Tami Gagulich v Cardio Respiratory Sleep Pty Ltd
[2021] FWC 1229
•5 MARCH 2021
| [2021] FWC 1229 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Tami Gagulich
v
Cardio Respiratory Sleep Pty Ltd
(U2020/10413)
DEPUTY PRESIDENT YOUNG | MELBOURNE, 5 MARCH 2021 |
Application for an unfair dismissal remedy.
[1] On 31 July 2020, Ms Tami Gagulich made an application to the Fair Work Commission under section 394 of the Fair Work Act 2009 (Cth) (Act) for a remedy, alleging that she had been unfairly dismissed from her employment with the Respondent. In her Form F2 Application, Ms Gagulich identified the Respondent as ‘Clinical Integration Solutions Pty Ltd’. At hearing, Counsel for the Respondent raised that the correct name of the Respondent was in fact ‘Cardio Respiratory Sleep Pty Ltd’. By consent, pursuant to section 586 of the Act, I amend the Form F2 Application such that the name of the Respondent is ‘Cardio Respiratory Sleep Pty Ltd’ (CRS).
[2] Ms Gagulich seeks compensation. CRS denies that Ms Gagulich was unfairly dismissed.
Hearing and Witnesses
[3] Ms Gagulich’s application was the subject of a hearing before me on 29 and 30 October 2020.
[4] Pursuant to section 596 of the Act, Mr Alan Dircks of Just Relations Consultants appeared on behalf of Ms Gagulich and Mr Jack Tracey of Counsel appeared on behalf of CRS.
[5] Ms Gagulich gave evidence on her own behalf.
[6] The following witnesses gave evidence on behalf of CRS:
• Ian Watts – Chief Operating Officer, Cardio Vascular Services
• Kyle Sensiba – Victorian Operations Manager, CRS
[7] Ms Gagulich filed submissions and a witness statement in the Commission on 22 September 2020 and 26 October 2020 with final written submissions being filed on 23 November 2020. CRS filed submissions and a witness statement on 7 October 2020 and a further witness statement on 8 October 2020 and final written submissions on 11 December 2020.
Initial matters
[8] Turning first to the initial matters which must be decided before the merits of the application are considered, it is not in dispute and I find that:
• the application was made within the period required in subsection 394(2);
• CRS is not a small business employer, having 15 or more employees at the relevant time and the Small Business Fair Dismissal Code therefore does not apply;
• Ms Gagulich was an employee who had completed a period of employment with CRS of at least the minimum employment period;
• at the time of dismissal Ms Gagulich was a person protected from unfair dismissal; and
• the dismissal was not effected for reasons of redundancy, and so it was not a case of genuine redundancy.
[9] I have concluded that Ms Gagulich’s dismissal was unfair. These are my reasons for that conclusion.
Witness evidence
[10] I first make some general comments regarding the evidence given by the witnesses called and related matters. I found Ms Gagulich, generally, to be somewhat defensive and curt and, at times, reluctant to make concessions or agree to propositions where that appeared warranted. Conversely, I found Mr Sensiba to be an entirely credible witness, who gave direct and measured evidence and who made appropriate concessions. I found Mr Watts, generally, to be a somewhat unimpressive witness who, despite being the decision maker regarding Ms Gagulich’s dismissal, appeared to have limited detailed knowledge of the matters in issue. Notwithstanding that, I consider he gave truthful evidence.
[11] Secondly, I address the evidence filed and given by Ms Gagulich. The witness statement filed by Ms Gagulich in accordance with the directions made in this matter was brief and did not, in large part, address the performance and conduct issues relied upon by CRS to dismiss her. Most of this evidence was given orally, without prior notice to the Respondent that such evidence would be led. Further, the giving of oral evidence in chief by Ms Gagulich assumed some importance in relation to the 3 June Incident referred to at paragraph [45] below. In response to this “new” evidence in chief the Respondent sought instructions from Mr Sensiba. In her Final Closing Submissions Ms Gagulich says that she has “concerns” that this evidence was brought to Mr Sensiba’s attention prior to him giving evidence. 1 The Respondent says that it was prejudiced unless it was able to seek instructions and that Ms Gagulich’s concerns are misplaced.2 I accept those submissions, noting also that the scope of the instructions sought was limited, and consider it entirely unsatisfactory that Ms Gagulich adduced new, significant, oral evidence in chief at the hearing when evidence in chief had been directed to be by witness statement.
Factual setting and findings
Background
[12] Ms Gagulich was employed by CRS in the position of Sleep and Respiratory Technologist. In that role she was responsible for:
• conducting, monitoring, and recording home-based sleep studies;
• dispensing and managing sleep disordered breathing therapy solutions to optimise patient outcomes;
• patient therapy testing;
• ensuring that high quality patient care was provided in a professional and supportive manner; and
• equipment maintenance, including regular testing and calibration. 3
[13] In addition, Ms Gagulich was also required to assist with administrative tasks as directed, including patient booking and invoicing and responding to patient enquiries. 4
[14] The Clinical Integration Solutions Code of Conduct (Code) applied to Ms Gagulich throughout her employment. The Code, amongst other things, required Ms Gagulich to perform her duties with diligence and care, 5 take accountability for her own actions,6 be honest, respectful and courteous to all staff members, affiliates, patients and visitors to the workplace7 and work co-operatively and collaboratively with other staff members.8
[15] Under the Clinical Integration Solutions “Work Rules” Ms Gagulich was required to eliminate sloppiness including in relation to wrong details, spelling or grammatical mistakes, and administrative errors, have attention to detail and identify and remedy any knowledge gaps. 9
[16] By letter dated 29 July 2020 (Termination Letter) Mr Watts terminated Ms Gagulich’s employment. The Termination Letter provides that Ms Gagulich’s employment is terminated for the following reasons:
• Ongoing documented unsatisfactory performance in your role as Sleep and Respiratory Technologist;
• Unsatisfactory patient care, resulting in numerous patient complaints;
• Apparent disregard and lack of care for work performed, in particular administrative components of your role;
• Persistent demonstration of lack of attention to detail in both clinical and administrative components of your role;
• Lack of demonstration and alignment of CIS group values, in particular collaboration, excellence, integrity and innovation. 10
[17] The full text of the Termination Letter is set out in Annexure A to this decision.
[18] Upon termination of employment, Ms Gagulich was provided with 5 weeks’ pay in lieu of notice. 11
Performance and conduct warnings and discussions
[19] On 17 June 2019 Ms Gagulich was issued with a written warning 12 (17 June Warning). The 17 June Warning refers to a telephone call between Mr Watts and Ms Gagulich on 13 June 2019 regarding “workplace behavioural concerns”, in which Ms Gagulich was “advised that her conduct has been unsatisfactory and that immediate improvement is required.” The 17 June Warning provides that Ms Gagulich left work early without permission on 7 May 2019 and 23 May 2019, that leaving early without permission was a recurring issue which had been discussed with her previously and that “the tone of [her] emails and general communication with other staff needs to improve”, as this, “along with her conduct was contributing to an unpleasant working environment”. The 17 June Warning also provides as follows:
“As discussed in our meeting, you may be subject to further disciplinary action during this period, up to and including termination of employment, if your conduct does not improve – or should further conduct or behavioural issues arise.” 13
[20] The 17 June Warning was not relied upon as a reason for dismissal. 14
[21] On 20 August 2019 Mr Watts had a further discussion with Ms Gagulich about the tone of her emails following an email exchange in relation to a biometric data error made by Ms Gagulich. 15
[22] Mr Watts’ evidence is that throughout April 2020 he became aware of further issues regarding Ms Gagulich’s performance. 16 On 29 April 2020 Ms Gagulich was issued with a Final Warning Letter17 (Final Warning Letter). The Final Warning Letter refers to a meeting with Mr Watts that day, in which Ms Gagulich was advised that her “performance has been unsatisfactory and that immediate improvement is required.” The Final Warning Letter provides that Ms Gagulich was advised that:
• CRS had received a patient complaint regarding a request by the patient to cancel an appointment. The patient felt “bullied” by Ms Gagulich into keeping the appointment. Ms Gagulich did not check the patient’s referral was valid and upon the patient attending it was identified that the referral had expired, resulting in the patient being required to pay a private fee. CRS refunded the private fee to the patient (Bullying and Referral Complaint);
• Ms Gagulich incorrectly billed a full list of patients on 8 April 2020 (Billing Error Incident);
• Ms Gagulich had expressed an unwillingness to undertake administrative duties, saying they did not fall under her contractual obligations (Administrative Duties Incident);
• Ms Gagulich had made a number of careless errors as a result of her apparent unwillingness to stay informed and her lack of engagement, including ABP downloads with misspelt medications and incorrect indications, consistent high calls to her line manager for unnecessary elementary questions, unwillingness to log into Slack, thereby missing 3 weeks of discussions on sleep studies and CPAP implementation, persistent incorrect time sheets and “push back” when asked to correct them and unwillingness or inability to stay up to date with advances in procedures due to COVID 19 (Timesheet and Other Matters Incidents);
• She had disclosed remuneration details to Mr Kyle Sensiba, in circumstances where those details were confidential (Disclosure Matter);
• Mr Watts and Mr Sensiba had lost confidence in Ms Gagulich’s ability to perform her role.
[23] The Final Warning Letter concludes as follows:
“After considering the situation, it is expected that your performance dramatically improves and specifically that:
• There is a complete reduction in all attention to detail related errors.
• You ensure to use the resources available to you to bring yourself up to speed with updates in administrative and clinical procedures. You do so with a willingness to contribute and be engaged going forward.
• You perform your role to the highest of your ability, without any questioning. You demonstrate collaboration with other team members.
• You respect all confidentiality with regards to your Contract of Employment, specifically regarding your remuneration.
This is your final written warning. Your workplace performance has been discussed far too many times and any further indiscretions will not be tolerated, and will result in further disciplinary action, including termination of your Employment. I propose that we meet again on 13th May, 2020 to review your progress. Please let me know if this time is convenient to you. If you wish to respond to this letter please do so by replying in writing.” 18
[24] On 15 May 2020 Mr Watts and Ms Gagulich had a telephone call to discuss her performance following the Final Warning Letter. Mr Watts says that he also raised a further issue which concerned Ms Gagulich pointing out an error she perceived Mr Sensiba to have made in front of a patient and doctor. Mr Watts says he advised Ms Gagulich that he would look into that matter further (15 May Incident). 19 Ms Gagulich says the 15 May Incident was not raised in this telephone call,20 however, in all the circumstances, it is not presently necessary that this be finally determined.
[25] On 15 June 2020 Mr Watts wrote to Ms Gagulich directing her to attend a meeting by telephone on 17 June 2020 21 to “discuss matters relating to [her] performance.”22 The teleconference was attended by Mr Watts, Mr Sensiba and Ms Gagulich.23 Following the teleconference, Mr Watts provided a letter to Ms Gagulich outlining the further concerns regarding her performance discussed at the teleconference and inviting her to respond further to those matters (17 June Letter).24 The 17 June Letter raised the following six matters of concern:
• On 15 May 2020 Ms Gagulich informed a patient and Dr Kyoong that an error had been made in the patient’s booking by Mr Sensiba, concerning whether the patient was required to first consult with Dr Kyoong. No such error had been made and Ms Gagulich was incorrect that the patient did not require a consultation (15 May Incident);
• On 3 June 2020 Ms Gagulich incorrectly sent a patient booking confirmation for a contactless HBSS and instructional email to Mr Sensiba rather than to the patient (3 June Incident);
• On 3 June 2020 Ms Gagulich fitted an ambulatory blood pressure (ABP) monitor to a patient. On 12 June 2020 the patient made a complaint that stated “I had to tell the nurse three times that I could not have a BP monitor on my left arm because I had a lymph node taken out …the nurse tried to pursued me …the nurse became irritated and told me to keep still … I noticed large blisters when I arrived home, as the cuff was put on too tightly…I believe the nurse did not do a proper job and did not have a good demeanour (which was also apparent on my last visit) …I will not be using your services…” (Blistering Incident);
• On 4 June 2020 a patient returned an ABP monitor, which was subsequently found to be faulty and which needed to be refitted. Ms Gagulich attempted to contact the patient on their landline regarding this but was unsuccessful. Ms Gagulich did not attempt to contact the patient using alternative methods noted in the client’s paperwork or contact the patient’s general practitioner (GP) to inform them that a report would not be generated due to the faulty recording (ABP Monitor Incident);
• On 4 June 2020 Mr Sensiba asked Ms Gagulich to confirm that a certain piece of equipment was on site for a patient. Ms Gagulich confirmed that it was, however, when the patient arrived it was found not to be the correct equipment. On 10 June 2020, the patient made a complaint that stated Ms Gagulich “… needed training on self-awareness (body language), personal grooming (hair/face needs to present clean and tidy), communication with clients and thorough knowledge in the product (in order to build trust in the client to purchase)” (4 June Incident);
• On 12 June 2020 a patient attended Kew East to collect a contactless HBSS unit however there was no booking or unit at Kew East for the patient. When taking the call from the patient, Ms Gagulich did not state the location or confirm the location for collection with the patient (12 June Incident).
[26] The 17 June Letter also provided as follows:
“From the above examples, as well as the issues discussed with you [in] previous performance meetings, it is apparent that your performance, attitude and conduct during your employment with Cardio Respiratory Sleep is unsatisfactory and of serious concern…” 25
[27] On 19 June 2020 Ms Gagulich provided a written response to the above six concerns contained in the 17 June Letter (Response). 26
[28] Ms Gagulich was on personal leave from 19 June 2020 until 20 July 2020. 27
[29] On 22 July 2020 Mr Watts and Mr Sensiba met with Ms Gagulich, who confirmed that she did not have anything further to add to the Response. 28
[30] On 22 July 2020 Mr Watts sent a letter to Ms Gagulich asking her to show cause as to why her employment ought not be terminated. 29 Ms Gagulich provided her show cause response on 29 July 2020.30
[31] Ms Gagulich’s employment was terminated on 29 July 2020.
Reasons for dismissal
[32] Mr Watts’ evidence was that the 17 June Warning was not relied upon as a reason for dismissal. 31 In his witness statement Mr Watts says that the Applicant’s employment was terminated due to ongoing unsatisfactory performance and conduct.32 The reasons contained in the Termination Letter are set out in paragraph [16] above. It is apparent that those “reasons” are generic statements and do not, generally, identify specific matters. When pressed as to the specific performance or conduct matters encompassed in the reasons for dismissal contained in the Termination Letter, Mr Watts had some difficulty in clearly articulating the matters relied upon by him to dismiss Ms Gagulich.33 However, his evidence was, ultimately, that he relied upon “everything that was documented in the two- in the two performance letters…”34 . I accept that evidence and accordingly find that the reasons for Ms Gagulich’s dismissal relied upon by the Respondent were the matters identified in the Final Warning Letter and the 17 June Letter. Following the conclusion of the hearing CRS abandoned any reliance on the Disclosure Matter as a valid reason for dismissal. 35 In her Final Submissions, Ms Gagulich submits that this suggests that Mr Watts gave false testimony36 and that the decision to terminate was based on a “false proposition” and therefore must “by definition” be unfair.37 I consider those submissions to be misconceived and I reject them. The Respondent does not submit that Mr Watt did not, in fact, rely upon the Disclosure Matter to dismiss Ms Gagulich, it simply does not press this as a valid reason for dismissal under section 387(a). I accept the Respondent’s submission that nothing may be inferred from the abandonment of the Disclosure Matter which has any relevance to the questions and evidence before the Commission which go to the fairness of Ms Gagulich’s dismissal.38
Bullying and Referral Complaint
[33] It does not appear contested that on 30 March, Patient A telephoned the clinic to cancel an appointment and spoke with Ms Gagulich (Telephone Call). It also does not appear contested that Patient A made a verbal complaint regarding Ms Gagulich’s conduct. It is not contested that Patient A’s referral had expired, which resulted in Patient A paying a private fee of $132.00. This fee was subsequently reimbursed by CRS to Patient A. 39 Ms Gagulich submits that Patient A had a financial incentive to assign blame to her as Patient A had neglected to ensure that they had a current referral, a matter in respect of which they had been reminded.40 I reject that submission. Whilst Ms Gagulich’s evidence was initially that she did not check the validity of Patient A’s referral as it was noted in Patient A’s file that they had already been told a new referral would be required, 41 and subsequently that she “possibly” should have checked the validity of the referral,42 she ultimately conceded that she should have double checked that Patient A had a current referral43 and that she had made an error in not doing so.44 This is consistent with Mr Sensiba’s unchallenged evidence that it was Ms Gagulich’s responsibility to check referrals when confirming appointments.45 Accordingly, I find that Ms Gagulich ought have checked that Patient A had a current referral and that she did not. I also find that this was an error by Ms Gagulich and that it resulted in Patient A incurring a private fee, the cost of which was ultimately borne by CRS.
[34] Ms Gagulich’s evidence was that she did not bully Patient A into keeping the appointment during the Telephone Call; rather she tried to convince her to keep the appointment 46 as staff had been encouraged to not let patients cancel appointments.47 Mr Sensiba’s evidence was that he listened to the Telephone Call and he considered that Ms Gagulich bullied Patient A into keeping the appointment.48 He agreed under cross examination that during the Telephone Call Ms Gagulich did not raise her voice, physically threaten or swear at Patient A or use threatening language. His evidence was that in the Telephone Call Ms Gagulich tried to “rush [Patient A] off and say, No, no, no, no to, you know, prevent the patient from moving that appointment.” and that the “main thing” was that Ms Gagulich cut Patient A off.49 Under cross examination he agreed that he had directed Ms Gagulich to encourage patients to keep their appointments50 but said that the direction was to offer Telehealth appointments as an alternative if patients were concerned about attending the clinic due to COVID 19.51 His recollection was that Patient A’s appointment was already a Telehealth Appointment.52 The Telephone Call was recorded and was in evidence, as well as two subsequent telephone calls between Patient A and Mr Sensiba. I find that Ms Gagulich did not bully Patient A into keeping her appointment. Firstly, at no point in any of the telephone calls in evidence does Patient A assert that Ms Gagulich bullied her; rather she refers to Ms Gagulich’s “pushiness for no reason”53 and Ms Gagulich “pushing her to keep the appointment”.54 Secondly, whilst I accept that in the Telephone Call Ms Gagulich did quite strenuously encourage Patient A to keep her appointment and was persistent in doing so, I find no support in the Telephone Call for a finding that Ms Gagulich bullied Patient A to keep her appointment. In particular, at no point did Ms Gagulich cut Patient A off, say “no, no, no, no” to Patient A, use a rude or inappropriate tone or use rude or inappropriate language. Further, at no point does CRS articulate what it considers bullying to constitute.
Billing Error Incident
[35] Ms Gagulich conceded that when undertaking billing on 8 April 2020 she incorrectly entered the date of the patients’ consultation, resulting in all the claims made on that date having to be reversed and resubmitted. 55 Although Ms Gagulich gave evidence that the billing system was new56 (which was contested by Mr Sensiba),57 she ultimately agreed that the Billing Error Incident was an error on her behalf.58 Accordingly, I find that the Billing Error Incident occurred and that it was an error by Ms Gagulich.
Administrative Duties Incident
[36] On 21 February 2020 Mr Sensiba asked Ms Gagulich, by email, to complete the banking. 59 In that email Mr Sensiba advised Ms Gagulich to ask Sam, another employee, if she had any questions. Ms Gagulich replied saying:
“Sure if someone can walk me through it unless you have a written procedure on how to do it. If so, can you send me a link to it? I have been shown once.
This has never fallen into my responsibility for it is not in my written job description.” 60
[37] Under cross examination Ms Gagulich denied that her response to Mr Sensiba was disrespectful or uncooperative. 61 Her evidence was that her response to Mr Sensiba was “factual”.62 She disagreed that she ought have undertaken the task without complaint.63 Under cross examination Mr Sensiba’s evidence was that banking was a general administrative duty and therefore did fall within Ms Gagulich’s job description.64 His further evidence under cross examination was that he had trained Ms Gagulich in the procedure to use “at least” twice65 and further he had previously communicated to her that these types of tasks were required of her and within her job description.66 I accept Mr Sensiba’s evidence as to these matters. Ms Gagulich’s contract of employment, in addition to specific duties, requires her to perform “such other duties as the Employee is lawfully directed to perform”67. Further, the position description for her role requires certain specific administrative duties to be undertaken and also provides that such other duties “as required” are to be performed.68 Accordingly, I find that Ms Gagulich was required to undertake the banking and while Ms Gagulich did agree to do so she did not do so willingly. I also find that her response to Mr Sensiba was uncooperative and somewhat irritable.
Time Sheets and Other Matters Matter
[38] On 20 February 2020 Ms Gagulich sent Mr Sensiba her timesheet which contained incorrect information. 69 In response to Mr Sensiba raising with Ms Gagulich that the dates in the timesheet were wrong she replied:
“I have fixed the dates. Next time could you please tell me exactly what is wrong so we do not go back and forth 2-3 emails about it? Emails going back and forth take time from both of us.” 70
[39] There were seven emails between Mr Sensiba and Ms Gagulich in relation to the incorrect time sheet. 71 Under cross examination Ms Gagulich did not accept it was her responsibility to correctly complete timesheets saying “We’re only human. Errors happen.”72 Under cross examination Mr Sensiba’s evidence was that this was “far from the first time that this incident has happened and discussed about these- about ensuring the correct dates.”73 and that this was “maybe the third or fourth time in a row that was incorrect.”74 His further evidence under cross examination was that he did not have a problem with Ms Gagulich’s response, his concern was that she was not double checking what she submitted.75 I accept that evidence. Accordingly, I find that Ms Gagulich did send incorrect timesheets to Mr Sensiba. However, contrary to Mr Sensiba’s view I consider that Ms Gagulich’s response to the incorrect timesheet sent on 20 February 2020 was somewhat irritable and uncooperative and failed to acknowledge her error, a position she maintained under cross examination.
[40] Mr Sensiba’s evidence was that Ms Gagulich misspelt medications which were required to be corrected by him or another technician. 76 Under cross examination in response to whether Ms Gagulich accepted that she misspelt medications that required correction by other technologists, she said “it’s possible that I have misspelt a medication or two, yes.”77 Accordingly, I find that Ms Gagulich did misspell medications and those errors were required to be rectified by either Mr Sensiba or another technologist.
[41] Mr Sensiba’s evidence was that Ms Gagulich would often call him so he could talk her through completing tasks which he would expect any technician to be able to complete. 78 Mr Watts’ evidence was that there were a high volume of calls from Ms Gagulich to Mr Sensiba for elementary questions and issues.79 His evidence was that this was raised with him by Mr Sensiba and had also been identified by Ms Gagulich’s previous manager.80 Under cross examination Ms Gagulich accepted that she “checked a lot” with Mr Sensiba81 in the last six months of her employment82 to make sure things were done correctly. She denied this demonstrated a lack of competence on her behalf.83 I accept Mr Sensiba’s evidence as to this matter and find that Ms Gagulich did make a high volume of calls to him in respect of tasks she ought have been able to complete without assistance. I find that this did demonstrate a lack of competence on Ms Gagulich’s behalf.
[42] No evidence was led as to Ms Gagulich asserted unwillingness to log into Slack and stay up to date with advances in procedures due to COVID-19. Accordingly, on the evidence before the Commission, there is no evidence that Ms Gagulich failed to engage in these activities.
15 May Incident
[43] Mr Sensiba’s evidence was that on 15 May 2020 Ms Gagulich incorrectly claimed that he had booked Patient B for a consultation because Patient B did not qualify for a Medicare rebated sleep study. Mr Sensiba’s evidence was that Ms Gagulich told Dr Kyoong that Mr Sensiba had booked the patient incorrectly and that this was raised in front of Patient B. His evidence was that this would have been avoided if Ms Gagulich had checked the patient’s referral. His further evidence was that when he explained Ms Gagulich’s error to her, her email response did not indicate that she took the matter seriously. 84 Under cross examination Ms Gagulich agreed that Mr Sensiba had, in fact, correctly booked Patient B for a consultation with Dr Kyoong and that she incorrectly told Dr Kyoong that Patient B did not require a consultation.85 She agreed that she had inverted the patient’s data and that this was an error on her behalf.86 She also agreed that following Mr Sensiba’s email to her confirming that Patient B had been correctly booked for a consultation and that Ms Gagulich had “the questionnaires reversed”,87 she responded saying “Oh thank goodness. I did and Sam [sic] saw the same thing and AK…lol”88. Accordingly, I find that on 15 May 2020 Ms Gagulich informed a patient and Dr Kyoong that an error had been made in Patient B’s booking, concerning whether Patient B was required to first consult with Dr Kyoong. I find that no such error had been made and Ms Gagulich was incorrect that Patient B did not require a consultation. I find this was an error on Ms Gagulich’s behalf.
[44] However, there is no evidence that Mr Sensiba was identified to Dr Kyoong or Patient B as the person responsible for the error. Firstly, Ms Gagulich’s evidence was that she first spoke about the booking error with Dr Kyoong and that following that discussion Patient B was invited into the discussion. 89 No one else was present.90 Secondly, her unchallenged evidence was that no one’s name, including that of Mr Sensiba, was mentioned in the conversation.91 Thirdly, under cross examination Mr Sensiba agreed that he was not present during this conversation,92 and that he was making an assumption that Dr Kyoong identified him as the person who made the booking error93 based on the way in which CRS systems work.94 Fourthly, Dr Kyoong did not give evidence nor is there any evidence that Mr Sensiba or Mr Watts made any enquiries of Dr Kyoong as to this. As to Ms Gagulich’s response to Mr Sensiba, I consider that the inclusion of “lol” in her email response does indicate that Ms Gagulich made light of the matter and once again failed to acknowledge that she had made an error. In her Final Written Submissions Ms Gagulich submits that in the absence of reputational damage to Mr Sensiba this matter cannot constitute a valid reason or a part reason for termination. I accept that there is no evidence before the Commission of reputational damage arising from this matter. However, for reasons set out later in this decision, I reject the submission that this matter cannot constitute a part reason for dismissal.
3 June Incident
[45] Mr Sensiba’s evidence is that on 3 June 2020 at 4.46 pm Ms Gagulich sent an email to him concerning a patient’s sleep study for that evening. The email was intended for the patient and contained a link to an instructional video to set up the sleep study. Mr Sensiba became aware that the patient had not received the email shortly before 9.00 pm, at which time he immediately sent it to the patient. Mr Sensiba’s evidence is that this delayed the patient’s sleep study and inconvenienced him. His further evidence was that he raised this with Ms Gagulich by email at 8.55 pm that night, to which she responded the next morning, saying “oh no…oops.” 95 Under cross examination, Ms Gagulich agreed that the patient did not receive the email96 and that was an error.97 She also agreed that the result of that error was a delay in the commencement of the patient’s sleep study98 and that this “perhaps” portrayed CRS in a bad light.99 Her further oral evidence was that Mr Sensiba called her after he spoke to the patient and she “profusely apologised” to him. As she had already apologised she replied to his email the next day by just saying “oops, sorry.” 100 Under cross examination Mr Sensiba’s evidence was that he did not call Ms Gagulich from his mobile phone that evening and he did not recall making a call to or speaking with Ms Gagulich on that night.101 Ms Gagulich submits that Mr Sensiba’s evidence was vague and inconclusive and that his evidence as to this matter is unreliable.102 For the following reasons, I reject that submission and accept Mr Sensiba’s evidence as to this matter. Firstly, if the matter had been dealt with in a telephone call the previous evening, it is entirely unclear as to why Ms Gagulich would respond to Mr Sensiba’s email later the following morning. Secondly, given that a response was provided by Ms Gagulich, I find it improbable that Ms Gagulich would not make reference to the telephone discussion in that response. Thirdly, in the 17 June Letter it is expressly stated in relation to the 3 June Incident that “You did not apologise for the inconvenience that it caused Kyle or the patient.”, however, in her written response on 19 June 2020 Ms Gagulich makes no reference at all to either the asserted telephone call or the apology. Further, the explanation provided by Ms Gagulich in that response was that the “email error was simply due to workload.”103 Fourthly, Ms Gagulich’s evidence about this telephone call was not included in her witness statement and was raised for the first time at hearing in oral evidence in chief. Accordingly, I find that on 3 June 2020 Ms Gagulich incorrectly sent a patient booking confirmation for a contactless HBSS and instructional email to Mr Sensiba rather than to the patient. I find that this was an error on Ms Gagulich’s behalf. I also find that her response the following day makes light of the matter and fails to properly acknowledge that she had made an error.
[46] In her Final Written Submissions Ms Gagulich submits that this matter could have been averted if Mr Sensiba had checked his emails during work hours. 104 Whilst that may be the case, I reject that submission. Such a submission fails to acknowledge that Ms Gagulich made an error and that she is accountable for that error.
Blistering Incident
[47] On 12 June 2020 CRS received a patient satisfaction survey from Patient C in relation to the fitting of a 24 ABP monitor by Ms Gagulich. 105 The survey was submitted by Patient C as a “suggestion”, however, I consider it clear from the content of the survey that it is, in fact, a complaint. Patient C states that they are “very unhappy with the service rendered on my visit to your clinic” and raises matters in relation to Ms Gagulich seeking to take a blood pressure reading from Patient C’s left arm and the blistering of her right arm following removal of the cuff, which Patient C considers to have been as a result of the cuff being put on too tightly. The full text of the complaint is set out in Annexure B to this decision. Ms Gagulich’s evidence was that Patient C was “nervous” about the ABP monitor being put on her left arm106 and said multiple times that she could not have a blood pressure monitor fitted to her left arm due to the removal of lymph nodes from that arm.107 Ms Gagulich’s evidence is that it is normal to take an initial blood pressure reading on both arms before the ABP monitor is fitted.108 Under cross examination she denied that it was inappropriate to fit a cuff at any time to Patient’s C left arm due to the lymph node removal, saying that it was permissible so long as it was not repeated and that a single application would not affect lymph node drainage.109 She agreed that the patient was “resistant” to the cuff being fitted to her left arm110 and that she tried to persuade the patient that the cuff could be put on her left arm as it wouldn’t take long.111 Her evidence was that she didn’t remember if she ultimately fitted the cuff to Patient C’s left arm to take an initial reading.112 The ABP monitor was fitted to Patient C’s right arm for the test.113 It does not appear to be contested that Patient C suffered blistering on her right arm and that the blistering occurred where the cuff had been fitted.114 Ms Gagulich’s evidence was that Patient C said the cuff on her right arm was tight and “it’s snug.”115 Her evidence was that Patient C was obese and as a result it was more difficult to fit the cuff to her arm.116 She denied that she put the cuff on too tightly and that this caused Patient C’s injuries.117 Her evidence was that the cuff had to be snug enough not to fall down or move.118 Her evidence was that she had never seen blistering from a cuff before.119 As to the assertion in the complaint that Ms Gagulich became irritated with Patient C and told her to keep still and that Ms Gagulich did not have a good demeanour, under cross examination Ms Gagulich agreed that she told Patient C to be still and not to talk so as to ensure an adequate reading.120 Under cross examination she denied that she did not have a good demeanour,121 saying that she tried to be nice to all her patients122 and that if she was not nice then she did not realise it.123
[48] Mr Sensiba’s evidence was that Patient C called the clinic after removal of the cuff but before the complaint on 12 June 2020 and spoke with him. 124 His evidence was that Patient C expressed concern about her experience with Ms Gagulich and also the subsequent blistering of her right arm. Patient C’s GP then called Mr Sensiba to discuss the blistering on Patient C’s arm. His evidence was that the GP initially thought the blistering might be a reaction to the material from which the cuff was made but subsequently dismissed this as a possible explanation.125 His evidence was that he did not receive any information from the GP as to the root cause of the injury.126 His further evidence was that he spoke to Patient C again after the complaint was made. In that conversation he says that Patient C expressed concern about the way the cuff was fitted to her right arm.127 Mr Sensiba’s evidence was that he advised Patient C and the GP that some irritation is normal128 however he had not before seen an injury of the type or extent sustained by Patient C.129 His evidence was that he did not consider that he was sufficiently qualified to say that the applicant was to “blame” for Patient C’s injuries.130 As to Ms Gagulich seeking to take a baseline blood pressure reading from Patient C’s left arm, Mr Sensiba evidence was that one would “probably avoid putting a blood pressure monitor on that arm that had lymph nodes removed”.131 Mr Watts’ evidence was that he had not spoken to either Patient C132 or Patient C’s GP133 nor had he seen any medical diagnosis for Patient C.134 Mr Watts’ evidence was that he had “heard of” of such reactions135 and that blistering such as occurred in Patient C can be caused by applying the cuff too tightly or incorrectly, not being aware of patient sensitivities and not identifying if the patient is suitable for the ABP monitor 24 test.136 His further evidence was that “one of the main things” was that Patient C had a bad experience during the fitting prior to any damage or injury arising.137
[49] In their Final Submissions CRS submits that Ms Gagulich’s “equivocation [as to being “nice” to the Patient] and failure to deny key matters the subject of the complaint”, together with the content of the complaint and Ms Gagulich’s evidence, demonstrates that Ms Gagulich exhibited an irritated and thus unprofessional demeanour, wrongly and without justification sought to put pressure on the patient to take a blood pressure test on her left arm and/or caused the patient to suffer injury by applying the blood pressure cuff too tightly. 138 Ms Gagulich submits that the blistering on Patient C’s arm is likely to be a condition known as Delayed Pressure Urticaria.139 In support of this contention Ms Gagulich relies upon an online resource, DermNet.140 For the reasons which follow, I reject both the Respondent’s and the Applicant’s submissions as to this matter, other than in relation to Ms Gagulich’s demeanour.
[50] Firstly, whilst I accept that Ms Gagulich did try to persuade Patient C to allow a baseline reading to be taken from the left arm, there is no evidence that such an approach was wrong or unjustified as contended for by CRS. Firstly, there is no medical evidence before the Commission to support this contention. Secondly, Ms Gagulich’s evidence that it is normal for a baseline reading to be taken from both arms was not challenged. Thirdly, Ms Gagulich’s evidence that it is permissible to fit a cuff in patients who have had lymph node removal so long as it was not repeated, was not directly contradicted by Mr Sensiba. Mr Sensiba’s evidence went no higher than to say that one would “probably” avoid fitting a cuff in those circumstances. His evidence does not, in my view, support a conclusion that to do so was wrong or unjustified.
[51] Secondly, there is simply no probative medical evidence before the Commission as to the cause of Patient’s C’s blistering. I accept that there is a correlation between the fitting of the cuff and Patient C’s blistering. However, correlation does not equate to causation. Further, Mr Sensiba’s evidence was that he was not adequately qualified to determine the cause of Patient C’s injury, while Mr Watts’ evidence was that there were four potential causes for a reaction such as Patient C’s reaction. Additionally, Mr Watts’ evidence was that he had no direct knowledge of reactions such as that of Patient C, nor is he a medical practitioner. 141 Further, he did not speak to Patient C nor to Patient C’s GP. Finally, I consider Patient C’s subjective view that the blistering was as a result of the cuff being too tight ought be given little weight. There is no evidence that Patient C holds any medical qualifications or other relevant expertise. Accordingly, I do not consider there is any proper basis upon which I could conclude that Ms Gagulich caused Patient C’s injury by fitting the cuff too tightly. Equally, there is no probative medical evidence before the Commission upon which I could conclude that Patient C’s blistering was likely to be Delayed Pressure Urticaria.
[52] As to Ms Gagulich’s demeanour, I accept that Ms Gagulich’s evidence as to this was somewhat equivocal and it is clear from the complaint that Patient C was dissatisfied with Ms Gagulich’s care. Further, as set out earlier in this decision, at the hearing I found Ms Gagulich to have a somewhat curt tone and to be somewhat defensive. In light of these matters, I consider it likely that Ms Gagulich was irritated by Patient C’s nervousness and her repeated statements that she could not have a cuff fitted to her left arm and by Patient C “moving around” and talking while Ms Gagulich was trying to obtain baseline readings. I also consider this would have been exacerbated by the difficulty in fitting the cuff to Patient C’s arm due to their obesity. Accordingly, I find that Ms Gagulich did exhibit an irritated demeanour towards Patient C.
ABP Monitor Incident
[53] Mr Watts’ evidence was that on 4 June 2020 a patient returned an ABP monitor which was faulty. Ms Gagulich attempted unsuccessfully to contact the patient regarding the faulty monitor. The patient subsequently attended their GP without the GP having received a report from the APB monitor. His evidence was that Ms Gagulich did not inform anyone of her difficulty contacting the patient to replace the monitor, discuss alternative methods to contact the patient nor did she contact the GP to inform them that a report would not be generated due to the faulty recording. 142 His evidence under cross examination was that it is normal and expected for staff to contact patients any way they can143 and in circumstances where the patient has an urgent appointment with their GP it is expected that staff will contact the GP.144 Ms Gagulich’s evidence was that she called the patient “three or four times” and left voicemails on her landline but could not contact the patient. Her evidence was that she put notes in the system and told both receptionists and Mr Sensiba that the monitor was faulty and the test needed to be repeated.145 Her evidence was that she had never been asked or told to contact a GP to tell them that the patient needs to change their appointment. She agreed that she knew the patient had an urgent appointment with their GP and that was why she attempted to contact them immediately.146 Under cross examination Mr Watts said that Mr Sensiba told him that Ms Gagulich did not inform anyone of her difficulty.147 His further evidence under cross examination was that he was unaware that Ms Gagulich had documented the matter in the patient management system and that he was also unaware that Ms Gagulich had left voicemail messages for the patient. He was unaware that Ms Gagulich attempted to contact the patient using the patient’s primary contact details. Accordingly, Mr Watts did not appear to have any first hand knowledge of these matters and also did not appear to have undertaken any investigation into them himself. Mr Sensiba did not give any evidence as to the ABP Monitor Incident. In these circumstances, I give little weight to Mr Watts’ evidence as to this matter and generally accept Ms Gagulich’s evidence. However, I reject Ms Gagulich’s evidence that she had never having been asked or told to contact a GP in these circumstances as explaining her failure to do so. Firstly, I consider it self evident that, in all the presently relevant circumstances, in the absence of being able to contact the patient contact with the GP ought to have been. Secondly, in her 19 June 2020 response Ms Gagulich does not say that she did not contact the GP as she was unaware that she ought do so; rather she says that she did not “have an opportunity to contact the GP due to workload issues.” Finally, I also consider it self evident that in all the relevant circumstances Ms Gagulich ought have attempted to contact the patient using alternative contact numbers which had been provided.
Equipment and Grooming Incident
[54] Mr Sensiba’s evidence was that on 10 June 2020 he became aware of a further patient complaint concerning Ms Gagulich. 148 This complaint was also expressed as a “suggestion”149 and received via the CRS’s patient satisfaction survey. Notwithstanding that, I consider it clear that this suggestion was also a complaint. Mr Sensiba’s evidence was that he spoke with Patient D and Patient D complained that Ms Gagulich was not familiar with the equipment being used and her presentation was unprofessional.150 The written complaint lodged by Patient D, relevantly, provided as follows:
“ …
For this appointment I met with Tammy. She was warm and friendly. However, her knowledge of the equipment was not good. When changing a function on the machine (which my appointment was for) she had to look though the instructional video to do so. She was also flustered due to [the] internet connection being poor. I therefore left the room to allow to [sic] her to watch the video and reset the machine. Tammy needs training on self awareness (body language/how to handle difficult situations etc), personal grooming (hair/face needs to present clean and tidy), communication with clients and thorough knowledge of the product (in order to build trust in the client to purchase).” 151
[55] Mr Sensiba’s evidence was that sometime between February and May 2020 152 Ms Gagulich had been provided with formal training in relation to the relevant piece of equipment through Philips, the provider of the equipment.153
[56] Mr Watts’ evidence was that on 4 June 2020 Ms Gagulich was asked by Mr Sensiba if the correct CPAP equipment was on site for Patient D. Ms Gagulich confirmed that it was but when the patient attended the following day, it was not. Mr Watts’ evidence is that because of this the appointment could not proceed and the patient was inconvenienced. 154
[57] Ms Gagulich’s evidence was that Patient D had purchased a CPAP machine and was having trouble with it. Ms Gagulich was required to reset it and she needed to check the machine’s setting via the internet. Due to poor internet connection at the Armadale office she had to “pull a video up” on her phone to check that the machine was correctly set 155 and that she was resetting it correctly.156 Her evidence was that the appointment with Patient D was completed.157 Under cross examination Ms Gagulich agreed that Patient D observed her viewing the instructional video for the machine on her phone158 and that Patient D left the room so that Ms Gagulich could watch the video and reset the machine.159 Ms Gagulich conceded that “quite possibly” Patient D had observed that she was flustered.160 She also ultimately conceded that it “could be someone’s opinion” that she appeared unprofessional and to not know what she was doing.161 However, she did not consider this was a fair or correct opinion.162 In her written response provided to CRS on 19 June 2020, Ms Gagulich concedes that in relation to this matter there was a “oversight with equipment”.163 In light of the above, in all the circumstances, I consider that Ms Gagulich’s interaction with Patient D was unprofessional and did demonstrate an inadequate knowledge of the relevant equipment. Indeed, in her Final Written Submissions Ms Gagulich concedes that she was “not as proficient with this product as it was a new model.” 164 Further, I consider that Ms Gagulich’s concession in the 19 June 20202 response that there was an oversight in relation to the equipment indicates that Ms Gagulich did incorrectly confirm that the relevant equipment was on site and I so find. This was a further error made by Ms Gagulich. However, there is no evidence to support the assertion that the appointment could not proceed, noting that Mr Watts was not present. Further, such an allegation is inconsistent the terms of Patient D’s complaint.
[58] In her Final Written Submissions Ms Gagulich concedes that she was unfamiliar with the equipment but submits this was solely an issue of training. 165 I reject that submission. Mr Sensiba’s evidence that Ms Gagulich had been trained in this piece of equipment by Philips166 was unchallenged and I accept it.
[59] As to Ms Gagulich’s grooming and body language, Mr Watts’ evidence was that he had no direct knowledge of how Ms Gagulich looked or presented that day. 167 Under cross examination, Mr Sensiba agreed that he had no knowledge of whether Patient D had any expertise in body language168 or personal grooming.169 His evidence was that when he spoke to Patient D, Patient D considered Ms Gagulich to be “unkept” but that Patient D had a stronger opinion about “the expertise of the equipment”.170 Mr Sensiba did not have any criticism of Ms Gagulich’s body language,171 personal grooming,172 the cleanliness of her hair or face173 or her being untidy.174 His evidence was that he had no previous concerns in relation to these matters.175 Accordingly, on the evidence before the Commission, I do not consider it may be concluded that Ms Gagulich’s body language or grooming were inadequate or that she was untidy or unkept.
12 June Incident
[60] Mr Watts’ evidence was that on 12 June 2020, Patient E went to the Kew East clinic to collect a contactless HBSS unit, however there was no booking for Patient E. His further evidence was that Ms Gagulich had not confirmed the location for collection of the unit with Patient E. 176
[61] In her witness statement Ms Gagulich says that it was her recollection that “there was no mention of Kew” and she had “no idea” why Patient E went to the Kew East clinic rather than the Armadale clinic. 177 Under cross examination Ms Gagulich’s evidence was that she had booked Patient E in at Armadale178 as she did not have a unit at Kew East.179 She agreed that she should have ensured that the booking was to attend the clinic where the monitor was. She did “not necessarily” accept that this was another error on her behalf.180
[62] It is not contested that Ms Gagulich spoke to Patient E on the telephone and made the booking for him to collect a contactless HBSS unit. The recording of that telephone call was in evidence before the Commission. That recording demonstrates that during the course of the telephone call Ms Gagulich mentioned both Kew East and Armadale but did not confirm which clinic the unit ought be collected from. Accordingly, I find that during the course of the conversation Ms Gagulich did not confirm with Patient E that the HBSS unit was to be collected from the Armadale Clinic. Her own evidence was she ought have. I therefore find that this was a further error made by Ms Gagulich.
Was the dismissal harsh, unjust or unreasonable?
[63] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[64] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 181
[65] I set out my consideration of each below.
Was there a valid reason for Gagulich’s dismissal? – Section 387(a)
[66] The principles that are relevant to the consideration of whether there was a valid reason for the dismissal related to the employee’s conduct or performance are well established. A valid reason is one that is “sound, defensible or well founded” 182 and should not be “capricious, fanciful, spiteful or prejudiced.”183
[67] The Commission does not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 184 The question the Commission must address is whether there is a valid reason, in the sense both that it was a good reason and a substantiated reason.
[68] The Act requires consideration of whether there was “a” valid reason for dismissal. Where several reasons for termination are invoked, it is not necessarily the case that all must be substantiated. 185 It is also well established that a valid reason need not necessarily be the one relied upon by the employer.186
Applicant’s submissions
[69] Ms Gagulich submits that there no valid reason for her dismissal. 187 Firstly, she submits that the matters relied upon in the Termination Letter are trivial administrative matters, with the exception of the Blistering Incident.188 Secondly, she submits that none of the matters relied upon by the Respondent in its submissions on valid reason constitute misconduct.189 Thirdly, she submits that the incidents raised prior to 29 April 2020 cannot constitute a valid reason for dismissal as they are trivial and inaccurately depicted, have been the subject of a formal warning and to rely upon them at a later date would therefore be procedurally unfair.190 Finally, she submits that termination is a disproportionate response.191 In my view, these latter two submissions, other than in relation to the alleged triviality of the incidents, do not go to the question of valid reason and are not matters properly considered under section 387(a). I address those submissions later in the context of section 387(b), (c) and (h).
[70] Ms Gagulich submits that the matters relied upon by the Respondent in its submissions as to valid reason, which are set out below, do not provide any clarity as to what weight was placed on what issue, including matters that had been the subject of the Final Written Warning, the Disclosure Matter (not now pressed by the Respondent) and the Blistering Incident. 192 I consider that submission to be entirely misconceived. It is for the Commission to determine, on the basis of the evidence before it, whether there was a valid reason for the dismissal and whether the dismissal was harsh, unjust or unreasonable.
[71] For completeness, I note Ms Gagulich’s submissions in relation to serious misconduct. 193 I do not understand it to be contended by the Respondent that Ms Gagulich engaged in serious misconduct. Further, it is well established that for the purposes of section 387(a) it is not necessary to demonstrate conduct sufficiently serious on behalf of the employee to justify summary dismissal in order to demonstrate that there is a valid reason for the employee’s dismissal.194
Respondent’s submissions
[72] In its Outline of Submissions, the Respondent submits that there was a valid reason based on Ms Gagulich’s conduct. 195 It submits that that conduct included:
• causing injury to a patient’s arm in the form of blistering, by incorrect use of an ABP cuff;
• causing reputational damage to the Respondent as evidenced by multiple complaints from patients in relation to the Applicant’s conduct;
• an incident involving bullying or pressuring a patient to keep an appointment;
• wrongly accusing her line manager of making an error, in front of a doctor and patient;
• discussing the confidential matter of her remuneration;
• lack of collaboration and team-work;
• errors causing delay and inconvenience to patients and colleagues;
• incorrect billing of patients;
• reluctance to perform administrative tasks;
• misspelling of medications;
• persistent high volumes of calls to her line manager, Mr Sensiba, for elementary questions and issues;
• incorrect preparation of timesheets;
• a lack of willingness to stay up to date with advances in procedures in light of COVID-19;
• lack of engagement and unwillingness to stay informed and up to date; and
• an overall lack of willingness to take ownership and responsibility for repeated errors, and a lack of insight into the impact of these errors on other staff and patients, and the business more broadly. 196
[73] In its Final Written Submissions, however, the Respondent submits that Ms Gagulich was dismissed in response to serious concerns about her performance and conduct. 197 Accordingly, it appears that the Respondent now contends that it had a valid reason to dismiss Ms Gagulich based on both capacity and conduct.
Consideration
[74] As set out earlier, the Termination Letter provided the following reasons for Ms Gagulich’s termination of employment:
• Ongoing documented unsatisfactory performance in your role as Sleep and Respiratory Technologist;
• Unsatisfactory patient care, resulting in numerous patient complaints;
• Apparent disregard and lack of care for work performed, in particular administrative components of your role;
• Persistent demonstration of lack of attention to detail in both clinical and administrative components of your role;
• Lack of demonstration and alignment of CIS group values, in particular collaboration, excellence, integrity and innovation. 198
[75] However, I have found that the reasons relied upon by Mr Watts for Ms Gagulich’s dismissal were those set out in the Final Warning Letter and the 17 June Letter. It is apparent that neither of those letters are entirely consistent with the Respondent’s submissions as to valid reason as set out above, nor are they entirely consistent with the terms of the Termination Letter. Accordingly, in so far as the Respondent’s submissions are inconsistent with the matters set out in the Final Warning Letter and the 17 June Letter, I reject them.
[76] In respect of the matters the subject of the Final Warning Letter, I have found that Ms Gagulich:
(a) ought have confirmed the Patient A had a valid referral and did not do so;
(b) incorrectly billed a full list of patients on 8 April 2020;
(c) expressed an unwillingness to undertake administrative duties and responded to this matter in a somewhat irritable and uncooperative manner;
(d) submitted incorrect timesheets on more than one occasion and responded to this matter in a somewhat irritable and uncooperative manner;
(e) misspelt medications; and
(f) made a high volume of calls to Mr Sensiba in respect of tasks she ought have been able to complete without assistance (collectively, the Final Warning Matters).
Accordingly, I find that some of the matters the subject of the Final Warning Letter did occur.
[77] In respect of the matters the subject of the 17 June Letter, I have found that Ms Gagulich:
(a) incorrectly informed Dr Kyoong and Patient B that an error had been made in Patient B’s booking and made light of this error in her response to it;
(b) incorrectly sent a patient booking confirmation for a contactless HBSS and instructional video to Mr Sensiba instead of the patient and made light of this error in her response to it;
(c) displayed an irritable demeanour towards Patient C;
(d) ought have attempted to contact the patient in the ABP Monitor Incident by alternative contact methods provided and ought have contacted the patient’s GP and did not do so;
(e) incorrectly confirmed that certain CPAP equipment was on site, was unprofessional in her interaction with Patient D and did not demonstrate an adequate knowledge of the relevant equipment;
(f) did not confirm with Patient E the location of the unit or the location from which the unit could be collected and ought have done so (collectively, the 17 June Matters).
Accordingly, I also find that some of the matters the subject of the 17 June Letter did occur.
[78] I consider that the Final Warning Matters and the 17 June Matters which I have found to have occurred comprised matters of both performance and conduct. For the reasons that follow I find that when considered collectively those performance and conduct matters constitute a valid reason for Ms Gagulich’s dismissal. In her employment Ms Gagulich was required to perform her duties with diligence and care, take accountability for her own actions, be honest, respectful and courteous to all staff members and patients and work co-operatively and collaboratively with other staff members. She was required to eliminate sloppiness including in relation to wrong details, spelling or grammatical mistakes, and administrative errors, have attention to detail and identify and remedy any knowledge gaps. 199 The matters which I have found to have occurred in relation to the Final Warning Letter and the 17 June Letter, in my view, demonstrate that Ms Gagulich did not meet these requirements. Ms Gagulich made errors in relation to a number of patient matters, billing, timesheets and the spelling of medications. Indeed, Ms Gagulich conceded that she made multiple errors throughout 2020.200 Further, she failed to take responsibility for her errors and made light of them when they were raised with her. At hearing Ms Gagulich said “We’re only human. Errors happen.”201 Ms Gagulich displayed an irritable demeanour towards Patient C and was unprofessional in her interaction with Patient D. On more than one occasion she responded to Mr Sensiba in an irritable and uncooperative manner. Finally, she required assistance from Mr Sensiba to perform tasks she ought have been able to undertake without assistance.
[79] I accept that in isolation some of the errors and performance matters may be considered minor, for example, the misspelling of medications, however I reject the submission that they are properly characterised as “trivial” or, indeed, that they are all administrative matters. I do not consider, for example, the failure to confirm that a patient has a valid referral or the failure to confirm the location of a piece of equipment to be collected by a patient or an unprofessional interaction with a patient, to be either a trivial matter or, properly considered, an administrative matter. As to Ms Gagulich’s submission regarding misconduct, firstly, as already set out it is well established that for the purposes of section 387(a) it is not necessary to demonstrate conduct sufficiently serious on behalf of the employee to justify summary dismissal in order to demonstrate that there is a valid reason for the employee’s dismissal. 202 Secondly, what is required to be established is that there is a sound, defensible and well-founded reason for the dismissal relating to the employee’s capacity or conduct. I consider that to respond to colleagues in the workplace in an irritable and uncooperative manner and display an irritable demeanour towards a patient, are conducts which constitute misconduct. I reject any suggestion that such conducts are mere negligence, an error of judgment or involve a mistake. Although I accept that single incidents of such conducts, in isolation, would not constitute a valid reason for dismissal, when viewed collectively and in conjunction with the above errors and performance issues, I consider CRS had a sound, well-founded and defensible reason to dismiss Ms Gagulich.
Was Gagulich notified of the valid reason? – Section 387(b)
[80] Section 387(b) requires the Commission to take into account whether an employee has been notified of the reasons for dismissal. Notification of a valid reason for termination must be given before the decision is made to terminate the employee’s employment, 203 and in explicit204 and plain and clear terms.205 In Crozier v Palazzo Corporation Pty Ltd(t/as Noble Park Storage and Transport)206a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 observed:
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 207
[81] The reasons of which Ms Gagulich is required to be notified are the matters which I have found to be a valid reason for dismissal.
[82] The Respondent submits that Ms Gagulich was notified of the reasons for her dismissal in meetings on 29 April 2020, 15 May 2020, 17 June 2020, 22 July 2020 and 29 July 2020 and in writing on 29 April 2020, 15 June 2020, 17 June 2020, 22 July 2020 and 29 July 2020. 208 I accept that the 17 June Matters were included in the matters raised with Ms Gagulich at a meeting on 17 June 2020 and subsequently set out in writing in the 17 June Letter. I am satisfied that Ms Gagulich was notified of those reasons. As to the Final Warning Matters, whilst these matters where included in the Final Warning Letter they were not notified to Ms Gagulich as reasons for her dismissal. They were relied upon as the basis for the issuing of the Final Warning. I accept the submission that as those matters had been the subject of a final warning to rely upon them again as reasons for dismissal is unfair and I so find.
Was Gagulich given an opportunity to respond to any valid reason related to her capacity or conduct? - Section 387(c)
[83] Section 387(c) requires the Commission must take into account whether an employee was provided an opportunity to respond to any reason for their dismissal relating to their conduct or performance. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 209
[84] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 210 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.211
[85] In Wadey v YMCA Canberra 212 Moore J stated the following principle about the right of an employee to appropriately defend allegations made by the employer:
“[T]he opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.”
[86] Ms Gagulich provided a written response to the 17 June Letter on 19 June 2020 and met with Mr Watts and Ms Sensiba in relation to that response on 22 July 2020. On 22 July 2020 Ms Gagulich was issued with a show cause letter in relation to the matters raised in the 17 June Letter. She responded to that show cause letter in writing on 29 July 2020. However, at no time was Ms Gagulich provided with a copy of the patient surveys submitted by Patients C and D, nor was she provided with an opportunity to listen to the recording of the telephone call with Patient E. In those circumstances, whilst I consider that Ms Gagulich had some opportunity to respond to the 17 June Matters, I do not consider that opportunity was reasonable in all the circumstances. I consider this gives rise to unfairness.
[87] As to the Final Warning Matters, I accept that Ms Gagulich met with Ms Watts on 29 April 2020 in relation to those matters. I also accept that those matters are set out in the Final Warning Letter. However, those matters were addressed and dealt with by the issuing of a final warning, as reflected in the Final Warning Letter. Those matters did not arise, at that time, in the context of Ms Gagulich’s potential dismissal. The Final Warning Matters were not raised in the 17 June Letter, in the meeting on 19 June 2020 or in the show cause letter prior to Mr Watts making the decision to dismiss Ms Gagulich. Accordingly, Ms Gagulich was not given an opportunity to respond to any of the Final Warning Matters in the context of those matters being relied upon, in part, to dismiss her. I therefore do not consider that Ms Gagulich was given a reasonable opportunity to respond to the Final Warning Matters. I consider this also gives rise to unfairness.
Did CRS unreasonably refuse to allow Ms Gagulich to have a support person present to assist at discussions relating to the dismissal? - Section 387(d)
[88] Section 387(d) requires the Commission to take into account whether there was an unreasonable refusal by the employer to allow an employee to have a support person present to assist in discussions relating to dismissal.
[89] It is not contended that Ms Gagulich was unreasonably refused a support person.
Was Gagulich warned about unsatisfactory performance before the dismissal - Section 387(e)
[90] If a dismissal relates to unsatisfactory performance, section 387(e) requires the Commission to consider whether the employee has been warned about the unsatisfactory performance prior to dismissal.
[91] I have found the reason for Ms Gagulich’s dismissal comprised both performance and conduct issues. In so far as that reason related to conduct, it was not necessary that Ms Gagulich be warned. In relation to Ms Gagulich’s performance, Ms Gagulich submits firstly, that there was no repetition of the matters raised in the Final Warning Letter 213 and secondly, that the Final Warning Letter does not meet the standard of a warning.214 I reject those submissions. Firstly, as set out in paragraphs [22-23] above, whilst identifying certain specific deficiencies and certain specific performance requirements, the Final Warning Letter provided that Ms Gagulich’s “workplace performance had been discussed far too many times” and that it was expected that Ms Gagulich’s performance would dramatically improve. Accordingly, I consider that the Final Warning Letter was expressed in broad terms and was not limited to the specific matters which gave rise to the letter being issued. It therefore matters not that the precise performance issues raised in the Final Warning Letter were not repeated by Ms Gagulich. Secondly, the Final Warning Letter concluded by saying that “any further indiscretions will not be tolerated” and would result in further disciplinary action including termination of employment. Accordingly, Ms Gagulich was put on notice that her performance needed to improve dramatically and that her employment may be terminated if there were further “indiscretions”, which I consider in the context of the Final Warning Letter clearly means any further workplace performance issues. In those circumstances, I am unable to see how the Final Warning Letter could be considered anything other than a warning. I am satisfied that Ms Gagulich was warned about her unsatisfactory performance.
To what degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resource management specialists or expertise in CRS’s enterprise would be likely to impact on the procedures followed in effecting the dismissal? - Section 387(f) and (g)
[92] Section 387(f) and (g) requires the Commission to take into account the degree to which the size of the employer’s enterprise and the absence of dedicated human resources management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal.
[93] CRS submits that it is not a large business and has no human resources function. I accept those submissions however in my view, in the present circumstances, these matters do not weigh in the consideration of whether the dismissal was harsh, unjust or unreasonable.
What other matters are relevant? - Section 387(h)
[94] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. The Commission should consider all of the circumstances, and weigh the gravity of any misconduct, poor performance or other circumstances telling against a conclusion that a dismissal was unfair, with any mitigating circumstances and other relevant matters that might support the applicant’s claim that the dismissal was harsh, unjust or unreasonable. 215
[95] The proportionality of the dismissal to the conduct that is the subject of the valid reason is a matter to be considered in connection with section 387(h). Ms Gagulich submits that termination was disproportionate. 216 The basis for that contention is not articulated, however, I infer from other submissions made by Ms Gagulich that it is advanced on the basis that there was no valid reason for dismissal and/or the asserted trivial and inconsequential nature of the incidents relied upon by CRS to dismiss Ms Gagulich. For the reasons set out above, I consider that there was a valid reason for Ms Gagulich’s dismissal and refer to and repeat my earlier comments regarding the assertion that the incidents are trivial, inconsequential and/or administrative. I find that Ms Gagulich’s dismissal was proportionate to her conduct and performance shortcomings.
Conclusion
[96] I have made findings in relation to each matter specified in section 387 as relevant.
[97] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 217
[98] Having considered each of the matters specified in section 387 of the Act, taking into account all of the evidence and based on my factual findings, whilst I have concluded that CRS had a valid reason to dismiss Ms Gagulich, I consider that Ms Gagulich was not notified of the Final Warning Matters as reasons for her dismissal nor was she provided with an opportunity to respond to those matters as reasons for her dismissal. Further, for the reasons set out above, whilst I consider that Ms Gagulich was provided with an opportunity to respond to the 17 June Matters, in all the circumstances, I do not consider that opportunity was reasonable. On balance, I am satisfied that these failures render Ms Gagulich’s dismissal unjust.
[99] I am therefore satisfied that Ms Gagulich’s termination was unfair within the meaning of the Act.
Remedy
[100] The statutory framework within which the question of remedy must be determined is clear. Section 390 provides that the Commission may order a person’s reinstatement or the payment of compensation, subject to the jurisdictional conditions in s 390(1) being met. However, the Commission must not order the payment of compensation to a person unless it is satisfied that reinstatement is inappropriate and the Commission considers payment of compensation is appropriate in all the circumstances (s 390(3)). Ms Gagulich does not seek reinstatement 218 and I am satisfied that it would be inappropriate to order her reinstated. I also consider that this is a case in which an order for compensation in lieu of reinstatement is appropriate.
[101] Compensation is intended to provide a person who has been unfairly dismissed with reparation for losses reasonably attributable to the unfair dismissal. The amount of compensation ordered by the Commission must not include a component for shock, distress or humiliation, or other analogous hurt, caused to the person by the dismissal (s 394(4)). In determining the amount, all the circumstances are to be taken into account, including those prescribed by s 392(2) of the Act. The ‘Sprigg’ formula is to be applied to arrive at an appropriate amount. 219 If this yields a figure that is excessive or inadequate, then the considerations in s 392(2) may be revisited.
[102] There is no evidence that a compensation order would have an adverse effect on the company’s viability (s 392(2)(a)) and CRS does not seek to rely upon this ground. 220 The length of Ms Gagulich’s service is approximately 8 years (s 392(2)(b)), which I find is supportive of an award of compensation being made.
[103] Section 392(2)(c) provides that the Commission must take into account the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed. 221 Ms Gagulich contends that, had she not been dismissed, she would have continued to be employed for at least a further two years. I disagree. Firstly, there was evidence of significant performance and conduct shortcomings and a failure by Ms Gagulich to acknowledge those shortcomings and take responsibility for them. In those circumstances I consider that Ms Gagulich’s performance and conduct shortcomings would have continued and it is likely that she would have been dismissed in a relatively short period of time. CRS submits that from 2019 Ms Gagulich had an intention to leave her employment and was looking for other jobs. It submits that this also favours a shorter hypothetical period of employment.222 I reject that submission. The conversation in which Mr Watts says that Ms Gagulich said she was looking for another job occurred on 13 June 2019.223 There is no evidence that the matter was raised at any point after that time or that after 13 June 2019 Ms Gagulich continued to look for alternate employment.
[104] In my view, it is reasonable to estimate that Ms Gagulich would have continued in her employment with CRS for another two months.
[105] Based on this, I will consider the calculation of compensation following the methodology in Sprigg. First, there is the question of the estimated remuneration that Ms Gagulich would have received had she not been dismissed. Ms Gagulich submitted that her salary was $85,000 per annum, plus superannuation and that her gross weekly earnings were equivalent to $1,789.00. 224 This was not contested by CRS. This gross weekly figure therefore appears to be a figure inclusive of superannuation. On the basis of a salary of $85,000 per annum, gross weekly earnings, exclusive of superannuation, are $1,634.61. Gross earnings for the estimated two months of further employment therefore gives a total of $14,166.62, excluding superannuation.
[106] Next, it is necessary to deduct monies earned by Ms Gagulich since her dismissal until the anticipated end of her employment with CRS. Ms Gagulich received five weeks’ payment in lieu of notice. 225 There was no evidence before the Commission as to the quantum of the five weeks’ notice paid to Ms Gagulich, however, on the basis of Ms Gagulich’s uncontested salary and the above calculated weekly salary earnings of $1,634.61, this comes to the gross amount of $8173.05. This should be deducted from the subtotal, leaving a gross amount of $5,993.57
[107] Ms Gagulich has not secured other employment since her dismissal 226 and I consider it unlikely that she will earn income in the period between the making of the order and the actual compensation. Accordingly, no deduction for earnings or future earnings is made (s 392(2)(e) and (f)).
[108] CRS submits that Ms Gagulich has failed to take reasonable steps to mitigate her loss (s 392(2)(d)) and that consequently any compensation must be substantially reduced. 227 I accept those submissions. Ms Gagulich’s evidence was that she had made no applications for any employment since dismissal, although she had “looked and talked to several people”.228 Under cross examination she agreed that there were multiple job postings on Seek that she could have applied for but did not do so as it was “not optimal for our situation.”229 Accordingly, I do not consider that Ms Gagulich has taken reasonable steps to mitigate the loss she suffered because of her dismissal. Given Ms Gagulich’s evidence that there were roles she could have applied for,230 I consider that greater efforts on Ms Gagulich’s behalf may well have led to alternative employment being secured. I consider that a deduction of 30% is appropriate in the present circumstances, being an amount of $1,798.07. This results in a subtotal of $4,195.50.
[109] Then there is the question of a percentage deduction for contingencies and vicissitudes of life. These principles were summarised in Roos v Winnaa Pty Ltd. 231 A deduction for contingencies applies a discount to an assessment of future economic loss so as to account for future unknown matters which might adversely affect earning capacity. Such a deduction is usually applied after the assessment of the period for which the employee would have remained employed. It applies to any future estimate of loss of earnings. CRS submits that taking into account Ms Gagulich’s intention to leave her employment there should be a reduction for contingencies of at least 30%. For the reasons set out earlier, I reject that submission. Further, given the short period of anticipated employment, in the present circumstances I do not consider it appropriate that a deduction for contingencies be made.
[110] I have considered the impact of taxation on the gross amount however it is not necessary for me to specify a post-tax amount.
[111] Section 392(3) of the Act states that if the Commission is satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person, the Commission must reduce the amount it would otherwise order under s 392(1) by an appropriate amount on account of the misconduct. I have found that Ms Gagulich did engage in misconduct and that this contributed to CRS decision to dismiss Ms Gagulich, although I accept that that conduct is at the lower end of the spectrum of seriousness. In the circumstances, I consider that a reduction of 10% is appropriate. This is deduction of $419.55. This results in a subtotal of $3,775.95.
[112] For the reasons earlier given, I am satisfied in the circumstances that a remedy should be ordered, but that reinstatement is inappropriate. I am satisfied that compensation is appropriate in the circumstances of this case. I will order compensation in the amount of $3,775.95 plus superannuation, with deduction of any taxation required by law, to be paid by the company to Ms Gagulich within 14 days of the date of this decision.
[113] An order giving effect to this decision is separately issued in PR727564.
[114] Liberty is granted to seek a variation to the order if there is a dispute as to:
• the correctness of the amount of weekly salary gross earnings calculated in paragraph [105] above (Weekly Gross Earnings);
• the amount of payment in lieu of notice of termination paid to Ms Gagulich;
• the impact the Weekly Gross Earnings, or the amount of notice in lieu of termination paid to Ms Gagulich, has on the compensation figure set out in paragraph [112] above.
DEPUTY PRESIDENT
Appearances:
A Dircks for the Applicant
J Tracey for the Respondent
Hearing details:
2020.
Melbourne (by video):
October 29 and 30.
Final written submissions:
Applicant, 23 November 2020
Respondent, 11 December 2020
Printed by authority of the Commonwealth Government Printer
<PR727563>
Annexure A
Dear Tami,
Termination of your employment
I am writing to you about the termination of your employment with Cardio Respiratory Sleep.
On 29th April 2020, you met with Ian Watts and Kyle Sensiba. In that meeting, you were advised that it is expected that your performance improves and specifically that:
• There is a complete reduction in all attention to detail related errors.
• You ensure to use the resources available to you to bring yourself up to speed with updates in administrative and clinical procedures. You do so with a willingness to contribute and be engaged going forward.
• You perform your role to the highest of your ability, without any questioning. You demonstrate collaboration with other team members.
• You respect all confidentiality with regards to your Contract of Employment, specifically regarding your remuneration.
You were issued with a formal warning letter on 29th April 2020. This letter indicated that your employment may be terminated if your performance did not improve immediately. This was your second written warning.
We subsequently met again on 17th of June to again address unsatisfactory performance, following which you were issued with a letter outlining additional significant performance issues, which are summarised below (detailed in Performance Meeting letter dated 17th June 2020):
• Error in regards to patient booking and eligibility for sleep consultation, highlighting of error (which was unfounded) committed by other staff member in front of sleep physician.
• Incorrect contactless HBSS booking procedure followed which resulted in co-worker and patient inconvenience.
• Inadequate follow-up of patient needing re-fit of monitor, resulting in patient and GP inconvenience.
• Patient complaint from CPAP visit, arising from interaction and inconvenience caused by equipment allocation error.
• Patient complaint following interaction during ABP appointment, with patient having resultant issues as a result of incorrect procedures followed.
• Incorrect booking procedure followed for patient which then resulted in patient inconvenience.
Following this meeting, you were asked to respond, to which you did. Following careful
consideration of your response, we met again on 22nd of July where you were issued a show-cause letter, asking you to provide a written explanation as to why your employment with Cardio Respiratory Sleep should not be terminated.
You responded via email this morning (29th of July), where you outlined that you felt as though you had explained your performance issues and that you could not provide any additional or alternate responses to the ones you have already provided (and that had already been considered). You explained that this process has caused significant stress on your health during this period. It must be clarified that this process and subsequent termination is solely for performance reasons.
In consideration of your response to the show-cause letter, we consider that your performance and conduct is still unsatisfactory and have decided to terminate your employment for the following reasons:
• Ongoing, documented unsatisfactory performance in your role as Sleep and Respiratory Technologist.
• Unsatisfactory patient care, resulting in numerous patient complaints
• Apparent disregard and lack of care for work performed, in particular administrative components of your role
• Persistent demonstration of lack of attention to detail in both clinical and administrative components of your role
• Lack of demonstration and alignment of CIS group values, in particular collaboration, excellence, integrity and innovation.
Based on your length of service, your notice period is 5 weeks. You will not be required to serve the notice period. You will receive payment in lieu of notice.
You will also be paid your accrued entitlements and outstanding remuneration, including
superannuation, up to and including your last day of employment.
Yours sincerely,
Ian Watts
Chief Operating Officer
Cardio Respiratory Sleep
Annexure B
I am very unhappy with the service rendered on my visit to your clinic. I had to tell the nurse three times that I could not have a BP monitor on my left arm because I had lymph node taken out under that arm. The nurse tried to persuade me that she could as it wouldn’t take long. Also, my little finger got stuck outside the cuff, so I pulled my hand out to place my hand back in a better position. The nurse became irritated when I removed my hand and told me to keep still. When I returned home after having the BP cuff removed, I noticed large blisters where the cuff was. I believe this was because the cuff was put on too tightly. It has been itchy and uncomfortable. My doctor bandaged it and recommend cortisone cream. I believe the nurse did not do a proper job and did not have a good demeanour. (Which was also apparent on my last visit) I will not be using you (sic) services and have told friends why I have marks on my right arm when they ask and they have been shocked!
1 Applicant’s Closing Submissions at [38]
2 Respondent’s Closing Submissions at [72]
3 Witness statement of Ian Watts at [9]; Annexure IW-3
4 Witness statement of Ian Watts at [10]; Annexure IW-3
5 Witness statement of Ian Watts, Annexure IW-2 at [4.3]
6 Witness statement of Ian Watts, Annexure IW-2 at [4.3]
7 Witness statement of Ian Watts, Annexure IW-2 at [4.5]
8 Witness statement of Ian Watts, Annexure IW-2 at [4.5]
9 Witness statement of Ian Watts, Annexure IW-6
10 Witness statement of Ian Watts, Annexure IW-19
11 Witness statement of Ian Watts, Annexure IW-19
12 Witness statement of Ian Watts, Annexure IW-8
13 Witness statement of Ian Watts, Annexure IW-8, p. 2
14 Transcript PN1118
15 Witness Statement of Ian Watts at [19]
16 Witness Statement of Ian Watts at [22]
17 Witness statement of Ian Watts, Annexure IW-11
18 Witness Statement of Ian Watts, Annexure IW-11
19 Witness Statement of Ian Watts at [25]; Annexure IW-12
20 Witness Statement of Tami Gagulich at [36]
21 Witness Statement of Ian Watts at [28]
22 Witness Statement of Ian Watts, Annexure IW-13
23 Witness Statement of Ian Watts at [29], Witness Statement of Tami Gagulich at [22]
24 Witness Statement of Ian Watts at [30]; Annexure IW-14; Witness Statement of Tami Gagulich at [23]; Annexure TG1
25 Witness Statement of Tami Gagulich, Annexure TG1, p.3
26 Witness Statement of Ian Watts at [31]; Witness Statement of Tami Gagulich at [25]
27 Witness Statement of Ian Watts at [32]; Witness Statement of Tami Gagulich at [26]
28 Witness Statement of Ian Watts at [35]
29 Witness Statement of Ian Watts at [37], Annexure IW-17; Witness Statement of Tami Gagulich at [27], Annexure TG3
30 Witness Statement of Ian Watts at [38], Annexure IW-18; Witness Statement of Tami Gagulich at [28], Annexure TG4
31 Transcript PN 1118
32 Witness Statement of Ian Watts at [14]
33 Transcript PN 1117-1192
34 Transcript PN 1154
35 Respondent’s Final Submissions at [73], Applicant’s Final Submissions at [94]
36 Applicant’s Final Submissions at [96-97]
37 Applicant’s Final Submissions at [98-99]
38 Respondent’s Final Submissions at [73]
39 Witness Statement of Kyle Sensiba at [9(c)]
40 Applicant’s Final Submissions at [69]
41 Transcript PN 408-410, PN 483
42 Transcript PN 412
43 Transcript PN 484
44 Transcript PN 413
45 Transcript PN 1389
46 Transcript PN 719, PN 722
47 Transcript PN 719
48 Transcript PN 1364
49 Transcript PN 1369
50 Transcript PN 1370-1371
51 Transcript PN 1373
52 Transcript PN 1374
53 Telephone Call 2
54 Telephone Call 2
55 Transcript PN 398-401
56 Transcript PN 451
57 Transcript PN 1353
58 Transcript PN 400
59 Witness Statement of Kyle Sensiba at [9(b)]
60 Annexure KS-2
61 Transcript PN 393
62 Transcript PN 392
63 Transcript PN 395
64 Transcript PN 1342
65 Transcript PN 1346-1347
66 Transcript PN 1351
67 Annexure IW-1, 4(b)
68 Annexure IW-3, 7.4
69 Transcript PN 360, Witness Statement of Kyle Sensiba at [9(a)]
70 Annexure KS-1, Transcript PN 364
71 Annexure KS-1
72 Transcript PN 384
73 Transcript PN 1297
74 Transcript PN 1309
75 Transcript PN 1325, PN1328
76 Witness Statement of Kyle Sensiba at [10]
77 Transcript PN 439
78 Witness Statement of Kyle Sensiba at [10]
79 Witness Statement of Ian Watts at [22(d)]
80 Transcript PN 1032
81 Transcript PN 442
82 Transcript PN 443
83 Transcript PN 444
84 Witness Statement of Kyle Sensiba at 9(e)
85 Transcript PN 420-421, PN 493
86 Transcript PN 494
87 Annexure KS-3
88 Transcript PN 434
89 Transcript PN 422-427
90 Transcript PN 146
91 Transcript PN 149
92 Transcript PN 1404
93 Transcript PN 1413
94 Transcript PN 1415
95 Witness Statement of Kyle Sensiba at 9(f), Transcript PN 1446
96 Transcript PN 499
97 Transcript PN 500
98 Transcript PN 501
99 Transcript PN 502
100 Transcript PN 151, PN 152, PN 503
101 Transcript PN 1512
102 Applicant’s Final Written Submissions at [34]
103 Annexure IW-15
104 Applicant’s Final Written Submissions at [32]
105 Annexure KS-5
106 Transcript PN 182
107 Transcript PN 508, PN 536
108 Transcript PN 537, PN 539
109 Transcript PN 540
110 Transcript PN 543
111 Transcript PN 539
112 Transcript PN 547-549
113 Transcript PN 183, PN 509
114 Transcript PN 530
115 Transcript PN 184, PN 516
116 Transcript PN 521-522
117 Transcript PN 194, PN 571
118 Transcript PN 184
119 Witness Statement of Tami Gagulich at [33], Transcript PN 194
120 Transcript PN 551
121 Transcript PN 552
122 Transcript PN 552
123 Transcript PN 553
124 Transcript PN 1681
125 Transcript PN 1683
126 Transcript PN 1634
127 Transcript PN 1684
128 Transcript PN 1683, Annexure KS-5
129 Transcript PN 1587, PN 1594, PN 1633
130 Transcript PN 1647
131 Transcript PN 1686
132 Transcript PN 966
133 Transcript PN 967
134 Transcript PN 970
135 Transcript PN 980
136 Transcript PN 982
137 Transcript PN 977
138 Respondent’s Final Submissions at [50]
139 Applicant’s Submissions in Reply at [18]
140 Applicant’s Submissions in Reply at [20 – 21]
141 Witness Statement of Ian Watts at [3]
142 Witness Statement of Ian Watts at [26(c)]
143 Transcript PN 843
144 Transcript PN 843
145 Transcript PN 158
146 Transcript PN 159
147 Transcript PN 866
148 Witness Statement of Kyle Sensiba at [9(g)]
149 Annexure KS-5
150 Witness Statement of Kyle Sensiba at [9(g)]
151 Annexure KS-5
152 Transcript PN 1554
153 Transcript PN 1459, PN 1550
154 Statement of Ian Watts at [26(d)]
155 Transcript PN 163, PN 573
156 Transcript PN 573
157 Transcript PN 171
158 Transcript PN 575
159 Transcript PN 577
160 Transcript PN 576
161 Transcript PN 585
162 Transcript PN 590
163 Annexure IW- 15
164 Applicant’s Final Written Submissions at [51]
165 Applicant’s Final Written Submissions at [42], [51]
166 Transcript PN 1549-1551
167 Transcript PN 942
168 Transcript PN 1537
169 Transcript PN 1539
170 Transcript PN 1543
171 Transcript PN 1544
172 Transcript PN 1545
173 Transcript PN 1546
174 Transcript PN 1547
175 Transcript PN 1565, PN 1568
176 Witness Statement of Ian Watts at [26(e)]
177 Witness Statement of Tami Gagulich at [41]
178 Transcript PN 602, PN 605
179 Transcript PN 605
180 Transcript PN 608, 609
181 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69]
182 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373
183 Ibid
184 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685
185 Hatwell and Another v Esso [2018] FWC 2398 at [76]
186 Hatwell and Another v Esso [2018] FWC 2398 at [76]
187 Applicant’s Final Written Submissions at [1]
188 Applicant’s Outline of Submissions at [10], Applicant’s Final Submissions at [120]
189 Applicant Submissions in Reply at [48]
190 Applicant’s Final Written Submissions at [2], Applicant’s Submissions in Reply at [51]
191 Applicant’s Outline of Submissions at [17-19]
192 Applicant Final Written Submissions at [119]
193 Applicant Submissions in Reply at [40-46]
194 Annetta v Ansett Australia (2000) 98 IR 233
195 Respondent’s Outline of Submissions at [4], [11-13]
196 Respondent’s Outline of Submissions at [11]
197 Respondent’s Final Written Submissions at [4], see also submissions at [58]
198 Annexure IW-19
199 Annexure IW-6
200 Transcript PN 385
201 Transcript PN 384
202 Annetta v Ansett Australia (2000) 98 IR 233
203 Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137, 151
204 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998)
205 Ibid
206 (2000) 98 IR 137
207 Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137, 151
208 Respondent’s Outline of Submissions at [14]
209 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75]
210 RMIT v Asher (2010) 194 IR 1, 14-15
211 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7
212 [1996] IRCA 568; cited in Dover-Ray v Real Insurance Pty Ltd[2010] FWA 8544
213 Applicant’s Outline of Submissions at [32], Applicant’s Final Submissions at [2]
214 Applicant’s Outline of Submissions at [38]
215 B v Australian Postal Corporation (2013) 238 IR 1
216 Applicant’s Outline of Submissions at [17-19]
217 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6–7]
218 Applicant’s Outline of Submissions at [47]
219 See Ellawala v Australian Postal Corporation (AIRCFB, Print S5109, 17 April 2000) at [33]; and see Bowden v Ottrey Homes Cobram and District Retirement Villages Inc.[2013] FWCFB 431
220 Respondent’s Closing Submissions at [79(a)]
221 Ellawala at [59] and [60]
222 Respondent’s Closing Submissions at [79(c)]
223 Witness Statement of Ian Watts at [17]
224 Applicant’s Outline of Submissions at [48]
225 Annexure TG -5
226 Transcript PN 252
227 Respondent’s Closing Submissions at [79(g)]
228 Transcript PN 246
229 Transcript PN 248
230 Transcript PN248
231 [2018] FWC 3568
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