders should be made:
“1.The respondent shall write to Centrelink informing it that the separation details in its notification of 14 January 2013 are incorrect and that the correct details are that Ms Stanley was unlawfully dismissed by her employer in breach of provisions of the Act.
2.The respondent shall write to Ms Stanley providing her with a copy of the letter written to Centrelink and acknowledging the Court’s decision that she had been unlawfully dismissed.
3.The respondent shall provide Ms Stanley with a reference based upon her duties as the Deputy Director of Nursing at the John Paul Village without reference to the circumstances in which she was dismissed but acknowledging that she was dismissed unlawfully.
4.The respondent shall provide, at his expense, counselling for Ms Stanley and professional assistance to enable her to obtain employment at the level she was upon when she was unlawfully dismissed.”
As the applicant has sought penalties it is appropriate that this part of the proceedings be concluded by the making of declarations and that a hearing on penalty be scheduled in early course. If the parties so agree this can be dealt with on the basis of written submissions without the necessity for further hearing. In any event the Court will require written submissions on penalty to be provided by the applicant within fourteen days of these reasons being handed down and from the respondent fourteen days thereafter. If either party wishes to be heard on those submissions it is to advise my associate within fourteen days.
Costs are not normally awarded in these matters; s.570 of the Act. If there any special reasons why the applicant seeks her costs an application should be made within fourteen days.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Raphael
Associate:
Date: 14 February 2014
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