Susan Anson v Western District Health Service
[2018] FWC 2132
•14 MAY 2018
| [2018] FWC 2132 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Susan Anson
v
Western District Health Service
(U2017/13385)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 14 MAY 2018 |
Application for an unfair dismissal remedy – alleged sleeping on the job – alleged breach of directions to respond to allegations – union representation – agreement procedure – application dismissed.
[1] On 15 December 2017, Ms Susan Anson (the applicant) filed an application for an unfair dismissal remedy. Her application stated that she was notified of her dismissal from Western District Health Service (the employer) on 30 November 2017. The dismissal took effect on 30 November 2017. It was a summary dismissal.
[2] The applicant was one of two nurses allegedly asleep on duty at 5.30am in the Coleraine campus of the employer. She and another nurse were in charge of 10 residents and seven acute care patients. Both were allegedly discovered asleep by their Nurse Unit Manager, who arrived unexpectedly early. The applicant was dismissed for being asleep, and also for repeatedly refusing directions to provide a response to the allegation or meet with her employer. She had previously refused requests to attend. She provided a variety of explanations for her refusals including insisting on a particular union representative. The employer eventually refused to allow this representative to enter the premises because of her allegedly aggressive and unsafe conduct.
[3] Mr S Lynch represented the applicant, while the employer was represented by Ms R Nelson. I have taken account of all submissions and evidence led.
Authorities
[4] In Selvachandran v Peteron Plastics Pty Ltd1, Northrop J said:
“…In its context in subsection 170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of subsection 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.”2
[5] In Briginshaw v Briginshaw3, Dixon J said:
“…Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”4
Section 387(a) – valid reason
[6] The employer submits that there are two valid reasons, namely that the applicant was asleep on duty on 20 June 2017, and that the applicant refused to respond to the allegations against her, in breach of lawful and reasonable directions. 5
Allegation of sleeping on the job
[7] In relation to the alleged incident of sleeping on 20 June 2017, Ms Suzanne Clayden gave evidence that:
“12. I saw Susan Anson sitting in one of the chairs with her head slightly hung and her eyes appeared to be closed. It was clear to me that she was asleep. Her body was slouched.
13. I also saw the other nurse who was on duty that shift, Trudy Cottier, sitting in another chair beside Ms Anson with her legs raised on the chair and her head lowered onto the chair's arm rest. Her eyes looked to be closed and it was clear to me that she was also asleep.
14. I stood in the doorway for some time, probably over a minute at least. There was no movement whatsoever from either of them in the time I was standing there. It was obvious to me that they were asleep. They did not see me standing in the doorway or say anything or acknowledge my presence.
15. I was dumbfounded to find that both nurses on duty would be asleep in the residents' lounge at the same time. I have never seen that happen before.
16. I decided to walk around to check the facility rather than confronting them at that point.
17. I walked into the Valley View facility which is near the Acute area. As I approached the nurses' station there the lights came on. Susan Anson had primary responsibility for the Valley View section.
18. I then continued to towards the Wannon Hostel where the lights were on. I observed the two staff (1 EEN and 1 PCW) on duty at the Wannon Hostel at the nurses' station. One of the nurses was in the nursing station doing paperwork and the other one was about to walk towards the bathroom. I had a discussion with them both about how things were going. I also said something to them like ‘I have just come in and found the two nurses in Acute and Valley View asleep, is that normal?’ I cannot recall exactly what the nurses said, but it was to the effect of that those two nurses had been asleep on duty before.
19. After again checking the facility generally, I headed back towards Valley View. I was somewhat nervous about confronting the two staff, as I said above; it was an unusual circumstance for me. I believe that by the time I returned it was about 15 minutes after I had initially stopped and stood in the doorway of the lounge.
20. When I returned to the residents' lounge in Valley View, this time I stood in the doorway from the corridor. The red chairs were effectively facing me as I stood in that doorway. I could see that both Susan Anson and Trudy Cottier were still in the chairs in the same position, not moving as before, with their eyes closed. I believe that they appeared as though they were still asleep. The lights in the room were still off but there was still the light coming from the TV and the gas heater.
21. I stood there for several seconds without them moving and I wanted them to realise that I was there and so I said ‘good morning’ quite loudly to wake them and get their attention. I saw that they appeared to suddenly awoke and sat up and said ‘good morning’ back to me. I did not say anything else to them at that time.
22. At the completion of the shift, I asked Trudy to have a quick chat. I asked her about her and Ms Anson being asleep and Trudy responded with words to the effect that ‘we must have nodded off’.
23. I went back to my office and was doing some printing and collecting the printing. I noticed that they still had not come out of the lounge room. They still remained in there.
24. I was very concerned by their behaviour. The two nurses were the only staff members in charge of seven acute patients in the hospital and ten residents during their shift and they saw no issue in both sleeping at the same time whilst the patients and residents were left unattended.
25. I contacted Ilze Keevy, HR Manager, to advise her of the incident.
26. I now refer to the statement of Susan Anson which has been filed in this proceeding.
27. I refer to paragraph 7 of Ms Anson's statement where she states that from around 5:20pm she took a combined break of two 10 minute back to back breaks and her 20 minutes with Trudy. As I said above, the two of them should not be having a break at the same time. There should always be one on duty, alert and available.
28. I refer to paragraph 8 of Ms Anson's statement. When I was standing in the doorway at around 5:30am neither Susan Anson nor Trudy Cottier were holding any cups. If they had been holding cups or drinking I would have noticed it. If they were awake they would have been aware of me standing in the doorway. They did not, however, acknowledge me at all or move in any way.
29. I refer to paragraph 11 of Ms Anson's statement. I did not tell Trudy Cottier that they were not to take paid breaks together. After I had discovered the two of them asleep, as I state above, I spoke with Trudy Cottier and said to her that I saw that they were both asleep and Trudy said words to the effect that they must have nodded off. Trudy did not say anything about either or both of them having been on a break when I spoke to her. I therefore had no reason to make that comment to Trudy as claimed by Ms Anson.” 6
[8] The applicant denied being asleep. It is notable that she did not provide any response to the allegation until the day of the hearing. Even the witness statement provided by her did not expressly deny that she was asleep, although the applicant claimed that this was implicit. This is odd, given that this is a key allegation against her justifying her summary dismissal. In the alternative, the applicant submitted that she was entitled to sleep during a crib break. The applicant denied in transcript that she was asleep. 7
[9] Ms Cottier denied that she was asleep, and said that she may have ‘dozed off’ in front of a computer, not in the lounge chair. 8She conceded during a meeting with Dr Keevy, Ms Clayden and Ms Linda Elliot on 10 July 2017 that in her account of what happened she did ‘doze off’ in the lounge chair but was not asleep. This was the evidence of Dr Keevy and I accept that evidence in preference to other evidence for reasons discussed later.9 The employer concluded that she was asleep and imposed disciplinary action of a written first warning.10
[10] A number of issues arise. First, should Ms Clayden, or the applicant and Ms Cottier be believed in relation to the applicant’s alleged sleep on 20 June 2017? I had the opportunity to observe the witnesses giving evidence and I prefer the evidence of Ms Clayden. She was cross-examined on her evidence and was convincing. 11
[11] The applicant and Ms Cottier were cross-examined by Ms Nelson and were not convincing. For example, the applicant said that she did not take a break for nearly eight hours, 12 then said that she could not remember whether she took a break earlier or not.13 This is difficult to reconcile with a clear and specific statement in her witness statement that she combined all of her breaks, namely two 10-minute breaks and a 20-minute crib meal break and took them at 5.20am along with Ms Cottier,14 which was a different version of events which enabled her to make an alternative defence. The applicant explained her failure to give a response to the sleeping allegation at the meeting stating, “…Well, they didn’t ask me”, although the purpose of the meeting was to obtain her version of events.15 Her response was less than candid. The reason for her failure to give her version of events was that Ms Tracey Brown called an end to the meeting because she allegedly needed more time to look at a new document which she later agreed contained no new allegation, or witnesses, and was quick to read. It was a simple question of whether the applicant was asleep or not.16
[12] Ms Cottier consistently maintained that there was a difference between sleeping and ‘dozing’, which on the face of it was an evasive response. She denied that she conceded to dozing off in a lounge chair, 17 contrary to the evidence of Dr Keevy whose evidence I prefer. I was not satisfied that they were giving candid evidence of what actually happened.
[13] Second, did the applicant breach her duties as a nurse in being asleep, or her ‘duty of care’ in being asleep? Mr Lynch submitted:
“…that allegation hasn't been put to Ms Anson by way of disciplinary letter and I believe that it would be a matter for another place as it's a regulatory breach. My understanding is Ms Anson hasn't been reported for breach of her duties under the code.” 18
[14] However, as Ms Clayden pointed out, 19 leaving these patients, 10 residents and seven acute care patients, without the care of someone who is awake and alert can be dangerous, or potentially deadly. There were two nurses in charge of 10 residents and seven acute patients during their shifts, and someone needed to be awake and alert. These patients were vulnerable.20 The decision of Ms Clayden to leave the nurses asleep for five minutes does not alter this position.21 It is intrinsic to the duties of a nurse that they look after patients rather than exposing them to such serious danger. The absence of other formal proceedings does not change this position.
[15] Third, was the applicant on a crib break? She gave evidence that she was. However, Ms Clayden gave evidence that both the applicant and Ms Cottier should not have taken a break at the same time, and that:
“…There should always be one on duty, alert and available.” 22
[16] She denied the applicant’s claim 23 that she told Ms Anson that it was her preference that in the future the two did not take their paid breaks simultaneously.24 I accept her denial. Ms Clayden did not make this statement.
[17] The claim that they were on paid breaks seems unlikely because it would then be the case that no breaks were taken by them from the start of the shift at 9.15pm on 19 June 2017 to 5.20am on 20 June 2017 when they were allegedly asleep. As noted earlier, the applicant said that she did not take a break for nearly eight hours, 25 then said that she could not remember whether she took a break earlier or not.26 This is difficult to reconcile with a clear statement in her witness statement that she combined all her breaks, namely two 10-minute breaks and a 20-minute crib meal break and took them at 5.20am along with Ms Cottier.27 In any event, I had the opportunity to observe them giving evidence and I do not accept their evidence. I find that they were not on paid breaks. Even if they were, it was a breach of their duties as a nurse for them both to be asleep for reasons given by Ms Clayden.
[18] The final question is whether the applicant, junior to Ms Cottier, is absolved by the conduct of Ms Cottier in acquiescing to the applicant’s conduct. Mr Lynch submitted that:
“…it is fanciful to suggest that Ms Anson was taking a break and indeed sleeping without the implied permission of Ms Cottier, her supervisor at the time.” 28
[19] They may have simultaneously fallen asleep. There is no sign of a formal authorisation of the applicant’s sleep. There is no indication of some form of implied authorisation. Even if there was, the applicant herself had responsibilities or duties as a nurse and breached them.
[20] I find that the applicant was asleep on duty at 5.20am on 20 June 2017, in breach of her duties to patients and residents. This is a valid reason for termination of her employment.
Alleged breach of directions
[21] Turning to deal with the issue of breach of directions in more detail, the applicant was repeatedly provided with an opportunity to respond in person or in writing to the sleeping on the job allegation on 21 June 2017 29, 4 September 201730, 28 September 201731, and 1 November 201732. She was directed to attend a meeting or provide a written response on 17 November 201733, 18 November 201734, 21 November 201735, and 23 November 201736. The applicant failed to comply with these directions. The employer issued a termination of employment letter on 30 November 201737.
Did the applicant breach a lawful and reasonable direction?
[22] The employer advised the Health Services Union (referred to as HWU by the parties and throughout this decision) on 1 November 2017 that Ms Brown would not be permitted “…entry to WDHS premises … given [its] concerns with respect to the risk her conduct poses to the health and safety of staff members.” 38 The employer said that other union representatives would continue to be allowed to enter premises and represent members. The Union did not respond, and Ms Brown did not respond.
[23] The applicant elected not to proceed with the meeting scheduled for 23 November 2017 on the basis that she wanted Ms Brown to attend and represent her. 39 The applicant continued to fail to comply with directives to attend meetings without Ms Brown.40
Was the employer reasonable in refusing the applicant permission to have Ms Brown represent her?
[24] Mr Lynch for the applicant submitted that:
“…an employee is entitled to have the representative of their choice, and not a representative that the employer deems acceptable.” 41
[25] Mr Lynch endeavoured to support this submission by reference to a number of decisions concerning different agreement provisions, and different factual circumstances.
[26] In Jackie Mawkes v State of Victoria (Department of Human Services) 42, Ryan J of the Federal Court found that an agreement disciplinary process had to be complied with. He found that:
“Because it has been acknowledged… that the Department had not charged the applicant with any breach of discipline or conducted an inquiry… it follows that the imposition of the ‘Final Warning’ was ultra vires and a breach of the Agreement.” 43
[27] In Vong v Sika Australia Pty Ltd 44, the Magistrate found that the employer dismissed Mr Vong for a reason which included a prohibited reason. However, in that case the employer had a “…policy to deny Mr Vong the right of his union representative to assist him in the disciplinary hearings.”45 This is not the case at present. The employer repeatedly offered the applicant the opportunity to have a representative. For reasons that are dealt with later, it was reasonable for the employer to refuse to allow Ms Brown as opposed to other representatives such as Mr Cameron Granger or Mr Steven Mitchell to represent her.
[28] Mr Lynch also referred me to Robby Lankam v Federal Express (Australia) Pty Ltd T/A Fed Ex 46, in which the Commissioner found that:
“I take the view that the September security interviews were an integral part of the process leading to the Applicant’s termination and that he was unreasonably refused the assistance of a support person from his union during those interviews. In light of the Applicant’s demonstrated lack of proficiency in the English language I consider this denial particularly serious.” 47
[29] In this case the applicant was not unreasonably refused the assistance of a support person. She was repeatedly advised that she could bring a support person, and did so at the one meeting that took place.
[30] Notwithstanding Mr Lynch’s submissions, the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016-2020 48 (the Agreement) does not expressly require the employer to provide an employee with the union representative of their choice. Clause 15.1(c) of the Agreement provides that:
“(c) An Employee will be provided a reasonable opportunity to be represented at any time (including by a Union) with respect to all matters set out in this clause.”
[31] Further, in clause 15.3(b)(iv) of the Agreement an employer must:
“(iv) advise the Employee of their right to have a representative, including a Union representative”.
[32] In this matter the employer complied with these provisions in its letters directing the applicant to attend a meeting or provide a written response. On 21 June 2017 and 4 September 2017, the applicant was advised that she could bring a ‘support person’. This is not necessarily the same as a representative, but in any event two policies were attached on 21 June 2017 which might clarify the issue. Mr Lynch undertook to provide the Commission with these attachments to his witness material but unfortunately did not do so. On 28 April 2017 and 1 November 2017, the employer letters advised that the applicant could bring a “…support person or representative of your choice”, which made the position clear.
[33] On 17 November 2017, the employer advised the applicant that she:
“…may wish to bring a support person or representative to this meeting. This can include a representative from the Health Workers’ Union, where that representative is permitted to enter WDHS premises for that purpose. For workplace health and safety reasons, Ms Tracey Brown will not be permitted by WDHS to attend.” 49
[34] The applicant responded on 18 November 2017 by stating that:
“…I am entitled to have a representative of my choosing. I wish to have Tracey Brown from the HWU as my representative.” 50
[35] The employer responded on 21 November 2017 by pointing out that the Agreement “…does not specify that the employee is entitled to nominate a specific individual from the HWU to attend as their representative.”, and stated again that Ms Brown would not be permitted to attend. 51 These points were reiterated by the employer on 23 November 2017, and the applicant was given a ‘final’ opportunity to provide her response in writing or in person or by telephone.52 When the applicant did not respond by the required date she was summarily terminated on 30 November 2017.53
[36] The applicant was afforded the opportunity to be represented as required by clauses 15.1 and 15.3 of the Agreement or elsewhere.
[37] Second, in any event, it is reasonable that the employer would refuse to allow Ms Brown to attend. Dr Keevy gave evidence that:
“WDHS’s concerns arose from the behaviour of Ms Brown in the workplace including complaints received from staff that she was aggressive and engaged in inappropriate and bullying behaviour. WDHS was concerned that allowing her to participate or attend disciplinary meetings in the workplace could put the welfare of staff at risk.” 54
[38] Dr Keevy gave further detailed evidence in relation to Ms Brown’s behaviour. 55
[39] Ms Brown denied in cross-examination by Ms Nelson that she was aggressive or an occupational health and safety risk, but her evidence was unconvincing. She denied knowing of the 1 November 2017 letter barring her from WDHS premises until 9 November 2017, 56 despite the seriousness of the allegations and the impact it would have on her work. She denied knowing about a complaint made by Ms Bronwyn Roberts about her conduct during a meeting on 18 July 2016 where she allegedly raised her voice, pointed at and insulted Ms Roberts.57 She denied being aware that Ms Catherine Armstrong and Ms Mandy McAdam have refused to attend meetings with her because of her alleged conduct in a meeting with them on 28 February 2017 during which she allegedly raised her voice and pointed, and because she caused Ms Armstrong anxiety and stress.58 She denied recording a conversation with WDHS’ Chief Executive Officer, Mr Rohan Fitzgerald, and other matters during a dispute over right of entry into a public cafeteria.59
[40] Ms Brown denied being aware that Ms Sally Hicks refuses to meet with her anymore. 60 She conceded that Lyndoch Living had a concern about her behaviour, namely that she was ‘too robust’, which she denied meant ‘aggressive’.61 She accused Ms Elizabeth Aitken of being ‘aggressive and bullying’ during a meeting.62 This appeared to be a false allegation, which became apparent when excerpts of the meeting during which she represented Ms Leanne Rigby were played.63 In fact only five of 28 allegations were dealt with in this meeting, and there is some basis for the suggestion put by Ms Nelson that Ms Brown attempted to stymie the disciplinary process by being obstructive.64 Ms Brown was evasive when asked about her reasons for not attending meetings regarding the applicant, and was not able to advance satisfactory explanations for her alleged inability to attend.65 Overall, Ms Brown’s evidence under cross-examination was unsatisfactory and I prefer the evidence of Dr Keevy and other witnesses.
[41] The applicant explained that Ms Brown told her that “…WDHS weren’t allowed to dictate who could and couldn’t be [her] representative.” 66 However, in my view it is perfectly legitimate, and in fact a legal requirement, that the employer act to protect the health and safety of employees, or simply to protect employees. I note that Dr Keevy stated that she would resign rather than meet with Ms Brown:
“…My occupational health and safety. I refuse to work with her. So how are we going to conduct a meeting if I refuse to work with her, even on a telephone? I've made a judgment call, and I'm willing to resign. I refuse to work with her, and we all feel as strong as that. We will not tolerate bullying any further by her.” 67
[42] This is an extreme position to adopt but in the circumstances I am unable to find that it is unreasonable. In any event, I accept Dr Keevy’s evidence.
[43] Third, in any event, Ms Brown was largely or partly responsible, with the support of the applicant, for turning reasonable employer attempts at due process into what both sides agreed was a ‘farce’ 68. I accept Mr Lynch’s point that the HWU was attempting to represent its member and that is the point of the HWU, and that the applicant’s interests should be looked at.69 However, in this case, the conduct of both was unacceptable. It is to the credit of the HWU that it was willing to acknowledge, perhaps belatedly, that the process was a farce. It is a case study of how not to behave. I hope and expect that there is no recurrence of such events, and it is the HWU which is responsible for improving behaviour.
[44] The net result is that between 21 June 2017 and 30 November 2017, and perhaps the hearing of this matter, the applicant failed to provide her employer with an account of a very serious alleged event, namely her alleged sleeping on duty. She was given repeated invitations and directives to provide an account. It would have been a simple matter, for example, for the applicant to send an email denying that she was asleep. This is what she eventually said in these proceedings, although curiously not in her witness statement. She sent no such email, and did not provide a response in person or by telephone. She was silent on the allegation.
[45] For example, Ms Brown responded to an email of 5 September 2017 by stating that two days’ notice was insufficient for a disciplinary meeting. 70 In that email, Ms Brown requested “…supporting documentation such as witness statements etc”.71 The employer had provided on 4 September 201772 a description of the alleged sleeping incident which did not change to any great extent as further material was provided. A further description of the incident was provided on 26 September 201773 which was similar in nature, as was the description of the incident provided on 1 November 201774.
[46] The applicant agreed that there was little material change in these documents and said:
“The allegation hasn't changed. You need to talk for the record?---No.
You still understand that it's the same allegation?---Yes.
So, you have no trouble giving your evidence that, in fact, you weren't asleep, do you?---No - - -
You haven't needed any more information to allow you to give evidence, have you?---No.
You could have simply said, either on 30 June, or 7 September, or 5 October, or even 18 October when you're in the room, I wasn't asleep. Couldn't you?---Yes.
It's not very complicated really, is it, Ms Anson?---No.
It doesn't require a whole lot of particulars, does it?---No.” 75
[47] Ms Brown also conceded in cross-examination that there was little new evidence in the documents:
“And you say, don't you, that she didn't have time to consider the further evidence against her?---Yes.
And I have taken Ms Anson through the letter today. You remember it was a one-page document you were given?---Yes.
And Ms Anson concedes that it took her about five minutes to read the letter. Do you think that's about how long it took you to read it?---It may have taken that long, yes.
And it didn't raise any new allegation against Ms Anson, did it?---No.
No. And it didn't raise any new witnesses, did it?---No.
And the simple question to be asked of Ms Anson still remains were you asleep, Ms Anson, didn't it?---Yes.
And there was, frankly, no reason she couldn't respond to that question was there?---No.
And yet she did not do so, did she?---No.” 76
[48] In Burnett v Eastern Health, Bromberg J considered a clause in similar terms to the present clause and said:
“To my mind, it is strongly arguable that, to comply with the requirements of clause 11.1 Eastern Health needed to provide Ms Burnett with sufficient particulars of each allegation raised against her to enable her to understand the allegation so that she could have ‘a reasonable opportunity to answer’ it.” 77
[49] The Agreement in this present matter requires various forms of notice and provision of material. 78
[50] The applicant and Ms Brown had sufficient time to respond after 4 September 2017 and could have responded in writing or in person. They were aware that the Unit Manager had allegedly seen them sleeping. Two days’ notice is probably sufficient. Even if it was not, there was no good reason for Ms Brown not to respond to employer requests on 11 September 2017, 19 September 2017, 25 September 2017 and 28 September 2017 as to whether 5 or 6 October 2017 were appropriate meeting dates. 79 Ms Brown was correct to point out on 11 September 2017 that the Agreement provides for a ‘representative’, not a ‘support person’, but in practice there was no failure by the employer to allow a representative, as already discussed.
[51] The employer rescheduled the meeting for 5 October 2017. On 3 October 2017, Ms Brown indicated that she was unable to attend. Another meeting scheduled for 18 October 2017 was scheduled and finished when Ms Brown simply cancelled the meeting. 80 There was no good reason for cancelling the meeting.
[52] All of this and the applicant’s apparent support for this course of conduct shows a pattern of lack of cooperation and obstruction on Ms Brown’s part. Reasonable employer attempts at due process were reduced to a ‘farce’ 81.
[53] For the sake of completeness, the unfortunate sequence of events as recorded in the termination letter, and agreed to be accurate subject to the various disputes already discussed, 82 was as follows:
“Background
On 21 June 2017 Ms Bronwyn Roberts, Director of Nursing (DON) Coleraine District Health Service (CDHS), scheduled a disciplinary meeting with you on Friday 30 June 2017 to investigate an allegation that Ms Suzanne Clayden (Coleraine Nurse Unit Manager) caught you sleeping in the Valley View lounge, CDHS, whilst on duty on 20 June 2017. On 28 June you informed Dr llze Keavy (HR) per email that your HWU representative, Ms Tracey Brown, would not be available to attend the meeting on 30 June 2017. The meeting was cancelled.
On 30 June 2017 Ms Brown informed CDHS per email that you will not be available to attend any disciplinary meetings in the near future as you were to commence long [service] leave from 3 July 2017 to 13 September 2017.
On returning from long service leave on 4 September 2017, Ms Roberts rescheduled the disciplinary meeting for 7 September 2017. You declined this meeting stating Ms Brown could not attend the meeting on short notice,
On 11 September, 19 September, 25 September and 28 September 2017 CDHS/WDHS asked the HWU as your representative to indicate whether 5 or 6 October 2017 would suit you and Ms Brown to attend the rescheduled meeting. The HWU did not respond.
On 28 September 2017 CDHS consequently proceeded to reschedule the disciplinary meeting for 5 October 2017. On 3 October 2017 Ms Brown indicated per email she was unable to attend the meeting. Ms Brown did not provide an alternative date to reschedule the meeting.
On 6 October CDHS consequently rescheduled the meeting for 18 October 2017. On 11 October additional evidence was requested by the HWU from HR and provided to Ms Brown (clocking records of Suzanne Clayden and Mary-anne Spong for 20 June 2017; Mary-anne Spong's swipe sheets).
On 18 October 2017 Ms Brown (and yourself) turned up to attend the scheduled disciplinary meeting at WDHS at 12:00. [As] the meeting commenced Ms Brown was informed by Dr Keevy that Ms Suzanne Clayden was unable to attend the meeting due to an unannounced all day Australian Aged Care Quality Agency inspection (9:00-16:30) at Coleraine. Ms Bronwyn Roberts, DON CDHS, was requested to attend the meeting on behalf of Ms Clayden. Notwithstanding this notice, Ms Brown unexpectedly stated the meeting was cancelled as a result and you and Ms Brown left the premises.
On 1 November CDHS consequently rescheduled the meeting for 9 November 2017. On 1 November 2017, the HWU was also informed by WDHS that Ms Brown would not be permitted to attend disciplinary meetings as a representative of WDHS staff due to occupational health and safety concerns.
On 3 November the HWU confirmed you would attend this meeting with Mr Cameron Granger (HWU Industrial Officer) and Ms Tracey Brown (HWU Industrial Officer).
Although you attended the meeting on 9 November 2017, you elected not to proceed with the meeting on the basis that you wanted Ms Brown to represent you.
On 17 November 2017, WDHS again directed you to attend a disciplinary meeting scheduled for 23 November 2017. In the alternative, you were directed to provide a written response to the allegation by 5:00pm on Wednesday, 22 November 2017. You were informed that WDHS considered this direction to be lawful and reasonable and consistent with your duties as an employee. WDHS also confirmed that you could bring a support person or union representative with you to the meeting, other than Ms Brown who, for occupational health and safety reasons unrelated to your employment or the allegation, was no longer permitted to attend WDHS premises.
On 18 November 2017 you wrote to WDHS stating that you were unable to confirm whether you would attend the meeting on Thursday 23 November as it depended on Ms Brown’s availability.
On 21 November 2017 WDHS responded to you, confirming that you were still directed to attend the scheduled meeting on 23 November 2017 at 12:00 pm. WDHS made it clear to you that you were able to bring any other HWU representative to the meeting and that Ms Brown would not be permitted to attend due to unrelated occupational health and safety concerns. You were also given the opportunity to respond to the allegation in writing by 24 November 2017 if you preferred.
On 22 November 2017, Dr Keevy received a telephone call from Steve Mitchell from the HWU. Mr Mitchell stated that you were prepared to participate in a telephone conference to respond to the allegations if Ms Brown was permitted to be your representative in this discussion. Dr Keevy reiterated that WDHS had previously advised that Ms Brown was not permitted to attend disciplinary meetings with WDHS staff members as a result of ongoing occupational health and safety concerns. ln this discussion, Dr Keevy was clear that Ms Anson was able to nominate any other representative from HWU to attend.
On 23 November, WDHS had not received a response from you to confirm your attendance at the meeting or that you otherwise preferred to provide a written response. Consequently, by letter of the same date, WDHS wrote to you stating that it had repeatedly directed you to attend a disciplinary meeting concerning the allegation made against you by way of letter dated 20 June 2017. You were yet again provided with two options to provide your response to the allegation by 2:00pm on 24 November 2017 (verbal) or by 5:00pm (in writing) on Friday 24 November at 5:00pm.
We confirm that you did not provide your response to the allegation as directed.” 83
[54] In my view, the applicant breached lawful and reasonable directions, and these breaches constitute a valid reason for termination of her employment.
Section 387(b) – notice of valid reason
[55] The applicant was repeatedly provided with notices of the sleeping on the job allegation, and notice that she might be terminated if she did not comply with directions to attend meetings or provide her version of events in writing.
Section 387(c) – opportunity to respond
[56] The applicant was repeatedly provided with opportunities to respond, and refused to do so. However, the applicant claimed that there was no opportunity to respond to the allegation that lawful and reasonable directions were breached. The applicant was invited to respond in writing, and was directed to do so. The applicant did respond on 18 November 2017 by stating that she was entitled to a representative of her choosing and she was unable to confirm attendance at a meeting as it would depend on Ms Brown’s availability. 84 This was in effect the assertion of a view that she did not have to attend without Ms Brown, presumably that the directions were not lawful and reasonable. Further invitations and directions to respond were issued by the employer on 21 November 201785, and 23 November 201786. The applicant could have responded by stating that these were not lawful and reasonable directions or similar words. She was put on notice that these were serious issues and that she could be terminated. She did not respond but was given opportunities to.
Section 387(d) – unreasonable refusal by the employer to allow a support person
[57] The employer repeatedly stated that it would allow the applicant a support person. The eventual refusal to allow Ms Brown as a support person was reasonable, for the reasons set out above.
Section 387(e) – unsatisfactory performance
[58] The dismissal was for misconduct not unsatisfactory performance.
Sections 387(f)(g) – size of enterprise and absence of dedicated human resource management specialists/expertise on procedures followed
[59] The employer is a large employer with Human Resources professionals, and no discount on conduct is warranted.
Section 387(h) – other relevant matters
[60] Mr Lynch submitted that the employer had breached the Agreement by not having a ‘meeting’ as required by clause 15.4 of the Agreement. The employer met with the applicant and Ms Brown on 18 October 2017. The meeting was short because Ms Brown terminated it after a brief discussion. 87 There was some discussion about whether or not this was during the ‘investigatory procedures’ phase within clause 15.3 of the Agreement or the ‘disciplinary procedure’ phase within clause 15.4 of the Agreement. It appears that the process began as an investigation on 21 June 2017.88 No issue was taken with employer compliance with other aspects of the investigation and discipline procedure, apart from the issue of representation, which I have already dealt with.
[61] It then became a disciplinary procedure on 18 October 2017, as the employer submitted:
“That's the trigger point for (b) to apply. It requires the employer to form a view, on a reasonable basis. It must reasonably consider certain things. It is entirely clear that by 18 October Dr Keevy had formed that view. She had already been through an entire disciplinary process with Ms Cottier. She had already satisfied herself that Ms Anson was asleep on shift. There was no other purpose of the meeting, on 18 October, other than to ensure that Ms Anson had an opportunity to respond before appropriate disciplinary steps were taken.” 89
[62] Under the disciplinary procedure, the employer was required under clause 15.4(b) to notify the employee of the outcome of the investigation process, including the basis of any conclusion. Read in context, the repeated summaries by the employer of the sleeping on the job allegation meet this requirement. The employer had provided on 4 September 2017 90 a description of the alleged sleeping incident which did not change to any great extent as further material was provided. A further description of the incident was provided on 26 September 201791 which was similar in nature, as was the description of the incident provided on 1 November 201792. The applicant agreed in cross-examination that there was little material change in these documents.93
[63] It is clear that by 18 October 2017 the employer had, in the absence of any response by the applicant, come to an outcome of the investigation process consistent with those documents.
[64] On 17 November 2017, in a letter sent by email headed ‘Notice of Disciplinary Meeting’, the applicant was directed to attend meetings, and advised that a refusal to attend “…may constitute ‘serious misconduct’ under the relevant enterprise agreement and result in disciplinary action up to and including summary dismissal…”. 94 This clearly is also the expression of a view that “…the Employer reasonably considers that the Employee’s conduct or performance may warrant disciplinary steps being taken” which commences the disciplinary procedure in clause 15.4(a) of the Agreement.
[65] Subsequent letters were also headed ‘Disciplinary Meeting’. On 21 November 2017, the employer again advised that this refusal to attend meetings “…may constitute ‘serious misconduct’ in accordance with the Enterprise Agreement, warranting disciplinary action up to and including summary dismissal…” The employer also advised the applicant that:
“In the event that you fail or refuse to attend the above meeting or otherwise provide a written response as requested by WDHS, your conduct will be taken to be a persistent and wilful failure to comply with a reasonable and lawful direction of your employer, which may result in disciplinary action as foreshadowed above. WDHS may also proceed to make a decision with respect to your conduct and appropriate disciplinary action on the basis of the allegation without further notice, as outlined in our previous correspondence.” 95
[66] On 23 November 2017, the employer advised that if there was no written or verbal response WDHS “…will proceed to make a determination regarding appropriate disciplinary action up to and including summary dismissal…” 96 This meets the requirements of clause 15.4(b)(i) of the Agreement even if the previous letters do not.
[67] In relation to clause 15.4(b)(ii) of the Agreement, the employer did ‘meet with the Employee’ on 18 October 2017. The applicant sought to argue that this was not during the disciplinary phase. However, none of the allegations and in effect summaries of allegations changed in any material respect between 18 October 2017 and later dates. The allegations were the same, and the outlines were to the same effect, as both the applicant 97 and Ms Brown98 agreed. A view formed on 17 November 2017 had no further basis than one formed on 18 October 2017.
[68] It is implicit in the clause, in any event, that the requirement of a meeting would not extend to circumstances in which the employee simply refused to attend meetings. It cannot be the case that any employee is able to avoid termination of employment under this Agreement by the simple device of consistently refusing to attend meetings. This would mean that in effect no employee could be dismissed, because employees would simply refuse to attend a meeting. Read in context there is no indication in the Agreement that such an unusual or absurd result is intended: AMWU v Berri Pty Limited 99.
[69] The Agreement, and in particular clause 15 of the Agreement, are concerned with giving an employee due process while enabling an employer to raise and process issues of ‘performance’, ‘conduct’, ‘misconduct’, and ‘serious misconduct’ (clause 15.2 of the Agreement). There is little suggestion that it extends to prohibiting termination if an employee refuses to attend a meeting or makes the process unworkable. Even if there was some form of breach, it was a breach resulting from the employee’s own actions and not that of the employer, and the employee cannot rely on it. The employer made reasonable endeavours to afford the applicant due process, while the applicant and Ms Brown were obstructive and uncooperative.
[70] The applicant submitted that there was differential treatment, because Ms Cottier only received a warning. 100 However, as Dr Keevy said, Ms Cottier was not dismissed ‘due to mitigating factors’, which included legitimate reasons to be tired (she travelled to Melbourne and back the previous day), and she complied with directives and participated in the investigation process.101 The employer’s letter recording the outcome of Ms Cottier’s matter is consistent with Dr Keevy’s evidence.102
[71] Mr Lynch submitted that evidence was led that the applicant was a positive contributor to a workplace and she gave up her time to contribute to give back to the community as well. He submitted that the applicant is 56 years old and now without a permanent job. He said that the applicant led evidence that she is finding it difficult, now that her job has been terminated, to make ends meet with her significantly reduced wage. 103 My Lynch also submitted that the applicant had 12 years of service.104
[72] The evidence of a positive contributor to the workplace is a letter relating to the Hamilton Base Bikers. 105 Mr Fitzgerald explained that this letter was generic to fundraisers, and had nothing to do with her employment.106 I have taken the other matters into account, even though the genuine difficulties that the applicant is experiencing are of her own making.
Conclusion
[73] I have taken all submissions and evidence into account, including all mitigating factors and the fact that it was a summary dismissal. The applicant’s dismissal was not harsh, unjust or unreasonable. She was afforded a ‘fair go all round’. I dismiss the application. An order is contained in PR601987.
DEPUTY PRESIDENT
Appearances:
S Lynch for the applicant.
R Nelson of counsel for the employer.
Hearing details:
2018.
Hamilton:
April 12 to 13.
Printed by authority of the Commonwealth Government Printer
<PR601983>
ATTACHMENT 1
15 Discipline
15.1 Application
(a) Where an Employer has concerns about:
(i) the conduct of an Employee; or
(ii) a performance issue that may constitute misconduct, the following procedure will apply.
(b) There are two steps in a disciplinary process under this clause as follows:
(i) investigative procedure; and
(ii) disciplinary procedure.
(c) An Employee will be provided a reasonable opportunity to be represented at any time (including by a Union) with respect to all matters set out in this clause.
15.2 Definitions
(a) Performance means the manner in which the Employee fulfils his or her job requirements. The level of performance is determined by an Employee’s knowledge, skills, qualifications, abilities and the requirements of the role.
(b) Conduct means the manner in which the Employee behaviour impacts on their work.
(c) Misconduct means an Employee’s intentional or negligent failure to abide by or adhere to the standards of conduct expected by the employer. A performance issue can be considered misconduct where, despite all reasonably practicable interventions by the employer, the Employee is unable to fulfil all or part of their job requirements to a satisfactory level.
(d) Serious misconduct is as defined under the Act and that is both wilful and deliberate. Currently the Act defines serious misconduct, in part, as:
(i) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(ii) conduct that causes serious and imminent risk to:
(A) the health or safety of a person; or
(B) the reputation, viability or profitability of the employer’s business.
Conduct that is serious misconduct includes each of the following:
(iii) the Employee, in the course of the Employee's employment, engaging in:
(A) theft; or
(B) fraud; or
(C) assault;
(iv) the Employee being intoxicated at work;
(v) the Employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.
Subclauses 15.2(d)(iii)-15.2(d)(v) do not apply if the Employee is able to show that, in the circumstances, the conduct engaged in by the Employee was not conduct that made employment in the period of notice unreasonable.
15.3 Investigative procedure
(a) The purpose of an investigative procedure is to conclude whether, on balance, concerns regarding conduct or performance are well-founded and supported by evidence. An investigation procedure must be fair including proper regard to procedural fairness.
(b) The Employer will:
(i) advise the Employee of the concerns and allegations in writing;
(ii) provide the Employee with any material which forms the basis of the concerns;
(iii) ensure the Employee is provided a reasonable opportunity to answer any concerns including a reasonable time to respond;
(iv) advise the Employee of their right to have a representative, including a Union representative;
(v) ensure that the reason for any interview is explained; and
(vi) take reasonable steps to investigate the Employee’s response.
15.4 Disciplinary procedure
(a) The disciplinary procedure applies if, following the investigation, the Employer reasonably considers that the Employee’s conduct or performance may warrant disciplinary steps being taken.
(b) The Employer will:
(i) notify the Employee in writing of the outcome of the investigation process, including the basis of any conclusion; and
(ii) meet with the Employee.
(c) In considering whether to take disciplinary action, the Employer will consider:
(i) whether there is a valid reason related to the conduct or performance of the Employee arising from the investigation justifying disciplinary action;
(ii) whether the Employee knew or ought to have known that the conduct or performance was below acceptable standards; and
(iii) any explanation by the employee relating to conduct including any matters raised in mitigation.
15.5 Possible outcomes
(a) Where it is determined that after following the procedures in this clause that disciplinary action is warranted, the Employer may take any of the following steps depending on the seriousness of the conduct or performance:
(i) counsel the Employee, with the counselling recorded on the Employee’s personnel file;
(ii) give the Employee a first warning, which will be verbal and a record of the warning recorded on the Employee’s personnel file;
(iii) give the Employee a second written warning in the event that the Employee has previously been given a first warning within the previous 12 months for that course of conduct;
(iv) give the Employee a final written warning in the event that the Employee has previously been given a second written warning within the preceding 18 month period for that course of conduct;
(v) terminate the Employee’s employment on notice in the case of an employee who repeats a course of conduct for which a final warning was given in the preceding 18 months;
(vi) terminate the Employee’s employment without notice where the conduct is serious misconduct within the meaning of the Act that is wilful and deliberate; or
(vii) as an alternative to subclause 15.5(a)(vi) above and in those circumstances, the Employer may issue the Employee with a final warning without following the steps in subclauses 15.5(a)(i) to 15.5(a)(iii) above.
(b) The Employer’s decision and a summary of its reasons will be notified to the Employee in writing.
(c) If after any warning, a period of 12 or 18 months elapses (as relevant) without any further warning being required, all adverse reports relating to the warning must be removed from the Employee's personnel file.
(d) A dispute over the clause is to be dealt with in accordance with the Dispute Resolution Procedure of this Agreement.
1 (1995) 62 IR 371.
2 Ibid at 373.
3 (1938) 60 CLR 336.
4 Ibid at 361-362.
5 Respondent’s Outline of Submissions at [7]-[11].
6 Exhibit W9 at [12]-[29].
7 Transcript PN513.
8 Transcript PN918.
9 Transcript PN1741.
10 Exhibit W2; Transcript PN815.
11 Transcript PN2182-2245.
12 Transcript PN435.
13 Transcript PN442.
14 Exhibit A2 at [6]-[7].
15 Transcript PN402-406.
16 Transcript PN1396-1403.
17 Transcript PN789.
18 Transcript PN2357.
19 Transcript PN2228-2232.
20 Exhibit W9 at [24]; Transcript PN2191-2192.
21 Transcript PN2205.
22 Exhibit W9 at [27].
23 Exhibit A2 at [11].
24 Exhibit W9 at [29].
25 Transcript PN435.
26 Transcript PN442.
27 Exhibit A2 at [6]-[7].
28 Transcript PN2355.
29 Exhibit W6, Attachment IK-1.
30 Ibid, Attachment IK-3.
31 Ibid, Attachment IK-4.
32 Ibid, Attachment IK-5.
33 Ibid, Attachment IK-8.
34 Ibid, Attachment IK-9.
35 Ibid, Attachment IK-10.
36 Ibid, Attachment IK-11.
37 Ibid, Attachment IK-12.
38 Ibid, Attachment IK-6.
39 Exhibit A2 at [32]-[37] and Attachment SA-09.
40 Exhibit W6, Attachment IK-12.
41 Applicant’s Outline of Submissions at [21].
42 [2006] FCA 1746.
43 Ibid at [40].
44 [2010] FMCA 1021.
45 Ibid at [90].
46 [2011] FWA 6230.
47 Ibid at [141].
48 [2016] FWCA 9039.
49 Exhibit W6, Attachment IK-8.
50 Ibid, Attachment IK-9.
51 Ibid, Attachment IK-10.
52 Ibid, Attachment IK-11.
53 Ibid, Attachment IK-12.
54 Ibid at [12].
55 Transcript PN1765-1771.
56 Transcript PN1008-1009.
57 Transcript PN1017-1028.
58 Transcript PN1037.
59 Transcript PN1048-1063.
60 Transcript PN1084.
61 Transcript PN1088-1093.
62 Transcript PN1204-1205.
63 Transcript PN1221-1237. The agreement was that the WDHS not be provided with the recording, and it was not. The recording was provided as evidence to the Commission.
64 Transcript PN1204.
65 Transcript PN1357-1387.
66 Exhibit A2 at [33].
67 Transcript PN1956.
68 Transcript PN2377.
69 Transcript PN2391.
70 Exhibit A3 at [8] and Attachment TB-3.
71 Ibid, Attachment TB-3.
72 Exhibit W6, Attachment IK-3.
73 Ibid, Attachment IK-4.
74 Ibid, Attachment IK-5.
75 Transcript PN420-426.
76 Transcript PN1396-1403.
77 [2015] FCA 1247 at [39].
78 See clauses 15.3-15.4 of Exhibit A1.
79 Exhibit W6, Attachment IK-12.
80 Ibid.
81 Transcript PN2377.
82 Transcript PN8.
83 ExhibitW6, Attachment IK-12.
84 Ibid, Attachment IK-9.
85 Ibid, Attachment IK-10.
86 Ibid, Attachment IK-11.
87 Ibid at [9] and Attachment IK-12.
88 Ibid, Attachment IK-1.
89 Transcript PN2342.
90 Exhibit W6, Attachment IK-3.
91 Ibid, Attachment IK-4.
92 Ibid, Attachment IK-5.
93 Transcript PN349-419.
94 Exhibit W6, Attachment IK-8.
95 Ibid, Attachment IK-10.
96 Ibid, Attachment IK-11.
97 Transcript PN420-426.
98 Transcript PN1396-1403.
99 [2017] FWCFB 3005.
100 Applicant’s Outline of Submissions at [16]-[18].
101 Exhibit W6 at [22]-[23].
102 Exhibit W2.
103 Transcript PN2349.
104 Transcript PN2348.
105 Exhibit A4.
106 Transcript PN1594-1598.
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