Szabo v St Michael's Association Inc
[2018] FCCA 1547
•26 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZABO v ST MICHAEL’S ASSOCIATION INC | [2018] FCCA 1547 |
| Catchwords: INDUSTRIAL LAW – Adverse action – termination of employment – protected workplace rights – reverse onus of proof. |
| Legislation: Fair Work Act 2009, ss.12, 340, 341, 342, 343, 360, 361 Workers Rehabilitation and Compensation Act 1988 (Tas), ss.143D, 143E, 143L |
| Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Construction, Forestry, Mining and Energy Union v BHP Coal Proprietary Limited (2014) 253 CLR 243 Ermel v DuluxGroup (Australia) Pty Ltd (No.2) [2015] FCA 17 [48] |
| Applicant: | CHRISTINE SZABO |
| Respondent: | ST MICHAEL'S ASSOCIATION INC |
| File Number: | LNG 71 of 2016 |
| Judgment of: | Judge Baker |
| Hearing dates: | 15 February 2018, 16 February 2018 |
| Date of Last Submission: | 16 February 2018 |
| Delivered at: | Hobart |
| Delivered on: | 26 June 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Szabo in Person |
| Solicitors for the Applicant: | N/A |
| Counsel for the Respondent: | Mr Green |
| Solicitors for the Respondent: | Dobson Mitchell Allport |
ORDERS
The Application filed 17 November 2016 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT HOBART |
LNG 71 of 2016
| CHRISTINE SZABO |
Applicant
And
| ST MICHAEL'S ASSOCIATION INC |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant commenced employment with the respondent on 17 March 2015. The respondent terminated the applicant’s employment on 13 July 2016. The respondent is a not-for-profit non-government organisation which provides accommodation and support for people with intellectual and physical disabilities.
The applicant was employed as a Level 3 Disability Support Worker (Team Leader) on a full-time basis of 38 hours per week. Her position description indicates that her key tasks and duties were as follows:
·Lead staff to comply with procedures and policies of the organisation
·Provision of support services to clients in line with their personal care plans
·Taking overall responsibility for the personal care of clients; training, co-ordinating and supervising other employees and scheduling work programs; and assisting in liaison and co-ordination with other services and programmes.
·Ensure, through leadership, that the service provided is in keeping with the rules of the community, the Disability Service Standards and the policies and procedures of the Organisation.
·Development of program of daily activities for clients that provide the opportunity for the clients to meet their goals documented in their personal care plans
·Identification and management of staff needs, skills and performance
·Documenting, monitoring and updating client car plans and assessing whether clients are achieving their documented goals.[1]
[1] Applicant’s Additional Documents filed 21 November 2016, Annexure B.
The Applicant’s Case
In summary, the applicant claimed that, in contravention of s.340(1) of the Fair Work Act 2009 (Cth) (‘FW Act’), she was dismissed by the respondent because she had various workplace rights; she exercised various workplace rights; she proposed to exercise various workplace rights; and to prevent her from exercising various workplace rights.
The alleged workplace rights included making requests about pay increases, making complaints about bullying and client safety issues, and claiming workers compensation.
She is seeking reinstatement of her employment, compensation for lost wages, and $75,000 for hurt, distress and humiliation. She also seeks interest on compensation and penalties.
The Respondent’s Case
The respondent denied that it terminated the applicant’s employment for the reasons she alleged. The respondent’s case is that the applicant’s employment was terminated on the basis of the findings of an investigation undertaken during the period 9 – 15 June 2016 regarding a medication error made by the applicant on 6 June 2016 and her failure to report it.
Documents and Evidence relied upon
The applicant relied upon the following documents:
a)Application filed 17 November 2016;
b)Form 2 filed 17 November 2016;
c)Additional Evidence filed 23 November 2016;
d)Points of Claim filed 26 May 2017;
e)Affidavit filed 20 July 2017;
f)Affidavit of reply filed 13 October 2017; and
g)Outline of Argument filed 1 February 2018.
The respondent relied upon the following documents:
a)Response filed 24 February 2017;
b)Points of Defence filed 23 June 2017;
c)Affidavit of John Gilpin filed 8 September 2017; and
d)Outline of Argument filed 5 February 2018.
Both parties annexed documents to their affidavits. There were no objections to these documents being read into evidence.
Credit of the Applicant and Mr John Gilpin
The applicant focussed on her belief that she had been treated unfairly. She was intent on proving her claim about the lack of seriousness of the medication error made by her, asserting it was a work performance issue, rather than the issue of her failure to report the medication error. She was also intent on giving evidence about the conduct of other staff members. She focussed on her complaints, and did not address the failure to report the medication error.
During cross-examination, the applicant contradicted herself at times. For example, she denied that, prior to attending a meeting on 14 June 2016, she had a letter advising her of the allegations made against her. She said ‘all I got was a document to say I had a meeting on a particular date… I didn’t get any other information.’ She was then shown a letter written on 8 June 2016 (incorrectly dated 8 July 2014), which contained the allegations. She then agreed that she received this letter and that she attended the meeting on 14 June 2016 as result of receiving the letter. I do not consider that she was untruthful, however she was not an impressive witness.
Mr John Gilpin (‘Mr Gilpin’), the CEO of the respondent, was an impressive, honest and credible witness. He was responsive and forthright in answering questions from the applicant, notwithstanding much repetitive questioning. I consider that his evidence was reliable.
Legislative Provisions
Part 3-1 of the FW Act provides for general protections in the work place for employees.
Section 340 of the FW Act provides:
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Workplace Rights
The meaning of ‘workplace right’ is provided in s.341 of the FW Act:
341 Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.
Meaning of process or proceedings under a workplace law or workplace instrument
(2) Each of the following is a process or proceedings under a workplace law or workplace instrument:
(a) a conference conducted or hearing held by the FWC;
(b) court proceedings under a workplace law or workplace instrument;
(c) protected industrial action;
(d) a protected action ballot;
(e) making, varying or terminating an enterprise agreement;
(f) appointing, or terminating the appointment of, a bargaining representative;
(g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
(h) agreeing to cash out paid annual leave or paid personal/carer’s leave;
(i) making a request under Division 4 of Part 2‑2 (which deals with requests for flexible working arrangements);
(j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k) any other process or proceedings under a workplace law or workplace instrument.
Prospective employees taken to have workplace rights
(3) A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.
Note: Among other things, the effect of this subsection would be to prevent a prospective employer making an offer of employment conditional on entering an individual flexibility arrangement.
Exceptions relating to prospective employees
(4) Despite subsection (3), a prospective employer does not contravene subsection 340(1) if the prospective employer makes an offer of employment conditional on the prospective employee accepting a guarantee of annual earnings.
(5) Despite paragraph (1)(a), a prospective employer does not contravene subsection 340(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of Part 2‑8 or 6‑3A (which deal with transfer of business).
Section 12 of the FW Act provides the meanings of ‘workplace instrument’ and ‘workplace law’:
workplace instrument means an instrument that:
(a) is made under, or recognised by, a workplace law; and
(b) concerns the relationships between employers and employees.
workplace law means:
(a) this Act; or
(b) the Registered Organisations Act; or
(c) the Independent Contractors Act 2006; or
(d) any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).
Adverse Action
Section 342(1) item 1(a) of the FW Act provides:
342 Meaning of adverse action
(1) The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action
Item
Column 1
Adverse action is taken by ...
Column 2
if ...
1
an employer against an employee
the employer:
(a) dismisses the employee; or
Reverse Onus
The onus is on the employer to establish that adverse action was not taken for the prohibited reason alleged. If the onus is not discharged, it is assumed that the action was taken for the prohibited reason alleged. Sections 360 and 361 are the relevant provisions of the FW Act. Section 360 provides:
Multiple Reasons For Action
For the purposes of this Part, a person takes action for a particular reason if the reasons for that action include that reason.
Section 361 provides:
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 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.
Discussion
Counsel for the respondent cited the High Court decision of Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 (‘Barclay’), which deals with Part 3-1 of the FW Act and the operation of ss.360 and 361.
In Barclay,[2] the High Court emphasised that it is a question of fact as to why the relevant action was taken, and that the inquiry is not to be approached on an ‘objective’ basis. If direct testimony from the relevant decision maker that he or she did not act for a prohibited reason is accepted as reliable, it will be capable of discharging the burden of proof imposed by s.361.
[2] (2012) 248 CLR 500.
Counsel for the respondent also cited the decision of Victoria v Grant,[3] in which the Full Court of the Federal Court of Australia referred to the principles which were established in Barclay[4] and reaffirmed by a majority of the High Court in Construction, Forestry, Mining and Energy Union v BHP Coal Proprietary Limited,[5] stating:
[3] [2014] FCAFC 184.
[4] (2012) 248 CLR 500.
[5] (2014) 253 CLR 243.
Relevantly, these authorities establish that:
· The central question to be determined is one of fact. “Why was the adverse action taken?”
· That question is to be answered having regard to all the facts established in the proceeding.
· The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason has subconsciously influenced the decision-maker. Nor should such an enquiry be made.
· It will be “extremely difficult to displace the statutory presumption in s361 if no direct testimony is given by the decision-maker acting on behalf the employer.”
· Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
· If, however, the decision maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s361
Barclay at 517; 456-457 (French CJ and Crennan J); 542; 476-477 (Gummow and Hayne JJ); 545-546; 479-480 (Heydon J) and CFMEU at [19]-[22] (French CJ and Kiefel J); [85]-[89] (Gageler J).[6]
[6] [2014] FCAFC 184 [32].
If the applicant proves that she had, exercised, or proposed to exercise workplace rights and that adverse action was taken against her, the respondent must displace the presumption in s.361 of the FW Act that it took adverse action for the prohibited reasons that the applicant asserts motivated it.
The respondent accepted that adverse action was taken against the applicant when it dismissed her. I discuss the issue of her workplace rights and the respondent’s position further in these reasons.
The Court has to determine whether the respondent has discharged its onus under s.361 to disprove that it dismissed the applicant for the reasons referred to at [3]. The issue to be determined is not whether she was unfairly dismissed or treated unreasonably.[7] The proceedings are not an inquiry into whether the applicant ‘has been subject to a procedurally fair or substantially unfair outcome.’[8]
[7] See Fassina v Commercial Motor Industries Pty Ltd [2016] FCCA 2114 [61] (Judge Brown), quoting Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740 [16] (White J).
[8] Fassina v Commercial Motor Industries Pty Ltd [2016] FCCA 2114 [62] (Judge Brown), quoting Ermel v DuluxGroup (Australia) Pty Ltd (No.2) [2015] FCA 17 [48] (Bromberg J).
Summary of Events
The following is a summary of the chronology of events, which is uncontroversial, and taken from the evidence of Mr Gilpin.
On 6 June 2016, a medication error was made by the applicant when administering medication to a client.
The applicant failed to report the error. Management became aware of the error because a parent of the client reported it at a meeting on 8 June 2016. The meeting was attended by Mr John Schade (‘Mr Schade’), the Operations Manager, Mr Donald Richards (‘Mr Richards’), the Disability Services Clients and Participants Manager, Ms Bev Wallace, a support worker, and Ms Anita Hefford, the parent of a client of the respondent.
On 8 June 2016, the applicant was informed by letter (incorrectly dated 8 July 2014) from Mr Schade, about allegations in respect of a medication error. She was stood down on full pay, so the allegations could be investigated.
The applicant was asked to attend a meeting on 14 June 2016. She was informed that she could take a support person of her choosing to the meeting.[9]
[9] Affidavit of John Gilpin sworn 8 September 2017, Annexure B.
The applicant attended the meeting on 14 June 2016 with Mr Schade and Mr Andrew Gower (‘Mr Gower’), the Corporate Services Manager. The applicant admitted that:
i)on 6 June 2016 she made a medication error in respect of Logan Hefford (‘Logan’);
ii)on 6 June 2016, she told Logan’s parent, Ms Anita Hefford (‘Ms Hefford’), that she would report the medication error; and
iii)she did not report the medication error, and this was an oversight.
At the meeting, the applicant denied that she asked Ms Hefford not to disclose information to the respondent about the missed medication.[10]
[10] Ibid Annexure C.
At the meeting, the applicant pointed out that the policy was that the person who discovers the error should report it. After this was raised by the applicant, Ms Yasmin Duyst (‘Ms Duyst’), an employee support worker, attended a meeting with Mr Schade, and Mr Gower on 15 June 2016.
At the 15 June 2016 meeting Ms Duyst reported that she discovered the medication error made by the applicant on 6 June 2016. Ms Duyst was advised by the respondent to complete a medication error report that night.[11]
[11] Ibid Annexure D.
In her medication incident report dated 15 June 2016, Ms Duyst wrote that she discovered the medication error made by the applicant on 6 June 2016. She wrote that she informed the applicant, who told her she would ‘sort it out’.
On 14 June 2016, the applicant wrote to Mr Gilpin requesting a meeting with him to discuss several issues regarding breach of policy and procedure/bullying behaviour.[12]
[12] Ibid Annexure L.
On 15 June 2016, Mr Gilpin responded stating that he would look at the concerns she had raised in due course. He wrote that he would inform her of the next stage of the process when he had all of the information.[13]
[13] Ibid Annexure M.
On 16 June 2016, Mr Gilpin wrote to the applicant to inform her of the outcome of the investigation and to inform her that she had a case to answer. He told her that he would need to apply the respondent’s staffing policy and would write to her in due course.
On 16 June 2016, the applicant requested a workers compensation claim form. Mr Gilpin wrote to her in response on 16 June 2016. On the same day, the applicant lodged a workers compensation claim, alleging stress and anxiety. She commenced leave on workers compensation from 16 June 2016.
On 17 June 2016, Mr Gilpin wrote to the applicant asking her to show cause why her employment should not be terminated. She was requested to provide a written response by 21 June 2016. She asked for an extension and was given until 22 June 2016 to respond.
The applicant responded to Mr Gilpin’s 17 June 2016 letter in two emails dated 22 June 2016.
On 22 June 2016, Mr Gilpin wrote to the applicant and acknowledged receipt of her response to his letter requesting why her employment should not be terminated. He informed her that he would be reviewing the information received and would notify her of the respondent’s decision regarding her employment shortly.
On 13 July 2016, the Workers Rehabilitation and Compensation Tribunal (‘the Tribunal’) issued an order that a reasonably arguable case existed that weekly payments to the applicant should cease.
On 13 July 2016, Mr Gilpin wrote to the applicant to inform her that her employment was terminated.
The Applicant’s Evidence
The applicant deposed that the real reason her employment was terminated was because Mr Gilpin did not want to address the many serious complaints and enquiries raised via email over a period of four weeks between 14 June 2016 and 12 July 2016. She deposed:
Rather than the employer and the CEO having to deal with all the contents of these complaints and enquiries made by the applicant and the negative implications this would have had on the organisation and its staff, the employer chose to ignore them and dismissed the applicant unlawfully (because of these workplace rights). The applicant was also on temporary sick leave and absence of work at the time of the dismissal.[14]
[14] Affidavit of Christine Maree Szabo sworn 13 October 2017 [1].
During cross-examination, the applicant was asked whether she agreed that at the meeting on 14 June 2016, she provided responses to the allegations contained in the letter written on 8 June 2016 (incorrectly dated 8 July 2014) from Mr Schade. She answered, ‘I wasn’t given any information to read. I only sort of got this later on… The notes from the meeting…’ She then agreed that she responded to each of the allegations made against her and added ‘and that was without the actual letter where the complaint came from… there was a meeting with the participant’s mother.’ When asked whether she understood the allegations, she said, ‘and I answered the allegations.’
During cross-examination, the applicant confirmed that she admitted to the medication error at the meeting on 14 June 2016. She agreed that she told Ms Hefford that she would record the error. She denied that she covered up the medication error because she admitted to the error at the time. She said the failure to report the error was an:
‘oversight’... I knew I made the error at the time because that was when the floods were on… it was chaotic... I knew I made the error and… there’s no hiding it. I made an error. It was just a morning pill instead of a night-time pill and there was no harm because it was in the morning and the mother came in at night they went off home because it was floods… And the next day I couldn’t even get to work till about 8 o’clock because of the water over the road. So there were lots of circumstances that prevented me from even thinking about a medication error because I was involved with clients who had knives… I worked on my own in the morning. There were just lots of other issues that weren’t even brought up to even counterbalance the result of what I got…
During cross-examination, counsel for the respondent referred the applicant to the notes of the 14 June 2016 meeting, which were made by Mr Schade and signed by him and Mr Gower:
‘…In regard to allegation number two made by the parent, Christine denied that she asked the parent to not disclose information to St Michael’s about the missed medication and that she did communicate to the parent that she would fill out a medication incident form to advise management of the oversight. The medication error was never completed and St Michael’s management were only aware of the error due to the parent’s complaint…’
In her amended statement of claim, the applicant relied on the meeting notes in respect of her verbal complaint of being bullied at a meeting, and in respect of her statement that there were medication errors that were serious in nature and were ongoing and needed to be addressed. However, when she was asked whether the notes were an accurate statement of the meeting, she firstly said that they did not ‘capture her recollection’ of what was discussed. ‘There’s a lot of things that aren’t right in that…’ She then said, that to the extent that the document notes she raised a number of concerns at the meeting, it was accurate. She said that she brought up issues of other people making medication errors, including John Schade. She then said some of this was not accurate, and that she did have concerns about other people making medication errors.
When asked what was incorrect about the 14 June meeting notes, the applicant answered, ‘well I didn’t sign these.’ She then said, ‘I don’t agree with everything.’ She then raised the email she sent to Mr Schade regarding the incident involving Mr Richards and bullying issues.[15] She said that Mr Schade said he had a quick look at it, and he then disregarded it. She said the way the meeting was ‘done,’ it was obvious to her that they did not want to listen to her. She deposed that they did not want to bring up her concerns about following policy and procedure.
Just the responses I got, I just knew that I wasn’t being treated the same as an employee as per the grievance process by listening… and being able to put my point of view across. And it – and it does say in there that they did, basically, ignore some of the things I said.
[15] Affidavit of Christine Maree Szabo sworn 19 July 2017, Annexure K (email dated 14 June 2016).
Prior to writing to Mr Gilpin on 22 June 2016, the applicant had been provided with the notes made by Mr Schade of the meeting held on 8 June 2016. These notes were signed by each person who attended the meeting.
None of the people who attended the 8 June 2016 meeting were called to give evidence on behalf of the respondent. The applicant criticised the failure of the respondent to call them to give evidence. I discuss this further in these reasons.
On 22 June 2016, the applicant sent two emails to Mr Gilpin in response to his letter dated 17 June asking her to show cause why her employment should not be terminated. She sent one email to Mr Gilpin at 3:26 a.m. on 22 June 2016.[16] The other email was sent at 10:35 a.m.[17]
[16] Ibid Annexure O.
[17] Affidavit of John Gilpin sworn 8 September 2017, Annexure I.
In her first email dated 22 June, the applicant replied to Mr Gilpin:
Reply to Reason not to be dismissed
… .This medication incident relates not to conduct but capacity to do the job (work performance) I have admitted to the medication error. The medication error is not serious misconduct as defined under the Fair Work (Read attachment). This criteria must then follow the Small Business code to be enforced if the breach is proven. I do admit to the medication error which caused no visible harm to the client as witnessed by myself and no harm claimed or written from Logan or his mother. There is no witness statement from Logan’s mother but a statement of a meeting that was held in St Michael’s office with all persons signing their attendance. This is not credible evidence and not a witness statement…
The applicant then made allegations about a medication error by Mr Schade and requested Mr Gilpin to investigate the matter. She also wrote,
I do want to keep my job and I am happy to discuss my concerns that are occurring at St Michael’s with the objective of making all staff able to do their job without fear of reprisal from management which I know is happened at this time and has been for quite a while. I do want to fix these concerns without any person getting into trouble…
In the applicant’s second email dated 22 June 2016 she wrote,
…the PSER05 Managing Staff Administered Medication Errors Policy and Procedure” is the relevant policy for action to implement. There are 5 indicators written. The policy aims to eliminate errors. This is not a realistic expectation (see policy) and puts enormous undue strain on any staff member tried to fill this expectation. I could only speculate that this type of unrealistic expectation from management regarding medication errors may be a disincentive for staff to put in incident forms of any type. I also told John at this meeting that at Kenneth Court all staff working there seem to be too scared to put in an obvious error that have been happening since I have been there. I have evidence to that fact. I did tell John there appears to be a culture of fear at St Michael’s and fear of addressing this error that is possibly serious in nature. A staff member should not feel they cannot fill in incidents without fear of dismissal. Many are aware of why I have gone and why other staff are gone. The aim of WHS act is to address and eliminate incidents for continuous improvements. Attributing blame with a purpose to punish harshly is not realistically going to fulfil this legal obligation. I would not class my incident to be relevant to this policy criteria – my situation – not done in a criminal deliberate or malicious manner (not proven on the balance of probabilities – standard of proof) – adverse events follow other similar incidents of a similar nature… (not relevant). I challenge the credibility of Andrew Gower and John Schade’s statement – not witness statements – challenge its credibility – question – collaboration, bias – conflict-of-interest selective information written – two persons writing the same information. I asked for their original notes written at the time. (PLEASE TELL JOHN SCHADE AND ANDREW GOWER TO KEEP THEIR NOTES AT THE TIME)...
This medication incident relates not to conduct but capacity to do the job (work performance) I have admitted to the medication error. The medication error is not serious misconduct as defined under the Fair Work Act (read attachment). This criteria must then follow the Small Business Code to be enforced if the breach is proven. I did admit to the medication error which caused no visible harm to the client as witnessed by myself and no harm claimed or written from Logan or his mother. There is no witness statement from Logan’s mother but a statement of a meeting that was held in St Michael’s office with all persons signing their attendance. This is not credible evidence and not a witness statement…
The applicant’s position was therefore that there was nothing justifying her dismissal for serious misconduct for making a medication error. She pointed to an identical medication error made by another staff member that was treated as a work performance issue, with a warning given. The employee was not dismissed. She asserted that the investigation was flawed and was not conducted in accordance with the respondent’s ‘Medication Error Policy and Procedure’. Although there was no witness statement from the participant’s parent, Ms Hefford, she did not dispute that she told Ms Hefford that she would report her medication error.
The applicant deposed:
The applicant admitted to the medication error so this policy should have been used to determine outcome of breach. The CEO stated the medication error was “Serious Misconduct” without any factual evidence of a policy to support that definition. There is no interpretation in this policy that defines a medication error as “Serious Misconduct” but implies a work performance issue which if relevant to the criteria in this policy, education and training is needed and possibly a warning given to the applicant. The medication error policy also states that if there is no potential harm to the client and the errors are minor ensuring procedure within the document will occur which was linked to medication retraining for the applicant. There was no evidence of harm indicated in the medication incident form filled in by support worker Yasmin Duyst on the 15.06.16.[18]
[18] Affidavit of Christine Maree Szabo sworn 13 October 2017 [4]-[5].
Ms Duyst was not called to give evidence by the respondent. However, the applicant did not dispute the contents of her medication incident report. She relied on this report in support of her argument that there was no evidence of harm to the client indicated in the report.[19]
[19] Ibid Annexure 1A.
The report reads:
Medical interventions required (please tick) - nothing was ticked.
Medication Involved
Medication name Dose Time to be given
Catapres 150mg x2 Bedtime
Concerta 36mg x2 800 am
Nature of the incident
Night medication (catapres) had been given by morning staff (Christine Szabo) instead of morning medication (concerta).
Steps Taken
1. I went to give Logan medication to his mother as he was going home with her for three days.
2. I realised catapres (bedtime med) had been given to Logan by mistake.
3. Noticed concerta (morning med) still in webster pack.
4. Informed T/L Christine Szabo of error who informed me she would sort it out.
Manager’s Directions
Investigation underway.
Parent interviewed after formal complaint.
CS stood down on pay.
YD advised further action will be taken after investigation complete.
Follow-up required
Staff (signature) signed Date 15 .6.16 signed16/6/16
Incident resulted in Determination of serious misconduct and Misconduct resulting in Termination
Manager (signature) signed Date 13/7/16
Evidence of Mr John Gilpin
Mr Gilpin deposed that he was responsible for the decision to terminate the applicant’s employment. He gave evidence that the respondent’s Board has delegated to him the authority to make decisions on misconduct, which is in the guidelines and procedures regarding medical administration, including guidelines regarding reporting requirements. A failure to report is covered by the disciplinary policy
In the defence and points of defence, the respondent asserted that one of the reasons the applicant was dismissed was because she recorded false information in the records of the respondent. During cross-examination, Mr Gilpin explained as far as the respondent is concerned, the act of not reporting a medication error is false information in the records. He agreed that this means a failure to report.
He deposed that his decision to terminate the applicant’s employment was based on the following conclusions:
a)the applicant failed to advise that she made a medication error;
b)the applicant engaged in conduct which caused imminent and serious risk to the health and safety of a person;
c)the applicant engaged in conduct which caused imminent and serious risk to the reputation, viability or profitability of respondent;
d)the applicant was aware of her obligation to report a medication error;
e)the applicant did not provide a reasonable response, when initially asked about the medication error, as to why it was not reported;
f)the applicant did not subsequently explain why the medication error was not reported;
g)the applicant did not demonstrate any willingness to acknowledge or accept any responsibility for her serious misconduct and the impact it had on the respondents duty of care obligations and the operation of the business;
h)the applicant did not demonstrate any remorse for her actions.[20]
[20] Affidavit of John Gilpin sworn 8 September 2017 [14].
Mr Gilpin said that misconduct may lead to termination of employment, depending on the seriousness of the incident. He said that it is deemed serious to the reputation of the respondent that a team leader made a mistake administering medication, and then did not report it. He said that only in disability support organisations can support workers administer, through training, certain levels of pharmaceuticals. If the respondent were to lose its accreditation to do this, and had to employ enrolled nurses or registered nurses, it would not be able to provide a service to Tasmania.
So it’s critically important that our support people are trained and they understand our guidelines. And it’s more important that our team leaders role model the expectation of what is fair administration of medication. And I believe Ms Szabo, through her acknowledgement, failed to do so, failed to report, putting the organisation at extreme risk. In her role as team leader it was untenable that she should remain at St Michael’s.
Mr Gilpin gave evidence that the applicant’s employment was terminated on the basis of an investigation which was conducted from 9 June until 15 June 2016.
After the meeting on 8 June 2016, Mr Schade wrote a letter to the applicant advising her that she was stood down on full pay, pending the outcome of an investigation. The applicant was handed the letter on 9 June 2016.[21]
[21] Ibid Annexure B.
The letter detailed the allegations as follows:
…you may have administered medication incorrectly to a participant under your care. Our understanding is you admitted to the error and indicated you would do a report.
Further to the alleged error we have been unable to locate a medication incident report from you and have been unable to find any record at Merton House or St Michael’s office to indicate any error was made.
In addition further allegations have been put to us:
1. A parent alleges she was actively discouraged to report matters to senior staff at St Michael’s.
2. A parent alleges you have provided negative advice towards a participant’s medication and discouraged obtaining advice from medical practitioners.
These are most serious allegations and require we conduct an investigation.
We will stand you down on pay while these allegations are investigated…[22]
[22] Ibid.
The applicant was informed that she could bring a support worker to the meeting on 14 June 2016, but she attended without one.
The applicant admitted that on 6 June 2016 she made a medication error in respect of Logan; that she told Logan’s parent, Ms Hefford, that she would report the medication error; and that she did not report the medication error, and this was an oversight. She denied that she asked Ms Hefford not to disclose information to the respondent about the missed medication.[23] She pointed out that the policy was that the person who discovers the error should report it.
[23] Ibid Annexure C.
On 14 June 2016, the applicant wrote to Mr Gilpin requesting a meeting with him to discuss several issues regarding breach of policy and procedure/bullying behaviour.[24]
[24] Ibid Annexure L.
On 15 June 2016, he responded stating that he would look at the concerns she had raised in due course, but that she was stood down while an investigation was conducted into the allegations made by a parent, of which she had been informed. He wrote that she had been interviewed and the two managers would advise him of her responses to the allegations. He wrote that he would inform her of the next stage of the process when he had all of the information.[25]
[25] Ibid Annexure M.
As a result of the applicant stating the policy was that the person who discovers an error should report it, on 15 June 2016, a meeting was held between Mr Shade, Mr Gower and Ms Duyst, to discuss the failure to lodge a medication incident report. Ms Duyst advised that the applicant was going to lodge the medication error, but this was not done. Ms Duyst was advised at this meeting to complete a medication error report.[26]
[26] Ibid Annexure D.
Mr Gilpin wrote a letter to the applicant dated 16 June 2016 in which he described the outcome of the investigation that she had a case to answer. [27] He wrote:
[27] Ibid Annexure E.
…In reviewing all the information related to this incident I have made the following determinations:
(1) That it is more probable than not that you have administered medication incorrectly to a participant under your care at Merton House on or around 6th of June 2016 at 22 Hoblers Bridge Road, Newstead.
a. I reached this conclusion because:
i. Your acknowledgement at the meeting held on the 14th of June 2016 where you did not deny this fact.
ii. Information received from the parent of the participant concerned – Anita Hefford.
iii. Information from our Support Worker Yasmin Duyst.
(2) That it is more probable than not that you may have actively discouraged a parent to report matters to senior staff at St Michaels at Merton House on or around 6th of June 2016 at 22 Hoblers Bridge Road, Newstead.
a. I reached this conclusion because:
i. Even though you deny this fact you failed to notify management through our medication error incident reporting procedure.
ii. Even though you deny this fact you advised the parent that you would notify management through our medication error incident reporting procedure and you failed to do so.
iii. Even though you deny this fact you advised Yasmin Duyst that you would notify management through our medication error incident reporting procedure and you failed to do so.
iv. Statements from Anita Hefford and Yasmin Duyst.
(3) That it is more probable than not that a parent alleges you have provided negative advice towards a participant’s medication and discouraged obtaining advice from medical practitioners at St Michaels at Merton House on or around 6th June 2016 at 22 Hoblers Bridge Road, Newstead.
a. I reached this conclusion because:
i. Even though you deny this fact you failed to notify management through our medication incident reporting procedure.
ii. Even though you deny this fact you advised you advised the parent that you would notify management through our medication error incident reporting procedure and you failed to do so.
iii. Even though you deny this fact you advised Yasmin Duyst that you would notify management through our medication error incident reporting procedure and you failed to do so.
iv. You have failed to disclose any matter of this incident when you have known to do so as part of your role, advised a parent that you would but didn’t and advised a staff member you would but you didn’t putting at risk a participant’s health in the failure to give correct medication and post medication support.
v. Statements from Anita Hefford and Yasmin Duyst...[28]
[28] Ibid Annexure E.
The applicant commenced leave on workers compensation from 16 June 2016.
On 17 June 2016 at 10.45 a.m., Mr Gilpin wrote an email to the applicant outlining the process so far. He also explained, in answer to her query, that he had enclosed the signed allegation meeting notes (8 June), the notes of the meeting between the applicant, Mr Schade and Mr Gower (14 June), the notes of the meeting involving Ms Duyst (15 June), and the medication incident report. He informed her that the next letter to her would be asking her to respond in writing, showing just cause why the respondent should not terminate her employment. He wrote that ‘this is your chance to respond to these allegations…’[29]
[29] Affidavit of Christine Maree Szabo sworn 19 July 2017, Annexure Y.
Mr Gilpin then wrote a letter to the applicant on 17 June 2016 when he sought her response about why her employment should not be terminated.[30] The applicant was requested to provide a written response by 21 June 2016.[31] She asked for and was given an extension to 22 June 2016.
[30] Affidavit of John Gilpin sworn 8 September 2017. Annexure G.
[31] Ibid Annexure G.
Mr Gilpin said the purpose of the letter dated 17 June 2016 was for him to outline to the applicant the evidence that had been tabled to him. The applicant was then to respond: to indicate whether she accepted the case to answer, or whether she could demonstrate that he perceived the evidence incorrectly, and for her to show remorse. He received her answer on 22 June 2016. He received two emails from her. He said he could not make a final determination after receiving her information because that was superseded by the workers compensation claim made by the applicant.
Mr Gilpin responded to the applicant on 22 June 2016. He acknowledged receipt of her response to his last letter requesting just cause why her employment with St Michael’s Association Inc (‘STMA’) should not be terminated. He wrote that, with the information now received, he would review it and notify her in writing of STMA’s decision regarding her employment shortly. He wrote that he would be as fast as he could with the process.[32]
[32] Ibid Annexure J.
On 13 July 2016, the Tribunal issued an order that a reasonably arguable case existed that weekly payments to the applicant should cease.
Mr Gilpin deposed that, during the course of the assessment of the applicant’s workers compensation claim, the applicant sent him numerous emails in relation to a range of issues and concerns, (the alleged workplace rights). She enclosed receipts for medical expenses and requests for reimbursement. Mr Gilpin considered each of the emails and their contents, but he wanted to make sure the investigation process and the workers compensation process were kept separate. He deposed that he delayed a decision with respect to the applicant’s employment while the workers compensation claim was being assessed by the respondent’s insurer.
Mr Gilpin gave evidence that the medication error made by the applicant and her failure to report it amounted to misconduct. The applicant knew that she needed to report the error, but did not do so, even though she indicated that she was taking ownership of the reporting. The reporting of the medication error, if done, would have led to other disciplinary action. The non-reporting put the reputation of the respondent’s professionalism at risk.
Mr Gilpin said that the applicant had an opportunity on 14 June to let the respondent know what had happened. She had an opportunity to explain in her response and to show cause why the respondent should not terminate her employment. He pointed out that the applicant did not do this on any occasion.
Mr Gilpin explained that the applicant did not address the incident that put a person’s health and well-being and the respondent’s reputation at risk. She did not address the non-compliance of her duty of care and of not reporting the error. She did not address the allegation of actively discouraging a staff member and a family member not to report the error, and of not following the procedures by not telephoning Poisons Tasmania.
Mr Gilpin gave evidence that as part of the medication policy, if medication is not given or is incorrectly given, one of the respondent’s core responsibilities is to telephone Poisons Tasmania and obtain advice. If nobody telephones Poisons Tasmania to determine if there is any detrimental effect of either giving or not giving medication, or giving the wrong dosage at the wrong time, then the respondent is derelict of a duty of care to that particular participant.[33]
[33] Transcript of Proceedings, 15 February 2018, 70.
Mr Gilpin said that a combination of the applicant’s inactivity in her role as team leader; her lack of response on her last opportunity to explain how she would address the matter; and how the respondent would help her address the matter, led him to his decision. She said, ‘I don’t have an answer.’ On the evidence he had to go to termination.
…On the incident that occurred and the series of events around that incident… if it was one incident by itself, purely medication and you acknowledged it, there may have been a different result. But there was a series of events that affects the reputation and care of our vulnerable people.[34]
[34] Ibid 76.
Mr Gilpin gave evidence that all medication errors are assessed on their merits and, depending on the outcome, there are certain levels of policy and procedures:
The seriousness of medication error is compounded by the fact that the team leader displayed poor judgment in not submitting a report, which is mandatory in our process, which adds to the weight of the medication error… Determining whether there was harm, medication errors on any nature are a serious nature of which we must look to Poisons and to make sure that the health and well-being of our participants are maintained. I have no evidence… that this was done. All I have, evidence that the report wasn’t put in. Two people have said that Christine Szabo would put in a report with a medication error and did not do so. So it was a series of events that elevates it from where you may determine that it is misconduct to serious misconduct, because it… takes away the professionalism of our organisation and therefore put St Michael’s Association at risk of losing its medication accreditation for support workers, and therefore we would not be viable if we had to pay for enrolled nurses. So there is professional damage, and the seriousness is a series of events rather than one particular event.[35]
[35] Transcript of Proceedings, 16 February 2018, 91.
Mr Gilpin believed that the applicant’s failure to report the medication error was deliberate. He said:
laws of probability is that you made a deliberate act to conceal the actual medication error… in my determination you’ve had gross carelessness for a role of the team leader given that you know and you’ve admitted … that you know you have to report incidents, and there are adverse events to the very nature of what we do by looking after vulnerable and marginalised and disabled Tasmanians. It’s our job to protect them, and you failed in your duty.
In respect of the applicant’s criticism that the respondent did not call Mr Gower or Mr Schade to give evidence, Mr Gilpin said in cross-examination that the information given to him by the applicant supported the information given to him during the investigation.
On 13 July 2016, Mr Gilpin decided that the applicant’s employment ought to be terminated. By letter dated 13 July 2016, he wrote a letter to the applicant setting out the reasons for her termination. This included:
my decision to terminate your employment has been based upon conclusions I have summarised below:
· You have advised that you made the medication error.
· Conduct that causes imminent and serious risk to the health and safety of a person.
· Conduct that causes imminent and serious risk to the reputation, viability or profitability of the Association.
· You have not adequately explained, in STMA’s opinion, why, in your initial response to the investigating officers, why the medication error was not reported.
· You have not adequately explained, in the STMA’s opinion, in your written just cause response letter, why the medication error was not reported.
· You have not adequately explained, in STMA’s opinion, why at no time during the period between incident occurring and the 8th of June did you raise an incident report or make any attempt to provide or request any advice as the alleged medication error given that two people Mrs Hefford and Yasmin Duyst both advise that you had advised them that you’re going to report this matter.
· The raising of incident reports as required by STMA and you have demonstrated your understanding of this requirement because you have previously raised other incident reports.
· You have not demonstrated any willingness to acknowledge or accept any responsibility for your serious misconduct and the impact it has had on our duty of care obligations and the business.
· You have not demonstrated any remorse for your actions.
· Given the information I have on this matter I can draw no other conclusion that you knowingly and purposely did intend not report this medication error about the participant on 6th June 2016 and between this date and the 8th of June 2016.
· Your position of Team Leader with STMA carries the highest level of support, care and trust obligations. Nothing in your response adequately explains to me how you would intend to recover the trust relationship that is critical between the Team Leader, participants, the parents/guardians and the various governing bodies and organisations.
· Equally as important is the trust relationship that must exist between STMA and you in your role as Team Leader, and nothing in your response adequately explains to me how you would recover that critical relationship to ensure that STMA is satisfied that you, acting on their behalf as the employee, were capable of consistently delivering the highest level of service, support and care to STMA’s valued participants and clients.
· Your ensuring actions clearly indicate to STMA that you have no intention of being bound by the terms and conditions of your employment contract, specifically those of good faith and fidelity. Therefore, as displayed by your actions, you have acted, in your own right and without coercion or duress from that STMA, to terminate your contract of employment with STMA.
Therefore, after much consideration I have determined that I have no option but proceed to termination of your employment as a result of your serious misconduct on 6th of June 2016 and misconduct between the 6th of June and the 8th of June 2016…
In summary, Mr Gilpin’s evidence was that the applicant was given an adequate opportunity to answer the claims alleged against her. She was informed of the allegations by letter on 8 June 2016. She was requested to attend a meeting on 14 June 2016 to discuss the allegations. She was informed by letter dated 16 June 2016 of the investigation outcome and that she had a case to answer. She was asked by letter dated 17 June 2016:
to show cause why her employment should not be terminated, given her serious misconduct, the failure to meet the respondent’s expectations, the unacceptable impact the incident has had on the business, and the duty of care obligations to participants.
She was advised to seek independent advice.
The applicant responded with lengthy emails on 22 June 2016. Mr Gilpin was of the view that she did not give any adequate explanation for not reporting the medication error.
During cross-examination, the applicant asked Mr Gilpin why it took three weeks for him to dismiss her. He answered:
I could not make a decision or impose a decision or do anything because my hands were tied because it was at… the Workers Compensation Tribunal being disputed by my insurance company that there was a legitimate claim…[36]
[36] Transcript of Proceedings, 15 February 2018, 65.
Mr Gilpin deposed that he delayed a decision about the applicant’s employment whilst the workers compensation claim was being assessed. He deposed that on or about 13 July 2016, when the Tribunal issued an order that a reasonably arguable case existed such that weekly payments should cease, he decided in light of the findings made by the investigation and the responses received by the applicant, that her employment ought to be terminated.
The workplace rights
The applicant alleged she was dismissed for the reasons referred to at [3], as detailed in the Amended Statement of Claim and her affidavit sworn 19 July 2017.
In the Points of Defence, the respondent denied that the applicant, in raising bullying and health and safety issues, was exercising workplace rights.
Counsel for the respondent was asked whether the 12 workplace rights referred to by the applicant were accepted by the respondent as workplace rights. He submitted that the respondent does not contest that an employee who makes an enquiry or a complaint about bullying or an entitlement under an enterprise agreement, or makes a workers compensation claim, is exercising a workplace right. It was submitted that there are some issues in the way the applicant has framed some of the allegations, such as the allegation that the employer was obliged to appoint a return to work coordinator, which is in itself not a workplace right. He concluded:
…the respondent is prepared to concede that those workplace rights, if they were exercised, with the caveat that some of them may not be workplace rights…all from the applicant’s allegations then tie into the decision to terminate…So, insofar as that may assist, then the respondent is content that the applicant has set out the matters that she says form the basis for her application…and that it all is tied to the decision to terminate her employment.
The following is a summary of the Amended Statement of Claim, the applicant’s evidence and the responses made by the respondent:-
(1) The applicant exercised a workplace right
On 26 April 2016, at a meeting with Mr Schade, she verbally enquired about her second year pay increment.
(2) The applicant exercised workplace rights
On 15 and 24 June 2016, the applicant sent emails to Mr Schade and Mr Gilpin requesting her second year pay increment. She did not receive a response.
Response to (1) and (2)
The respondent agreed that, at a meeting with Mr Schade in April 2016 and subsequently in emails dated 15 and 24 June 2016, the applicant made enquiries about her second year pay increment. The applicant’s manager did not consider that the applicant had reached the level of diligent service necessary to be entitled to progression pursuant to cl.24(v) of the Tasmanian Disability Services Industry Multi-Employer Enterprise Agreement 2011.
Mr Gilpin gave evidence that he became aware of her query about her pay entitlement when she put her submission in to Fair Work Australia. Subsequently, he reviewed all end of first year documentation and determined that due process had not occurred. As a result he signed off on the increment increase and paid the applicant all associated wages to which she was entitled.
Mr Gilpin denied that he dismissed the applicant because she made enquiries about her second year pay increment.
(3) The applicant exercised a workplace right
On 14 June 2016, the applicant sent a complaint to Mr Gilpin and Mr Schade by email with an attachment regarding health and safety issues. A request was made to Mr Gilpin to discuss issues of bullying /stalking/ breach of privacy and breaches of policy. She raised other issues relating to staff that needed to be discussed in more detail.
(4) The applicant exercised a workplace right
On 14 June 2016, the applicant made a verbal complaint of being bullied at a meeting. She stated that there were medication errors that were serious in nature and were ongoing which needed to be addressed. She stated that she would make a complaint about the bullying and would take the matter further if needed as she was not happy with the process of that meeting.
The applicant agreed during cross-examination that she received a letter written on 8 June 2016 from Mr Schade requesting her to attend a meeting, and that prior to the meeting, she sent Mr Schade an email about Mr Richards and bullying issues.
The applicant said that she raised her concerns about following policy and procedure and that she was not being treated the same as an employee as per the grievance process. She said: ‘I had evidence of John Schade making a medication error that could have caused a fatality. Comparing it with mine, I should have been treated as a performance issue and I should have got a warning.’
When the applicant was asked why she believed that the issues raised by her had any impact or influence on the decision to terminate her employment, she answered that after the meeting on 14 June, Mr Gilpin came to her home with a letter. She said:
it was done very, very quickly and it gave me an impression they were trying to get rid of me. All of it was done in such a hurry I went… on worker’s compensation because it was so stressful, and during that time John Gilpin came around… again with paperwork.[37]
[37] Ibid 27.
Response to (3) and (4)
Mr Gilpin denied that there was any connection between the applicant’s concerns regarding bullying raised by her in the 14 June 2016 meeting and in an email dated 14 June 2016, and the decision to terminate her employment.
Mr Gilpin agreed that he read the email dated 14 June 2016 on around 14 or 15 June 2016. He gave evidence that the incidents raised by the applicant were recorded to be dealt with. She was advised that the respondent would keep these separate from the investigation, and that the workers compensation would also be kept separate. He told her that he was concentrating on her investigation and that was his main focus for her personally.
(5) The applicant exercised a workplace right
On 16 June 2016, the applicant sent a written complaint to Mr Gilpin relating to issues of bullying and wanting the issues addressed. She stated that she would take the complaints to the Fair Work Commission and other organisations relevant to the concerns and not to ignore her.
The applicant believes that her email to Mr Gilpin dated 16 June 2016 influenced the decision to terminate her employment, because he did not respond to her. She said:
… the lack of response and the seriousness of these concerns that I have when we were in a working situation, it leads me to believe that’s why I was dismissed, because the CEO knows the policies, he knows the law and we have every legal obligation to bring up concerns. And failing to address these issues, especially when I said I have evidence … that’s a real concern.
(6) The applicant exercised a workplace right
On 22 June 2016, the applicant sent a written complaint/enquiry to Mr Gilpin about other health and safety issues related to medication errors by STMA’s staff members. She attached details of a serious medication error made by Mr Schade.
The applicant gave evidence that raising her concerns influenced the decision to terminate her employment because:
I brought up relevant issues and relevant law that should have happened in relation to my grievance or the complaint by following the grievance policy, by following the law under the Fair Work Act in relation to performance and conduct.
The applicant agreed that she also wrote about the Small Business Fair Dismissal Code, and that the medication error was not serious misconduct. She said:
I wrote that in response…because I knew…that they were trying to get rid of me and I probably put things in there to show them that I wasn’t being treated the same. I wanted to show them they weren’t following the law, they weren’t following the grievance policy…I put in another incidence of John Schade and evidence that what he did was serious misconduct.
(7) The applicant exercised a workplace right
On 23 June 2016, the applicant sent a written complaint/enquiry to Mr Gilpin about health and safety issues about her and about a staff member being physically assaulted.
She wanted to advise Mr Gilpin about issues of aggressive clients and assaults and concerns of sexual abuse that were ignored. She wanted him to be aware of these issues because she was not sure if he was aware of what was going on. ‘… I just wanted to make sure that he knew before they sacked me.’ [38]
[38] Ibid 33.
(8) The applicant exercised a workplace right
On 10 July 2016, the applicant sent a written complaint/enquiry to Mr Gilpin that related to another staff member’s medication errors.
She wrote an email about another staff member’s medication error to make the point that she was treated differently to that person. She said that her medication error was exactly the same as the other staff member’s and this was the second time they had made an error and they were still employed.
The applicant said that:
they wanted to get rid of me and having basically the same medication error, he would have to explain why, which he didn’t. It’s exactly the same circumstances. And the only thing that could have been different is if there was harm… There was no harm that was relayed in the incident report that I have… It wasn’t a conduct issue, it was a work performance issue, the same as mine.
(9) The applicant exercised a workplace right
On 12 July 2016, the applicant sent a written complaint/enquiry to Mr Gilpin regarding her concerns of restricted practice and possible abuse on clients. The applicant had a responsibility under workplace law to cooperate with reasonable policies and procedures of STMA relating to health and safety, one being the ‘Grievance Policy’ where complaints would be documented and addressed by management in an appropriate and timely manner.
The applicant said that a staff member sent her documents about Mr Richards and she forwarded them to Mr Gilpin and to a number of other persons. When asked why she believed the email influenced the decision to terminate her employment, she answered:
I think still the concerns are very serious and I just don’t think they wanted to deal with it because Donald Richards has been there – I know he was a bully and I just know he… Wasn’t a nice person and… I didn’t think he had done his job in an ethical or competent way… But I just think because he has been there a long time they didn’t want to address the issues with him… I just wanted to make sure that someone – because I really don’t know if John Gilpin was aware of it. So I just wanted to make sure that he was aware.
Response to (5)-(9)
Mr Gilpin denied that there was any connection between the applicant raising health and safety concerns and risks, including references to policies and procedures and statutory obligations, to the alleged misconduct or the termination of her employment.
(10) The applicant exercised a workplace right
On 16 June 2016, the applicant started a workers compensation claim. On 30 June 2016, she sent an email to Mr Gilpin requesting reimbursement of money paid for her medication relating to her workers compensation medical expenses, with receipts attached. On 11 July 2016, she sent an email to Mr Gilpin requesting reimbursement of medication, with receipts attached. On 29 June 2016, she attended a medical appointment and obtained a workers compensation medical certificate, and the cost of the attendance was not paid by the respondent.
The applicant gave evidence that she believed her email dated 30 June 2016 influenced the decision to terminate her employment because:
… It’s probably just another headache. “Let’s just get rid of her”, because I do believe I should have been paid these expenses as per the legislation there and it didn’t happen… It was just so many issues that were on the table that I had sent to him, I just think it was so overwhelming with real concerns that I’ve got proof of…
The applicant said that if there is a dispute about the payment of medical expenses, the employer has to send a letter saying why it is unreasonable and why it is not necessary and this did not happen. She said that the claim in relation to her medical expenses influenced the decision to terminate her employment because ‘I was just another problem… It’s easy to get rid of me…’
The applicant was also dealing with the insurer in respect of her medical expenses. The applicant agreed that her email dated 30 June was also sent to Ms Naomi Bessell, an employee of the respondent’s insurance company, and to Mr David Wallace, a lawyer for the insurance company, about these expenses. When she was asked why she blamed Mr Gilpin for the lack of reimbursement and not the insurance company, she answered, ‘my main focus was to try to bring up issues with John Gilpin and obviously he did not address them. I ended up going on stress.’
Response to (10)
Mr Gilpin denied that the applicant making a workers compensation claim had any bearing in relation to the investigation of the alleged misconduct, or the decision to terminate her employment.
He agreed that the applicant sought reimbursement for medical expenses, but denied that she was exercising a workplace right. He forwarded to the insurance company the emails she sent him between 23 June and 13 July.
Mr Gilpin deposed that the insurer advised him that the applicant’s claim was disputed, so reimbursement for medical expenses was not to occur, but wages were to be paid until an order was made by the Tribunal.
(11) The applicant exercised workplace rights
The applicant was not allocated a return to work co-ordinator whilst employed at STMA within the allocated time frame and before she was dismissed on 13 July 2016, pursuant to s.143D of the Workers Rehabilitation and Compensation Act 1988 (Tas) (‘the WRC Act’). She was also not allocated a return to work plan pursuant to s.143E of the WRC Act.
The applicant said that the failure to appoint a return to work co-ordinator had an impact on the decision to terminate her employment because ‘it’s a lot easier to get rid of me.’
Response to (11)
Mr Gilpin denied that the respondent was obligated to appoint a return to work co-ordinator or to put in place return to work and management injury plans pursuant to the WRC Act. He deposed that this was the responsibility of the insurance company.
(12) The applicant had a workplace right
The respondent dismissed the applicant on 13 July 2016, the same day that the Tribunal made the decision that there was an ‘arguable case to answer.’ This prevented the exercise of the applicant’s right under s.143L(1) of the WRC Act which provides:
(1) An employer of a worker must, for a period of 12 months commencing on the day on which the worker becomes totally or partially incapacitated by a workplace injury, make available to the worker the employment in respect of which the worker was engaged immediately before becoming incapacitated…
Response to (12)
Mr Gilpin denied that there was an obligation to continue to hold the applicant’s position open for a period of twelve months pursuant to the WRC Act. He deposed that once an order was issued by the Tribunal that weekly payments cease, this provision should cease to apply.
Discussion
During cross-examination, Mr Gilpin raised the bona fides of the applicant making the complaints when she did. He indicated that she had not raised any issue with the respondent in relation to a safe working environment, bullying behaviour or any physical or emotional abuse prior to the making of her workers compensation claim. He said that at a round table staff meeting, which he believed was held on 8 June 2016, the applicant said that she was fine, everything was going really well, and she was really enjoying the teamwork that she was starting to develop.
Where Ms Szabo may have raised in our incident process concerns to other managers that came through to my desk for recommendations, approval, there were not many that were raised. When the meeting of the notification of being stood down… there was a flood of accusations and concerns and issues raised … And I said “please can you stick with doing the investigation, then there’s workers compensation.”
Mr Gilpin believed that the applicant was a happy staff member until 8 June 2016. There may have been some issues raised in the course of business, but nothing that he knew personally about any bullying, harassment or any concern about Mr Richards or Mr Schade. He had nothing on his desk at that time until the applicant was stood down in respect of the medication issue.
Apart from the pay increment enquiries, the complaints were made by the applicant after she received the letter written on 8 June 2016, containing the allegations made against her in respect of the medication error.
The applicant gave evidence that she knew that there was a possibility of her being dismissed from her employment as a result of her not reporting the medication error. She said she wanted Mr Gilpin to be aware of issues in the workplace.
Although the timing of the complaints and the issue of whether they were genuine, were raised by Mr Gilpin, it was not submitted that they were not complaints falling within s.341 of the FW Act for that reason.
I accept that the enquiries about the applicant’s pay increments, complaints about health and safety issues and bullying concerns are about her employment and fall within s.341(1)(c)(ii) of the FW Act. I accept that making a workers compensation claim is a complaint falling within s.341(1)(c)(i). Given the concession made by counsel for the respondent,[39] I will accept that complaints about other employee’s conduct relate to the applicant’s employment and also fall within s341(1)(c)(ii). In respect of the allegations contained in (1)-(10) of the amended statement of claim, I accept that the applicant has exercised workplace rights.
[39] See [97] above.
In respect of allegation (11), counsel for the respondent submitted that this was not the exercise of a workplace right. In the decision of Mikulic v Ecolab Pty Ltd,[40] Judge Cameron said:
Although the meaning of “complaint” is not finally settled, (see Shea v TRUenergy Services Pty Ltd (No.6) (2014) 242 IR 1 at 99 [625], 100 [631] and Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19 at [64]-[69], contra: Henry v Leighton Admin Services Pty Ltd (2015) 299 FLR 342 at 359 [63]ff) it does at least include complaints which concern matters that would “invite the intervention of bodies having the capacity to enforce compliance”: Harrison v In Control Pty Ltd (2013) 273 FLR 190 at 203 [72] or raise an issue with potential implications for the complainant’s employment: Milardovic v Vemco Services at [68], [69]. A breach of a health and safety duty under the Work Health and Safety Act would be such a complaint.
A workers’ compensation claim is also a complaint for the purposes of s.341(1)(c)(i): Dowling v Fairfax Media Publications Pty Ltd (2008) 172 FCR 96 at 121-122 [81]-[83].[41]
[40] [2017] FCCA 146.
[41] Ibid [228]-[229].
Pursuant to s.143D of the WRC Act, the employer has an obligation to appoint a return to work co-ordinator and a return to work plan. Mr Gilpin’s evidence was that he believed that this was the insurer’s responsibility.
In respect of allegation (12),[42] because the Tribunal made a finding that there was an arguable case that the weekly payments cease, Mr Gilpin was of the view that the respondent did not have an obligation pursuant to the relevant legislation to continue to hold open the applicant’s position for 12 months.
[42] WRC Act s.143L(1).
Neither party made any submissions about these provisions under the WRC Act. In respect of allegations (11) and (12), if these are breaches of the WRC Act, they may amount to complaints. However, I do not need to decide about this, as I accept Mr Gilpin’s denials that the exercise by the applicant of workplace rights did not motivate him to dismiss the applicant. I am of the view that none of the matters alleged by the applicant in respect of workplace rights motivated him to dismiss the applicant.
I accept Mr Gilpin’s evidence that he decided to dismiss the applicant in light of his findings of the investigation between 9 and 15 June 2016 and the applicant’s responses of 22 June 2016, and he delayed the decision until a determination had been made by the Tribunal.
I accept Mr Gilpin’s evidence that he dismissed the applicant because she did not address the key issue of her failure to report the medication error in any detail, other than to say it was an oversight. She told Ms Hefford she would report it, and she told Ms Duyst she would report it. Mr Gilpin explained that she had therefore taken responsibility for reporting it, but when she was asked about the failure to report the error at the meeting on 14 June 2016, she made point that the person discovering the error was required to report it. As a result, Mr Gilpin concluded that the failure to report the error was deliberate.
Failure to call Witnesses
The applicant made the point that various persons involved in the investigation did not give evidence. It was submitted by counsel for the respondent that it was not necessary for the Court to receive evidence from anyone other than Mr Gilpin, as he was the sole decision-maker, and no adverse inference should be drawn against the respondent.
In cross-examination, Mr Gilpin said that whilst Mr Gower and Mr Schade conducted the preliminary discussions with the applicant, and Mr Schade was present at the meeting with Ms Hefford, it was Mr Gilpin who made the decision to terminate her employment. He was of the view that the applicant’s own information supported the information he received.
There was no challenge made by the applicant that Mr Gilpin was not the sole decision-maker.
In the decision of National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 Gray J reviewed the authorities in respect of the involvement of more than one person in making the ultimate decision, stating at [26]-[28]:
It is often the task of a court to make a finding as to the minds of which natural person or persons constitute the directing mind and will of a corporate body, for the purpose of determining the state of mind of that corporate body. Sometimes, the question is as to the knowledge of the corporate body. As Brennan, Deane, Gaudron and McHugh JJ said in Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 583:
A division of function among officers of a corporation responsible for different aspects of the one transaction does not relieve the corporation from responsibility determined by reference to the knowledge possessed by each of them.
The same can be said of states of mind other than knowledge, such as reason or intent. In Voigtsberger v Council of the Shire of Pine Rivers (No 2) (1981) 58 FLR 239, the question was whether an employee in local government had been dismissed from her employment for a proscribed reason. Although the local council itself had made the ultimate decision to dismiss, Evatt J found that it was an earlier decision of the finance committee that was the critical decision. The council had merely “rubber-stamped” the recommendation of the finance committee later on the same evening. The finance committee consisted of eight councillors, six of whom had not been called as witnesses. His Honour held that the decision to dismiss the employee had not been proved not to be actuated by the proscribed reason alleged.
Wood (On Behalf Of The Industrial Relations Bureau) v Lord Mayor, Councillors and Citizens of the City of Melbourne (1979) 41 FLR 1 was another local government case. The ultimate decision had been made by the Town Clerk, who was the chief executive officer of the employer. There was a question as to whether the decision was tainted by the involvement, in conjunction with the town clerk, of the deputy town clerk, who was said to have acted for a proscribed reason. Ultimately, Smithers J found that the decision was that of the town clerk only, and was not tainted by the proscribed reason. In the course of his reasons, at 19, his Honour said:
“In the task of ascertaining the mind of the defendant corporation, with respect to the standing down of Mr. Kane, that mind may be located in the mind of one authorized officer or of more than one person exercising the executive power of the corporation. It is a pure question of fact where in particular circumstances that corporate mind may be located. In a case where two officers are concerned in the solution of an administrative problem and are working jointly to solve it and decide what the corporation is to do and are working in harmony and in full confidence, the one with the other, the mind of the corporation is to be found in the course of conduct agreed upon between them and the reasons which in the end are the operating reasons for the policy agreed upon.”
In Gibbs v Palmerston Town Council [1987] FCA 732 (unreported, Federal Court of Australia, Gray J, 21 December 1987), I referred to both Wood and Voigtsberger. At 84-85, I said:
“there is still a difficult question of the extent to which the improper purpose of one person may be a substantial operative factor in the decision of another. Clearly, if the actual decision maker simply “rubber stamps” a decision in fact made by another, the purpose of that other will be a substantial operative factor. At the other extreme, if the actual decision maker truly believes the false and innocent reasons advanced by the other person, the mind of the decision maker will not be tainted by the improper purpose of the other person. The problem assumes greater complexity when the decision is made by more than one person, as might be the case with the board of directors of a company, and as is often the case when the decision is made by a local government authority.”
I accept Mr Gilpin’s evidence that it was his decision to terminate the applicant’s employment. He was the sole decision-maker. The evidence indicates that it was not a situation of him ‘rubber-stamping’ a recommendation made by Mr Schade or Mr Gower. They did not make a recommendation to him about the termination of the applicant’s employment. They reported to him about their investigations. Mr Gilpin then gave the applicant the opportunity to answer the allegations made as result of their investigation.
The applicant did not deny that she made a medication error. She did not deny that she told Ms Hefford that she would report the error. She did not deny that she told Ms Duyst that she would report the medication error. She admitted that she did not report the error, but did not give any explanation that was satisfactory to Mr Gilpin. He believed that her failure to report the error was deliberate.
In his letter dated 16 June 2016 to the applicant, Mr Gilpin accepted that the applicant had denied that she actively encouraged Ms Hefford not to report the error. His oral evidence confirmed that he concluded that, because she told Ms Hefford she was going to report the error, and then did not report it, she discouraged Ms Hefford to report it. Similarly, he was of the view that because she told Ms Duyst she would report the error, and she did not, she discouraged the reporting of it.
Whilst the applicant complained that the notes made of the meeting on 14 June 2016 were incorrect, this was in respect of her concerns about other medication errors and other staff, rather than about the issue of the failure to report the error. The applicant did not dispute the accuracy of the medication error report of Ms Duyst.
I do not consider that an adverse inference should be made against the respondent for not calling any witness other than Mr Gilpin. I consider that the failure to call any of these persons is not fatal to the discharge of the onus on the respondent under s.361 of the FW Act to prove that it did not dismiss the applicant for the reasons referred to at [3]. I consider that the evidence of Mr Gilpin alone was sufficient to discharge the onus.
The allegation of coercion
The applicant alleged that the respondent coerced her.
Section 343 of the FW Act provides:
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 asserted that ‘the employer…coerced the applicant into not taking a period of workers compensation leave…’ when Mr Gilpin wrote in an email on 16 June 2016, ‘on reflection do you require one? (a claim form).
The applicant asserted that Mr Gilpin ‘further coerced’ her when he attended her home to provide her with his letter about the outcome of the investigation; he sent emails to her on or about 17 June 2016 regarding the disciplinary process; and he did not accede fully to her request for additional time to respond.
I am of the view that it is clear from the emails sent by Mr Gilpin to the applicant about the workers compensation claim form that he was not attempting to coerce her not into not taking a period of workers compensation leave. His language was clear. He mentioned twice that the applicant had a right to make a claim for workers compensation. I consider that Mr Gilpin was trying to assist the applicant to focus on the medication error investigation.
Mr Gilpin denied that his actions in attending the applicant’s home on 16 June 2016 to provide her with a letter advising her of the outcome of the investigation, and then attending her home to provide her with subsequent letters in relation to her employment, amounted to coercion.
Mr Gilpin explained that he delivered the letter dated 17 June 2016 to her home because of his concern about any anxiety that may be caused to her, and he thought the matter should be resolved as quickly as possible.
I consider that the applicant’s claim of coercion should be dismissed.
Conclusion
I consider that Mr Gilpin’s evidence was reliable. I consider that the respondent has discharged the burden imposed on it by s.361 of the FW Act. I conclude that the respondent has proved that it did not dismiss the applicant for any of the prohibited reasons she has alleged.
I dismiss the application.
I certify that the preceding one hundred and sixty-six (166) paragraphs are a true copy of the reasons for judgment of Judge Baker
Associate:
Date: 26 June 2018
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