FEDERAL COURT OF AUSTRALIA

Short v Ambulance Victoria [2014] FCA 3

THE COURT ORDERS THAT:

1.    The application is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    On 14 July 2011 the respondent, Ambulance Victoria, terminated the employment of the applicant, Mr Short. At that time, Mr Short was employed as a qualified ambulance paramedic at the Lakes Entrance branch of Ambulance Victoria. Mr Short contends that, in terminating his employment, Ambulance Victoria contravened s 340(1) of the Fair Work Act 2009 (Cth) (“the Act”) by taking adverse action against him because he “vigorously” exercised his workplace rights by making inquiries and/or complaints in relation to his employment. Mr Short also submits that Ambulance Victoria breached s 340(1) of the Act by taking adverse action against him by the following conduct:

    its refusal to allow him to perform higher duties on 8 July 2010;

    its issuing of a formal warning to him on 9 November 2010; and

    its standing down of him on 20 February 2011.

Mr Short makes associated claims of “discrimination” by Ambulance Victoria contrary to s 351(1) of the Act on the basis of his alleged mental disability and breach of the implied term of mutual trust and confidence in his contract of employment. Mr Short also alleges that Ambulance Victoria breached cl 59.6 of the Ambulance Victoria Agreement 2009 (“the Agreement”) in relation to a disciplinary dispute thereby contravening s 50 of the Act.

2    Ambulance Victoria is a “public entity” within the meaning of the Public Administration Act 2004 (Vic). It resulted from the merger of Rural Ambulance Victoria, Metropolitan Ambulance Service and the Alexandra and District Ambulance Services. Ambulance Victoria denies that it breached the Act, in any respect, as claimed by Mr Short.

3    Mr Short commenced employment with the Metropolitan Ambulance Service in March 1999 as a supply officer. In August 2000, he became a student Ambulance Paramedic. On 2 December 2004, Monash University awarded Mr Short a Diploma of Ambulance Paramedic Studies. In May 2005, Mr Short became employed by Rural Ambulance Service and commenced work at its Lakes Entrance branch as an Area Reliever Paramedic. In late 2006, Mr Short ceased to be engaged as a reliever and held the position of Ambulance Paramedic based at Lakes Entrance. Mr Short remained in this position until Ambulance Victoria terminated his employment on 14 July 2011.

Refusal of higher duties

The facts

4    In 2010, Mr Robert Standfield was the Team Manager at the Lakes Entrance branch of Ambulance Victoria. On 5 February 2010, Mr Standfield sent an email to members of the Lakes Entrance branch, including Mr Short. The email referred to two periods of upward relief in which employees would be able to act in the position of Team Manager during Mr Standfield’s absence. The first period was 15 February 2010 to 14 March 2010. The second period was 2 August 2010 to 3 October 2010. The email requested expressions of interest by email as soon as possible. The email implied that those responding to it would be supplied with a copy of the new position description for Team Manager. On 19 February 2010, Mr Short responded, saying, “I am interested. Could you forward me a copy[?]” By this time, the first period of upward relief had commenced.

5    On 23 February 2010, Mr Standfield responded to Mr Short, advising that Mr Dave Jones was “doing the current stint”. In reference to the period commencing on 2 August 2010, Mr Standfield said “we can look at splitting the next nine week stint if there is more than one interested party”.

6    On 15 April 2010, Mr Mark Cooke, Regional Manager – Gippsland for Ambulance Victoria sent a circular to Gippsland Region Operational Staff, including Mr Short, inviting expressions of interest in higher duties roles “for the remainder of 2010” for positions including that of “Team Manager”. The circular relevantly stated:

Please be aware that the submission of an EOI does not automatically entitle an employee to an opportunity as final selection will be based on availability, suitable qualifications and experience, and demonstrated attributes required for each role.

7    Expressions of interest were required by 9 May 2010. On that day, Mr Short sent an email to Ms Shana Reid, Regional HR Partner – Gippsland for Ambulance Victoria expressing interest in “higher duties for the remainder of 2010 in the position of Team Manager”.

8    On 8 June 2010, Mr Standfield advised team members, including Mr Short, that Mr Jones would fill the Team Manager position at Lakes Entrance from 14 June to 11 July 2010 whilst Mr Standfield relieved as Group Manager. On 10 June 2010, Mr Short emailed Mr Standfield regarding the nine week period commencing on 2 August 2010. Mr Short asked Mr Standfield to contact him about the matter. Mr Standfield replied that he would catch up with Mr Short over the next couple of weeks.

9    Mr Standfield and Mr Short met on 18 June 2010. Mr Short was then on sick leave. The sick leave commenced on 16 June 2010 and concluded on 26 July 2010. Mr Short was suffering from a stress related condition.

10    Mr Short’s notes of the 18 June meeting with Mr Standfield are in evidence. The notes show that the men discussed whether Mr Short would still be interested in the upward relief period commencing on 2 August. Mr Standfield assumed that he would not be interested because of his stress condition but Mr Short was adamant that he would be interested. Mr Standfield informed Mr Short that, as one other person was interested in the upward relief at that time, an interview process would be required. According to Mr Short’s notes, Mr Standfield said that as Mr Short “would most likely be on Workcover and then annual leave” it would be impossible for him to be interviewed. Mr Short’s notes record that he and Mr Standfield had already agreed that Mr Short would “upward relieve for this 9 week period” in a conversation four weeks beforehand.

11    At the meeting, according to Mr Short’s notes, Mr Standfield said he did not know why Mr Short was “off work” but “had heard about some incident at Bairnsdale over the weekend”. The “incident” concerned alleged inappropriate behaviour directed towards Mr Short by Acting Team Manager Dave Moors at Bairnsdale after Mr Short had completed a 14 hour shift.

12    On 18 June 2010, Mr Short made a formal complaint about Mr Moors behaviour in what was called the “linen skip incident”. In that incident, Mr Moors and Mr Short had a dispute about whether Mr Short should take certain cleaning up action in respect of an over-filled linen skip. Mr Moors was alleged to have engaged in inappropriate behaviour “both verbally and physically” towards Mr Short.

13    By letter dated 21 June 2010 addressed to Mr Cooke, Mr Short made a formal complaint about Mr Standfield’s “continual long term inappropriate behaviour”. In the letter, Mr Short said “over the past week I have been discriminated against by Robert Standfield, and that discrimination is still continuing”.

14    By email dated 8 July 2010, Mr Standfield advised Mr Short that due to the short time frame between his sick leave finishing on 26 July and the commencement of upward relief on 2 August “it is not suitable for you to perform the role”.

15    Given the importance of the email to an issue to be discussed later in these reasons, the Court sets it out in full, omitting formal parts:

Hi Darren,

I hope you are well on the way to recovery.

In reference to the upcoming 9 week higher duties opportunity for Acting Team Manager Lakes Entrance, I do not intend to proceed with the interview process as I proposed to you previously. I am now aware that a competitive process need only apply if the period is longer than 3 months, at which time the upward relief would be considered a secondment rather than higher duties.

As your sick leave/workcover is ongoing until at least the 26/7/10 and the period of higher duties is due to commence on 2/8/10, I feel that due to the timeframe on this occasion it is not suitable for you to perform the role.

I am proposing that when we are both back at work in October I would like to have a meeting with you to discuss future opportunities for higher duties into my position, which will include any areas for improvement or development that is required of you beforehand. It is also important that I make you fully aware of the responsibilities and functions of the Team Manager role, as it differs from the old Station Officer role, including who is available to support you whilst performing the role (ie Group Manager, HR Partner, OHS Advisor etc).

16    The decision not to offer the higher duties role to Mr Short was made by Ms Debra Ray, the Group Manager for Gippsland after she discussed the matter with Mr Standfield and a human resources employee in Morwell.

Alleged contravention of s 340(1)

17    Under s 340(1)(a)(i) of the Act, a person must not take adverse action against another person because the other person has a workplace right. Pursuant to s 341(1)(c), a person has a workplace right if the person is an employee who is able to make a complaint or inquiry in relation to his or her employment. Adverse action includes action taken by an employer against an employee if the employer alters the position of the employee to the employee’s prejudice; see s 342(1), Item 1 of the Act.

18    Counsel for Mr Short submit that Ms Ray and Mr Standfield took adverse action against their client by refusing to permit Mr Short to perform higher duties in the nine week period from 2 August 2010. The adverse action was said to have been taken, in part, because Mr Short had made an inquiry about his application to perform higher duties. Counsel for Ambulance Victoria accept that prior to Mr Short being told that he would not be performing higher duties, Mr Short had made a complaint or inquiry in relation to his employment. However, counsel for Ambulance Victoria contends that his client did not take prohibited adverse action against Mr Short by refusing to permit him to perform higher duties.

19    In a predecessor provision to the legislative scheme provided currently by ss 340, 341 and 342 of the Act, the High Court in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at [4] discussed the meaning of the words “alter the position of an employee to the employee’s prejudice”. There, the plurality said that expression encompassed:

…a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question. 

20    Counsel for Ambulance Victoria submits that, as at 8 July 2010, Mr Short only had an expectation that he would be interviewed for a position, which interview would not necessarily lead to him being appointed to the higher role for a temporary period. Counsel contends that disappointment of an expectation is not a diminution, adverse affection or deterioration in the advantages Mr Short enjoyed prior to 8 July 2010.

21    In the email from Mr Standfield to Mr Short on 8 July 2010, Mr Standfield told Mr Short that he “did not intend to proceed with the interview process as I proposed to you previously. I am now aware that a competitive process need only apply if the period is longer than 3 months, at which time upward relief would be considered as a secondment rather than higher duties”. The email thereby explained why a previous offer of an interview was withdrawn. It then went on to say that the timeframe of Mr Short’s return to work and the commencement period for higher duties did not make him suitable for the role.

22    Was the withdrawal of the interview offer a deterioration of an advantage enjoyed by Mr Short? The answer is “no” if there was no right to the interview. Mr Standfield was cross-examined in the proceeding but was not taken to that matter.

23    Counsel for Mr Short also relies on s 342(1), Item 1(b) which refers to an employer injuring an employee in employment constituting “adverse action” under the Act. In Patrick Stevedores, the plurality said (at [4]) that this expression was intended to cover “injury of any compensable kind”. It is difficult to see how the withdrawal of an offer for an interview which was not required but offered in error, can lead to a compensable injury. As there was no obligation on Ambulance Victoria to provide an interview, no injury of a compensable kind was occasioned by the withdrawal of an offer of an interview.

24    Counsel also refer to s 342(1) Item 1(d), which prohibits discrimination between an employee and other employees. There is no basis for the allegation that by withdrawing the offer of an interview from Mr Short, Ambulance Victoria discriminated against him. No other employee received an interview.

25    In the event that the Court is in error as to whether the withdrawal of the offer of the interview constitutes adverse action, the next question which arises is whether the withdrawal of the interview and the decision not to appoint Mr Short to a higher duties position was taken because Mr Short had made a complaint or inquiry in relation to his employment. In this respect, the Court has the credible, probative and uncontradicted evidence of Mr Standfield to the following effect:

    Mr Short had been off work for a considerable period of time with a stress condition and it would not be wise to place him in a stressful role on his return;

    having been away for a considerable period of time from the Lakes Entrance branch, Mr Short would not be aware of the current situation at that location;

    Mr Short’s previous complaints in relation to his employment played no role in the decision not to give him the higher duties role.

26    Ms Ray said that her decision had nothing to do with Mr Short’s previous making of inquiries or complaints in relation to his employment. His mental disability, she said, also played no role. According to Ms Ray, Mr Short was not suitable for the Team Manager role because he had been on sick leave and because of his “often explosive” behaviour. Ms Ray also said that Mr Short’s “communication style was a problem”.

27    Based on the above evidence, the Court considers that Ambulance Victoria has discharged the onus placed on it by s 361 of the Act to show that its decision not to appoint Mr Short to the higher duties role was not taken for a reason which included the reason that Mr Short had made a complaint or inquiry in relation to his employment.

Alleged breach of s 351 of the Act

28    Counsel for Mr Short submit that the withdrawal of the interview for the higher duties position and the failure to appoint Mr Short to that position was taken because of the stress injury that Mr Short had suffered and reported to Ambulance Victoria.

29    On 18 June 2010, Mr Short made a Workcover claim in which he described his injury as a “psychological injury”.

30    In the claim form, Mr Short alleged that he had been “pursued around workplace by manager being intimidated and harassed by the managers [sic] actions and verbal comments”. Mr Short named Acting Team Manager Dave Moors as the cause of the injury. Mr Moors was the person who allegedly verbally abused Mr Short in relation to the linen skip incident referred to at [12] above. Mr Short also wrote on the form that “psychological issues” were preventing his return to work.

31    So far as is currently material, s 351 of the Act prohibits the taking by an employer of adverse action against an employee because of the employee’s “mental disability”. On the assumption that Mr Short had a mental disability, I accept the evidence of Mr Standfield that he did not reject Mr Short for the higher duties role because of Mr Short’s mental disability, but because Mr Standfield considered that Mr Short needed time to recover before taking on a more stressful role which might aggravate his condition. To the extent that Mr Standfield may have been influenced by Mr Short’s stress condition, s 351(2) of the Act renders what would otherwise constitute adverse action as action not in breach of s 351. That is because, under s 351(2)(b) of the Act, action taken because of the inherent requirements of the particular position concerned is not action to which s 351(1) applies. According to Mr Standfield, it was an inherent requirement of the Acting Team Manager role that the occupant be subject to stress, as the position involved numerous tasks and responsibilities in addition to regular paramedic work. He was not challenged on this aspect of his evidence and there is no reason to doubt its veracity.

Mutual trust and confidence

32    Counsel for Mr Short next allege that the action of Mr Standfield in sending the email of 8 July 2010 to Mr Short informing him that it would not be suitable on this occasion for him to perform higher duties constituted conduct in breach of the implied term of mutual trust and confidence in his contract of employment with Ambulance Victoria.

33    This contention is rejected. The content of the implied term was discussed in Commonwealth Bank of Australia v Barker (2013) 214 FCR 450.

34    In Barker, at [98], Jacobson and Lander JJ said:

The term which has been stated in most of the authorities is that the employer will not, without reasonable cause, conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.

35    It is difficult, on an objective reading of the 8 July 2010 email, to form the view that the effect of it or its intention was to destroy or seriously damage the relationship of confidence between Mr Short and Ambulance Victoria. The last paragraph of the email (which is quoted fully at [15] above) creates the opposite impression. It shows that Mr Standfield was prepared to assist Mr Short in getting a future role in an acting higher duties position. In addition, the evidence of Mr Standfield that Mr Short be spared a more stressful role shortly after returning to work from sick leave due to a stress condition conveys the opposite of an employer conducting itself in a manner likely to destroy or seriously damage the relationship between it and Mr Short.

36    The breach of the implied contractual term claim in respect of the higher duties role is not made out.

The formal warning

The facts

37    On 18 June 2010, Mr Short lodged a formal complaint against Mr Moors alleging inappropriate behaviour with respect to the Bairnsdale linen skip incident. That complaint is referred to at [12] above. On 21 June 2010, Mr Short lodged a formal complaint against Mr Standfield. That complaint is referred to at [13] above.

38    Ambulance Victoria gave Mr Luddington, a Human Resources Advisor employed by it, the task to manage Mr Short’s complaints against Mr Moors and Mr Standfield. Mr Luddington met with Mr Short to discuss the complaints. Ambulance Victoria then engaged Ms Susan Zeitz as an external investigator to conduct the investigation.

39    By letter dated 30 August 2010, Ms Zeitz presented her report into her investigation into the complaints raised by Mr Short “against a number of officers most particularly David Moors and Rob Standfield”. Ms Zeitz found that Mr Short’s complaints were unsubstantiated. During the course of the report Ms Zeitz described aspects of Mr Short’s behaviour and communication style as “inappropriate”, “aggressive”, “bullying” and “intimidating”. Ms Zeitz also considered that Mr Short showed “unwillingness…to conduct himself in a manner that is consistent with his obligations as an employee”.

40    Ms Zeitz made recommendations designed to facilitate a return to a smooth working relationship between Mr Short and those who managed him in his employment.

41    Ambulance Victoria arranged for a meeting to be held at which time Mr Short was to be provided with a letter outlining the findings of Ms Zeitz’s report. In a meeting held on 15 September 2010, Mr Short was provided with a copy of the report.

42    By letter dated 11 October 2010, Mr Cooke asked Mr Short to attend a meeting at the headquarters of Ambulance Victoria in Doncaster at which Mr Luddington would also be present. The meeting was scheduled for 3 November 2010. The second paragraph of the letter said:

The purpose of this meeting is to discuss your behaviour towards management as highlighted in the recent Susan Zeitz investigation report, and to provide you with an opportunity to explain any mitigating circumstances that may have led to the above. Please be advised that, pending the basis [sic] of this discussion, a first formal warning may be issued.

43    The meeting on 3 November 2010 went ahead as scheduled. Apart from Mr Short and Mr Luddington, it was also attended by Mr Short’s support person, Mr Michael Carlisle and his union representative, Mr Steve McGhie and Ms Ray. During the course of the meeting Mr Short expressed a desire to be transferred out of the Lakes Entrance branch. Ms Ray outlined each element of alleged inappropriate behaviour by Mr Short as referred to in Ms Zeitz’s report. Mr Short’s response was given after he was afforded the opportunity to discuss the matter with Mr McGhie and Mr Carlisle.

44    At the end of the meeting, Ms Ray told Mr Short that Ambulance Victoria would issue him with a formal warning concerning aspects of his behaviour referred to the Zeitz report. Ms Ray told Mr Short that she wished to meet with him regularly to address these behavioural issues.

45    The formal warning was confirmed in a letter from Ms Ray to Mr Short dated 9 November 2010. The letter omitting formal parts, was as follows:

Dear Darren

Re:    Formal Warning

This letter is a first formal warning in relation to your work performance and follows the formal counselling session held on Wednesday 3 November at 375 Manningham Road, Doncaster. Also in attendance at this meeting were: Matt Luddington, HR Advisor; Steve McGhie, AEA-V and Michael Carlisle.

As discussed at the meeting your level of work performance is unacceptable. Of particular concern is your behaviour towards management and staff performing management roles.

Expected standards of behaviour can be found on the Ambulance Victoria intranet/policies and procedures and detailed in the Workplace Respect Policy and the Code of Conduct for Victorian public sector employees, a copy of which is included.

This unacceptable work performance with respect to your position as an Ambulance Paramedic is serious and must be addressed immediately as it negatively impacts on the efficiency and effectiveness of your team as well as the efficiency of the organisation as a whole.

As discussed at our meeting your ongoing performance will continue to be reviewed.

To assist you, as discussed, AV is prepared to offer assistance through regular mentoring and feedback sessions.

I am aware that you will be on annual leave for five weeks from November 15th so I would like to meet with you again when you return from leave on January 10th to progress this matter further.

As explained to you at our meeting last week, failure to meet the above requirements will mean further disciplinary action will be taken which may include termination of your employment.

I sincerely hope you can address these problems and remain happy to assist you where possible. If anything contained in this letter is unclear to you, please speak to me about it immediately.

46    Counsel for Mr Short contend that the formal warning was unfair to Mr Short because it arose out of the exercise of his workplace right to complain about Mr Moors and Mr Standfield. They also observe that the warning was relied on by Ambulance Victoria to support the termination of Mr Short’s employment the following July.

Alleged contravention of s 340(1)

47    The formal warning was “adverse action” within the meaning of the Act. It was issued after complaints were made by Mr Short in relation to his employment. The critical issue is whether the making of these complaints was an operative factor in the decision to issue to the warning.

48    The reasons for giving the warning are conveyed in Ms Ray’s letter of 9 November 2010. Ms Ray gave evidence that the decision to issue the warning came from “Mr Cooke and the HR Partners”. She said she agreed with them that the warning was appropriate and issued it.

49    The letter of 9 November 2010 draws particular attention to Mr Short’s alleged unacceptable work performance in the context of his behaviour towards people performing supervisory or management roles.

50    Ms Ray denied that Mr Short’s complaints about Mr Moors and Mr Standfield in any way motivated her decision. The same applied to Mr Short’s earlier complaints, such as in relation to the linen skip matter. Ms Ray was not challenged on that evidence.

51    Mr Luddington gave evidence that after reviewing the report of Ms Zeitz he had a discussion with Ms Ray, Mr Cooke and Ms Joanne Frankel regarding those parts of the report which highlighted some of the behaviour of Mr Short. Mr Luddington said:

We considered it appropriate to give Darren a first warning, on the basis of his behaviours as identified by Ms Zeitz.

52    Mr Luddington said he formed the view that the identified behaviour on its own justified the warning. He gave evidence to the effect that the fact that Mr Short had made complaints which led to the investigation by Ms Zeitz played no role in his view that the formal warning was justified. He gave the same response concerning other previous complaints made by Mr Short. Mr Luddington was not challenged on this evidence.

53    Ms Frankel was, at all material times, the Human Resources Manager for Ambulance Victoria. She gave evidence that she provided no advice about whether Mr Short should be issued with a warning in November 2010. She gave evidence that Mr Luddington did so and he reported to her. Ms Frankel also mentioned that Ms Susan Sadler was looking after the Gippsland region at the time.

54    Ms Sadler gave evidence that from December 2010 she was a Human Resources Partner employed by Ambulance Victoria with responsibility for the Gippsland region. She said she had no role in the formal warning being issued.

55    The unchallenged evidence of Ms Ray and Mr Luddington supports a finding, which the Court makes, that the decision by Ambulance Victoria to issue a formal warning to Mr Short was not taken for a reason or reasons which include the reason that Mr Short had made a complaint or inquiry in relation to his employment. The Court is also satisfied on the basis of the evidence of Ms Ray and Mr Luddington that the formal warning related to the conduct of Mr Short identified in the letter of 9 November 2010 and for no other reason, including other complaints made by Mr Short in relation to his employment such as the linen skip incident.

56    It is not the role of the Court to determine whether the warning was justified but rather to assess whether a prohibited reason contained in s 342(1) was the reason or part of the reason for his receiving a warning on 9 November 2010. For the foregoing reasons, the Court considers that it was not.

Mutual trust and confidence

57    Mr Short contends that Ambulance Victoria breached the implied term in his contract of employment not to conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between them by giving him the warning in November 2010. There is no basis for the proposition that the warning was issued without reasonable and proper cause. The Court will explain why presently. However, given that is the case, it does not matter that the warning arose out of a report made in response to complaints made by Mr Short.

58    Prior to the warning, Mr Short had several altercations with employees performing managerial roles. His poor communication style needed to be addressed. The morale of the ambulance service may have been impacted greatly if it tolerated repeat performances of impertinent conduct directed to employees in supervisory roles. Ambulance Victoria would have been derelict in its duty to provide a safe system of work, free of bullying, to all of its workers if it had not paid any attention to Mr Short’s behavioural deficits, as highlighted in the Zeitz report.

59    The 9 November 2010 letter from Ms Ray offered assistance to Mr Short “through regular monitoring and feedback sessions”. Far from seriously damaging trust and confidence between the parties, the warning letter was seeking to address Mr Short’s behavioural issues with a view to improving trust and confidence between the parties which, at that time, was lacking.

60    The Court does not accept that Ambulance Victoria breached the implied term by issuing the warning.

The failure by Ambulance Victoria to refer a grievance lodged by Mr Short regarding the warning to Fair Work Australia (“FWA”)

The facts

61    On 26 November 2010, Mr Short lodged a formal grievance against the warning given to him by Ambulance Victoria. He did so by sending an email on that day to Ms Ray. The grievance also concerned Ambulance Victoria’s refusal “to consider appropriately my request for transfer on medical grounds”. He sought the withdrawal of the formal warning and the reconsideration of his transfer request on medical grounds.

62    Ms Ray responded by email dated 30 November 2010. The response was as follows:

I have spoken to both Mark Cooke and Michael Brown re your request for transfer and grievance relating to the first written warning which was issued to you. As I stated in my previous email my advice to you is that your request for transfer is subject to there being a vacancy at the branch which you have requested to be transferred to, and that your request will be dealt with through the transfer policy. I have forwarded your EOI for Ballarat and Daylesford to the appropriate manager for consideration.

With respect to the first written warning, it is Ambulance Victoria’s position that this will not be withdrawn.

63    Clause 59 of the Agreement is headed “Disciplinary Process” and provides as follows:

59.1    Where disciplinary action is necessary, the management representative shall notify the employee of the reason. The first warning shall be oral and will be recorded on the employee’s personal file.

59.2    If the problem continues the matter will be discussed with the employee and a second warning in writing will be given to him/her and recorded on his/her personal file.

59.3    If the problem continues the employee will be seen again by management. If a final warning is to be given then it shall be issued in writing and a copy sent to the relevant Union.

59.4    In the event of the matter recurring, then the employee may be terminated. No dismissals are to take place without the authority of senior management.

59.5    Dismissal of an employee may still occur for acts of “serious and wilful misconduct”.

59.6    If a dispute should arise over the disciplinary action, other than termination of an employee who has not completed at least six months service with the employer, the course of action to be followed is that the matter shall be referred to Fair Work Australia for resolution. Such resolution shall be accepted by the parties as final. [Emphasis supplied].

59.7    If after any warning, a period of twelve months elapses without any further warning or action being required, all adverse reports relating to the warning must be removed from the employee’s personal file.

64    Clause 59.6 does not oblige a party to refer a dispute about the disciplinary process to FWA (now the Fair Work Commission). The clause rather assumes that that party who is dissatisfied with the outcome of a dispute about disciplinary action would be the party to refer the matter to FWA. There was nothing to stop Mr Short referring the matter. After all, he was the one who wished to challenge the first warning. Ambulance Victoria did not breach the agreement by not referring the dispute to FWA in circumstances where it had no obligation to do so.

The standing down

The facts

65    By letter dated 16 February 2011, Mr Short wrote to Ms Margaret Pettitt, General Manager, People & Community at Ambulance Victoria. The letter was headed “EEO Complaint”. The letter complained about Ms Zeitz’s investigation and the conduct of Ambulance Victoria towards Mr Short in relation to the investigation and its aftermath. The letter also referred to his request for a transfer, the lack of progress in that regard and its effect on his state of mind. The letter appended an opinion from Mr Short’s general practitioner and one from a psychologist, Dr Margaret Uebergang. Both documents referred to Mr Short’s suffering from a stress reaction relating to workplace issues.

66    Ms Sadler gave evidence of being concerned when she read Dr Uebergang’s letter. Ms Sadler formed the view that it was unsafe to permit Mr Short to continue working in a stressful environment (attending to road accidents and the like) when suffering from an acute stress reaction.

67    Ms Sadler raised the issue with Mr Simon Jemmett, Acting Regional Manager for the Gippsland region. Mr Jemmett, on Ms Sadler’s advice decided to stand down Mr Short on full pay until a fitness for duty assessment could be carried out.

68    On 22 February 2011, Mr Jemmett advised Mr Short by telephone of the stand down on full pay. He requested Mr Short’s permission for Ambulance Victoria to speak to Dr Uebergang. Mr Short consented, but took some six weeks to provide a written authority. In the meantime, Ambulance Victoria made an appointment for Mr Short to have a psychological assessment by a Dr Hosking. Dr Hosking assessed Mr Short on 18 April 2011. Dr Hosking assessed Mr Short as fit to return to work. She also recommended that he be transferred out of Lakes Entrance.

69    On 20 April 2011, Ambulance Victoria informed Mr Short that he had been assessed as fit to return to work and was rostered on for 27 April 2011.

Alleged contravention of s 340(1)

70    Counsel for Mr Short alleges that Ambulance Victoria took adverse action against Mr Short by standing him down because of his “EEO complaint” contained in his letter of 16 February 2011, including attachments.

71    Ambulance Victoria does not dispute that the standing down of Mr Short on full pay constitutes “adverse action”. It contends that its decision to stand down Mr Short was in no way related to the exercise of his workplace right to make an inquiry or complaint in relation to his employment. The better view of the evidence is that Ambulance Victoria stood down Mr Short on full pay because it had concerns about his capacity to deal with a stressful job while suffering from an acute stress reaction. I accept that the alleged prohibited reason formed no part of the reasoning of Ambulance Victoria.

The termination of employment

The facts

72    On 27 April 2011, Mr Short sent an email to Mr Standfield seeking to postpone some planned annual leave in May until August, given that he had returned to active duties only recently. Mr Standfield’s initial response to the request was positive, as revealed in an email he sent to Ms Ray to which Mr Short was copied in.

73    A meeting took place between Mr Standfield and Mr Short on 1 May 2011. Mr Short did not see the point in having a meeting and on 28 April 2011 emailed Mr Standfield seeking that he approve the leave change without a meeting. Nonetheless, the meeting went ahead. Mr Short recorded the meeting without Mr Standfield’s knowledge. It was not a pleasant one. At the start of the meeting, Mr Standfield told Mr Short that the leave change would not be approved. During the course of the meeting, Mr Short was extremely abusive towards Mr Standfield saying words to the effect that Mr Standfield:

    disgusted him;

    was a liar;

    made his skin crawl; and

    had no honour.

74    In colloquial parlance, Mr Short engaged in a complete “dummy spit”. He also told Mr Standfield that his morals were pathetic and words to the effect that he had affected the health of Mr Short’s family. On any view, this was clearly inappropriate, aggressive behaviour directed to a person in a managerial role of the very kind identified in the Zeitz report and for which Mr Short had received a first written warning.

75    Mr Standfield gave evidence to the effect that he was traumatised by Mr Short’s behaviour. Ms Ray gave evidence that Mr Short’s conduct towards Mr Standfield at the meeting had affected Mr Standfield’s confidence and his ability to manage the branch.

76    Counsel for Mr Short conceded correctly that Mr Short’s behaviour at the 1 May 2011 meeting with Mr Standfield was “appalling conduct”.

77    Subsequently, on 18 May 2011, Mr Standfield made a formal complaint about Mr Short’s behaviour on 1 May 2011. The letter accompanying the formal complaint referred to bullying behaviour by Mr Short which Mr Standfield considered to be “extremely distressing [and] intimidating”, and which caused him to feel “upset, anxious and nauseous for a considerable time after the event”.

78    Ambulance Victoria stood Mr Short down on full pay pending the investigation of the formal complaint made by Mr Standfield. Ambulance Victoria investigated the complaint. During the investigation, Mr Short denied making offensive comments directed to Mr Standfield, thereby misleading the investigation. Mr Short conceded as much under cross-examination when he admitted he was wrong to tell the investigator that “at no stage did I make any comments to Mr Standfield that were directed towards him about his character”.

79    On 15 June 2011, Mr Short offered an apology in writing to Mr Standfield. The apology commenced with a statement that appeared on its face to be incredible. It said:

At no stage during our conversation did I make any comments about your character or that were intended to offend you…

80    Understandably, Mr Standfield rejected the so-called apology.

81    Ambulance Victoria arranged a meeting with Mr Short to discuss the allegations. The meeting occurred on 16 June 2011. At the meeting, Mr Short was given an opportunity to respond to the allegations made against him.

82    When Ambulance Victoria prepares to terminate the employment of one of its employees, its practice is to have prepared a document called “Business Case” for consideration by the Chief Executive Officer. Mr Sassella (Chief Executive Officer of Ambulance Victoria) gave evidence that the Business Case document is formulated using a template which has background information on the employee concerned. The Business Case document is the formal written process by which termination and other important decisions are made.

83    Ms Sadler prepared a first draft Business Case, concerning Mr Short on 27 July 2011 and sought input from Mr John Bradbury, an “employee relations” specialist employed by Ambulance Victoria. Also on 27 June 2011, Ms Sadler sent a copy of the first draft of the Business Case to Ambulance Victoria’s legal advisor, Mr Maher of Marsh and Maher Lawyers. Mr Maher and Ms Sadler exchanged drafts of the Business Case culminating in the final form of the document.

84    The Business Case in final form bears the date 1 July 2011. It is authorised by Ms Sadler. Ms Sadler gave the document to Mr Walker, the General Manager of Regional Services, for his consideration on 4 July 2011. Mr Walker signed off on the Business Case on 4 July 2011. Mr Walker only viewed the final draft and had no discussion with Ms Sadler about the contents of the Business Case. Mr Walker then passed the document to Ms Pettitt. Ms Pettitt read and signed the document on 5 July 2011. She had not seen previous drafts and had had no discussion with Ms Sadler about its contents.

85    After Mr Walker and Ms Pettitt signed the Business Case, the document was given by Ms Pettitt to Mr Sassella’s office. Mr Sassella read and signed the Business Case on 6 July 2011. That action effected the termination of Mr Short. Mr Sassella relied only on the terms of the Business Case in effecting the termination. He had seen no previous drafts and had not discussed its contents with anyone.

86    Mr Short attended a meeting with representatives of Ambulance Victoria on 14 July 2011 at which he was told that he had been dismissed from his employment. Ambulance Victoria confirmed the termination by letter dated 18 July 2011, under the hand of Mr Cooke. Omitting formal parts, the letter said:

Dear Darren

Re:    Notice of Termination of Employment

We confirm what was advised to you in the meeting on 14 July 2011 that, following an investigation into a complaint made against you by Paramedic Robert Standfield regarding an incident occurring on 1 May 2011, Ambulance Victoria (“AV”) has made the decision to terminate your employment on the basis of serious and wilful misconduct effective immediately.

The reasons for termination are as follows:

1.    AV has found that on 1 May 2011, you made an unprovoked and unreasonable personal attack on your Team Manager, Robert Standfield, in which you made statements to him such as:

•    Mr Standfield was a liar;

•    He was a disgusting human being;

•    He made your skin crawl;

•    You did not know how he could live with himself and that he was responsible for your wife being on medication and for your children suffering.

2.    That this behaviour was in breach of any reasonable workplace behaviour, and in breach of the Workplace Conduct Policy and Code of Conduct for Victorian Public Service Employees.

3.    That this behaviour has had a significant and profound impact on your colleague, Robert Standfield.

4.    That throughout the investigation you have refused to acknowledge what occurred and you have refused to show any genuine contrition or remorse regarding what has occurred. In this respect we note that:

a.    In your initial written response to the allegations dated 2 June 2011, you stated that any comments made by you to Mr. Standfield were about “how you felt” and “at no stage did you make any comments to Mr. Standfield that were directed towards him about his character.” These denials were again repeated at the meeting on 16 June. AV does not accept the truth of these statements.

b.    In your written response dated 2 June you alleged that during the meeting of 1 May Mr. Standfield made derogatory remarks “of a very personal and offending nature” about you and your family. You repeated these allegations again at the meeting on 16 June, however you have refused to substantiate these extremely serious allegations and AV does not accept that such statements were ever made.

5.    The incident of 1 May occurred despite a formal warning being given to you on 9 November 2010 concerning your behaviour towards management and staff performing management roles. At this time, a copy of the Workplace Respect Policy and Code of Conduct for Victorian Public Sector Employees was provided to you. We note that at the meeting of 16 June you denied you had problems with your temper or there had been previous problems with your behaviour.

Given the above, AV felt it was left with no option but to terminate your employment.

An AV representative will attend at your house on Monday 25 July 2011 at 12.00 pm to collect all AV property including your keys and identification card. Should this time not be suitable, please contact Susan Sadler immediately to arrange a mutually suitable time. Attached is an Employee Clearance Form. The form has been designed to assist you in returning all AV property issued to you during the course of your employment. Once the form has been completed and signed, the Payroll Office will provide your final payment.

To arrange collection of your belongings from Lakes Entrance Branch, please contact Debra Ray on [mobile number].

I take this opportunity to remind you that you are not permitted to enter any Ambulance Victoria premises or make unsolicited contact with Ambulance Victoria personnel.

If you have any queries, please contact Susan Sadler, HR Partner Gippsland directly on [telephone number].

Yours sincerely

MARK COOKE

Regional Manager Gippsland

The relevant decision-makers

87    Mr Sassella, as Chief Executive Officer, made the decision to terminate Mr Short’s employment after a decision to do so had been endorsed by Mr Walker and Ms Pettitt. The endorsement was of a document under the name of Ms Sadler. However, her authorship was a result of particular internal processes in Ambulance Victoria. Responsibility for the document rested with Mr Walker.

88    Each of Mr Sassella, Mr Walker and Ms Pettitt gave evidence of independent consideration of the Business Case and that each of them decided independently, based on its contents, to approve the Business Case. Their reasons for so doing arose from what each of them considered to be unacceptable conduct by Mr Short.

89    There is no support in the evidence that any other person participated as a decision-maker in the dismissal decision, with the possible exception of Ms Sadler. Ms Sadler, to the extent that she may be considered to have affected the decision, was motivated by reasons only relating to Mr Short’s unacceptable conduct.

Alleged contravention of s 340(1) of the Act

90    Counsel for Mr Short submit that Ambulance Victoria contravened s 340(1) of the Act when it terminated Mr Short’s employment. They contend that the objective evidence supports the conclusion that part of the reason was Mr Short’s persistence in exercising his workplace rights. Nothing could be further from the truth. Mr Short was terminated for the reasons contained in the letter of 18 July 2011 which is set out at [86] above. The Court accepts the evidence of those who took part in the decision to the effect that one reason and one reason only actuated them in terminating Mr Short. The reason was his “unprovoked and unreasonable personal attack” on Mr Standfield, in circumstances where he had previously received a warning in respect of his behaviour towards staff performing supervisory or managerial roles.

Conclusion

91    As no aspect of Mr Short’s claims have been made out, the application must be dismissed.

Associate:

Dated:    15 January 2014