Thuyen Trieu v Monash University

[2012] FWA 8812

[2012] FWA 8812

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Thuyen Trieu
v
Monash University
(U2012/7732)

COMMISSIONER GAY MELBOURNE, 18 OCTOBER 2012

Termination of employment - jurisdiction.

[1] The following decision, now edited, was given in transcript at the conclusion of proceedings in Melbourne on 4 October 2012.

[2] “In giving the reasons that I have indicated I will give now, it is necessary to note several things. It is frequently said that while a submission or an argument is not repeated, it has been had regard for, that is, that one that has been paid full attention to and noted, all the argument put. And in this case it is so. I would hope that anyone observing the case would have seen that there was a close attention paid to what’s been put. By not now repeating everything, it should not be thought that some particular evidence or argument has been disregarded.

[3] It is true that in this case the applicant, Ms Trieu’s, unrepresented status provided some difficulties, but not such as were not able to be overcome, in my view.

[4] I will say something about the background to the employment in question and note that Ms Trieu’s employment commenced at Monash University (Monash, the university) in May 2011 at the records and archives branch of the university as a record systems support assistant. The important nature of those duties reflects the special need for a university to maintain, it seems to me, high quality records. And Monash says this is accomplished by the use of a software system called the Total Records Information Management System, or TRIM. It was Ms Trieu’s responsibility, with some handful of colleagues, to assist in the running of the TRIM system by answering queries to the TRIM help desk, responding to emails, by uploading information, by including bulk information into the system, and by conducting training sessions for Monash staff.

[5] Other tasks also form part of her duties. They are not here repeated. It was said by the respondent, that is Monash, that the illness which unfortunately affected Ms Trieu in 2010 meant that Ms Trieu settling into the role was disrupted, but that significant additional assistance and training was given to Ms Trieu, particularly by Ms Cauchi her manager. This support was given in large part by Ms Cauchi, to whom Ms Trieu reported. The view of Monash as to Ms Trieu’s service is that increasingly – and dealing with some of these issues is, of course, not without difficulties and one appreciates there are sensitive issues involved, nevertheless, the position of Monash is that it became apparent that Ms Trieu required continuous, very regular ongoing training and support in many of her basic tasks.

[6] Key examples of the poor performance were given by Monash as – and these are not accepted by the applicant, but this is what is said for Monash – examples were accessing the TRIM web client, a task which it is said should have been straight forward, but despite Ms Cauchi’s additional support, Ms Trieu had great difficulty with processing bulk emails, and mail mergers into the TRIM, a task that have already mentioned. This latter process which on occasion required interaction with the providers of the document, but which in the submission of Monash, in Ms Trieu’s case, saw Ms Trieu altering documents. This act was said to have caused serious complications and compounding of error. And finally, Ms Trieu failed to satisfactory carry out the TRIM training sessions.

[7] In the respondent’s case – so this is on the part of Monash – in June 2010 Ms Trieu was given a performance appraisal which in its written format highlighted her strengths, and which on the other hand included or noted Ms Trieu had frequently asked Ms Cauchi about tasks which had been the subject of previous attention and also the need for initiative on Ms Trieu’s part. In August 2011 a meeting occurred with Ms Cauchi, Ms Nicholls the university’s records manager, Ms Trieu, and Ms Drummond of the human resources department. The meeting saw a review of Ms Trieu’s position description, with the outcome being that weekly meetings would henceforth be held with Ms Trieu and Ms Cauchi. The first of the meetings, I think commencing on 15 August 2011, progressed smoothly with the applicant shown errors and examples of her work having taken too long. Specific tasks were set by Ms Cauchi.

[8] At the following two weekly meetings Ms Trieu’s imperfect performance was discussed and further examples were given. It is said also that the work that had been set was not successfully completed. Ms Nicholls attended the third of those meetings. It is the Monash position that Ms Cauchi and Ms Nicholls were concerned that Ms Trieu’s capacity to understand and apply simple, standard directions and remember instruction given frequently may have been inhibited by a medical condition. Steps were advised at the third meeting whereby Ms Trieu might confidentially raise such medical concerns if she chose to do so. Ms Trieu did not take up that offer.

[9] By early September 2011 Monash determined to place Ms Trieu on a formal performance management plan. On 5 September Ms Trieu commenced a lengthy absence which saw her use sick leave, perhaps annual leave used, it meant in any event that ultimately Ms Trieu was placed on leave without pay. Is it particularly noteworthy that on 27 September Ms Joanne Turner, Monash Manager Employee Assistance, contacted Ms Trieu’s union representative to “ask if the university could assist her”. On 5 October Ms Trieu lodged a WorkCover claim alleging stress from hostility from her management, and I use that short-hand term. It is useful to take up the narrative from the university’s written outline at paragraph 22, and this is paragraph 22 of Exhibit M6:

“The applicant’s WorkCover claim was rejected by CGU, the respondent’s WorkCover insurer. The insurer’s view was that the respondent had taken reasonable management action to address concerns regarding the applicant’s performance. As the applicant’s WorkCover claim was rejected, the respondent was not legally required to provide alternative duties and/or a return to work plan. However, in October 2011 the respondent engaged at its own expense an occupational rehabilitation provider, Resolutions RTK, and in particular Ms Christine Theisz to assist the applicant with advertised roles both internal and external to the respondent.”

[10] On 11 November a medical certificate was issued certifying that while Ms Trieu was fit to return to her duties, or similar duties, that she ought not return to her previous department. Ms Theisz regularly liaised, although only rarely in person, with Ms Trieu and had discussed Ms Trieu applying for internal vacancies at Monash and had explained to Ms Trieu that Monash was not obliged to provide alternative work. On 19 January the applicant appealed the rejection of her WorkCover claim and an agreement was reached settling the matter without admission of liability. In early February positions which were thought by Monash might be suitable for Ms Trieu, for example two library positions, (given that Ms Trieu says she is a trained librarian), were brought to her notice by Ms Theisz and there was further amicable interaction between Ms Theisz and Ms Trieu’s union representative.

[11] It may be that I made a mistake there. It may be Ms Turner, but in any event an agent acting for Monash. The union representative expressed a positive view about what was put. That is at attachment JT10 to Exhibit M5, the statement of Ms Turner. A statement of service was provided on 21 March to assist Ms Trieu to obtain employment. It was understood that Ms Trieu would seek employment at Monash and generally. Ms Turner arranged the statement of service of 21 March 2012. On 22 March 2012 with the applicant having been absent since 5 September 2011 – now I am not entirely certain of those dates, but I think that they are right – Ms Theisz asked Ms Trieu for advice as to her ongoing medical capacity.

[12] On 18 April Monash received a psychologist’s report suggesting that a facilitated meeting occur between Ms Trieu and Ms Cauchi. It is not entirely clear, but it may be that Mr Adler, the psychologist, was, in an entirely well-meaning way, endeavouring to resolve the return to work impasse by having the parties deal carefully, but directly, with each other. In any event, the meeting did not occur as Ms Trieu held to her position – as she was entitled to do – that she would not return to the original work area. So, that meeting did not occur. The following Monday, 23 April 2012, Ms Trieu sent an email to Ms Turner resigning her employment with immediate effect.

[13] Ms Trieu made it clear in her resignation that she would not return to records and archives and work with Ms Cauchi because of the previously experienced bullying, and noting that Monash University had not provided any redeployment assistance and had insisted that she return to Records. Ms Turner responded to Ms Trieu to refute some of those suggestions on 24 April 2012. Monash for its part denies absolutely that any bullying had taken place and that there had not been redeployment assistance from the university. For Monash, there is no question the resignation was other than freely given, and equally, that there is no course of conduct capable of grounding a constructive dismissal.

[14] The case for Ms Trieu was very much in the alternative to that put by Monash. For Ms Trieu, a skilled TRIM trainer, her engagement at level HE6 was well within her capabilities, technically and pedagogically. I have paid close regard to Ms Trieu’s emotion-laden account of the change that she perceived in her treatment within the department as she was ostracised, given diminished duties, and removed from her TRIM teaching or instructor role. Ms Trieu’s evidence was that after the positive performance appraisal earlier in her employment she was shocked to notice the change in treatment meted out to her, most particularly by Ms Cauchi, who was said to have, after a time, yelled and screamed at Ms Trieu some six or seven times a day.

[15] Ms Trieu gives no credit to Monash for attempting, through the device of Ms Theisz, to assist her return, and with Ms Turner, to alternative positions opened up for consideration. That is if Ms Trieu held to her position of declining to consider a return to work or resumption of work in the old area, even on some managed basis. In this case there is no evidence of the steps that are very frequently, almost inevitably taken, to at least explore how it could be that, with care, there might have been a reconstruction of relationships such as to see in some thoughtful way, Ms Trieu resume her duties. For Ms Trieu, fundamental reliance was placed on the “satisfactory” status given by the early performance appraisal.

[16] In the course of the case this was very frequently questioned, as to how it could be that that early, kindly appraisal could have been, not very long after, revisited and Ms Trieu’s performance found to be less than adequate. Ms Trieu does not accept that reservations were expressed by Ms Cauchi and Ms Nicholls as to the repeated basic instruction being necessary, and that questions were frequently put to Ms Cauchi as to such matters day after day, that is, questions were put by Ms Trieu to largely, I think, Ms Cauchi. It is not accepted that those points were put verbally at the performance appraisal. In my view, they were put. Ms Trieu emphasised that support and tools to assist her were also taken away which made her performance even more difficult.

[17] It will be appreciated that to successfully seek relief under this section of Fair Work Act 2009 (the Act), or indeed to even make an application in the sense of lodging an application, it must be that there has been a termination of employment. And it cannot be related to the termination at the conclusion of employment freely entered to by an employee. Section 386(1) sets out the main basis for involuntary termination. They are firstly termination, and that is when an employee is turned away, is dismissed. Secondly, where an employee has resigned, but because they were forced to resign because of conduct or a course of conducted engaged in by the employer. Some examples were scenarios we discussed during the conduct of the case.

[18] Monash put that it cannot be said that Ms Trieu was forced to resign, and rather, it is said that this was Ms Trieu’s own voluntary act. Did Monash engage in conduct which forced as Ms Trieu’s responsive act, the resignation because there was no reasonable choice? In the circumstances of this case I am of course aware of the period of Ms Trieu’s absence from the workplace; that she was not being paid; that Ms Trieu claimed to have been bullied – and this was strongly rejected by Monash; that there had been a settlement of the WorkCover claim without admission by either side and with Monash not obligated to sponsor and provide suitable return to work duties as would regularly apply under the Accident Compensation Act; that Monash had nevertheless provided a specialist consultant, Ms Theisz, whose evidence I have accepted, to assist.

[19] Ms Theisz’s assistance was arranged at the behest of Ms Turner, Monash’s Welfare and Assistance Manager, and arranged at some real expense, unquantified, but unlikely to be negligible by Monash. As I have recounted Ms Trieu had provided a certificate of capacity permitting a resumption of work, but not in the department with her alleged bulliers. Alternative positions had been canvassed with Ms Theisz and Ms Turner, but none seemed satisfactory. Certainly none were taken up by Ms Trieu. One was over-graded in an area where Ms Trieu felt she was qualified but underprepared, and the other, also in the library was at a lower classification level. Of course one cannot speculate, but it might have provided a niche for a resumption of Ms Trieu’s career. In any event, it did not occur. I have noted Ms Turner’s evidence that a return to work frequently requires active, responsive participation from both sides.

[20] I am not proposing to deal with all the evidence. I will, however, indicate that I have accepted the evidence of Ms Cauchi where it conflicted with that of Ms Trieu. This has at its epicentre a finding that Ms Cauchi did not yell and scream at Ms Trieu six or seven times a day. I am going to deal generally and specifically as to the submission in Exhibit T1 where it is said – I do not accept the general evidence to that effect. There is no evidence that supports it. I prefer Ms Cauchi’s evidence. It was given in a fashion which in my view reflected that of a conscientious witness. In relation to the specifics, I have noted the submission in Exhibit T1 where it is said by Ms Trieu that the notes of 22 August 2011 meeting reflect Ms Trieu asking Ms Cauchi not to yell and scream at her. I have not thought that the notice reflected that at all.

[21] Ms Turner and Ms Theisz, in my view, were very impressive witnesses and I accepted their evidence. Both, it seems to me, were conscientiously striving to assist Ms Trieu reintegrate into the Monash and even broader workplace, if that was to be necessary. I turn now to the 23 April resignation. I note the assertion as to bullying and that Monash was said in the resignation to have not provided any assistance in redeploying Ms Trieu.

[22] One is of course sympathetic to the position in which Ms Trieu found herself, and the economic difficulty bearing upon her. I must, however, consider whether the resignation was freely given; given of her own free will. I have found there was no course of conduct of the necessary type to support a conclusion favouring Ms Trieu. While no position had been found, there remained options and active measures underway to assist Mr Trieu. The primary example is at Ms Trieu’s psychologist’s suggestion, and I have already mentioned Mr Adler’s effort over the days immediately preceding the resignation. These presented that opportunity, the offer of Mr King the staff officer given to the NTIEU representative.

[23] The efforts of Ms Theisz and Ms Turner all have me conclude that there were a range of opportunities, in a difficult situation to be sure, which still presented themselves to the parties as providing an opportunity to see the imbroglio, largely I found of Ms Trieu’s making, resolve. I am of course aware that Ms Trieu had secured employment in Sydney and accompanying difficulties, too, that that entailed, the attendant costs, and so on. And I have noted that that employment was contemporaneous with the resignation. In my view, the resignation cannot be said by virtue of all these considerations to have been effected, or caused, or the result of a course of conduct of the necessary type engaged in by Monash, or that in any sense these events were such as to overbear Ms Trieu.

[24] Rather, I have found it was a resignation freely given. There was no termination of employment in my view, and for that reason the application must be dismissed. An order to that effect will issue in due course. I now adjourn.”

[25] An order to that effect is found in PR530198 dated 18 October 2012.

COMMISSIONER

Appearances:

T Trieu the applicant.

T Jacobs, of counsel, by permission, for Monash University.

Hearing details:

2012.

Melbourne:

October 3, 4.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR530197>