FEDERAL COURT OF AUSTRALIA

Stanislawa Bahonko v Moorfields Community & Anor [2005] FCAFC 116

INDUSTRIAL LAW – no error disclosed – appeal dismissed ‑ costs order made

Workplace Relations Act 1996 (Cth) ss 170CP, s 170CK (a), (e) and (f), s 170CS(1)(a)

Accident Compensation Act 1985 (Vic)

Jennings v Salvation Army (2003) 128 IR 366, referred to

Zhang v The Royal Australian Chemical Institute Inc [2004] FCA 1392, referred to

Zhang v The Royal Australian Chemical Institute Inc [2005] FCAFC 99, referred to

Warren v Coombes (1979) 142 CLR 531, applied

Spotless Services Australia Ltd v Marsh [2004] FCAFC 155, followed

STANISLAWA BAHONKO vMOORFIELDS COMMUNITY (AN AGENCY OF THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (VICTORIA)) and BODALLA AGED CARE SERVICES

VID 94 OF 2005

MARSHALL, GOLDBERG AND KENNY JJ

15 JUNE 2005

MELBOURNE

ON APPEAL FROM A SINGLE JUDGE OF THE COURT

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondents’ costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A SINGLE JUDGE OF THE COURT

REASONS FOR JUDGMENT

the court

1                     On 4 February 2005 a Judge of the Court dismissed an application by the appellant, Miss Bahonko, made, inter alia, under s 170CP of the Workplace Relations Act 1996 (Cth) (“the Act”).  For the reasons set out below we consider that the appeal should be dismissed.

Factual background

2                     Miss Bahonko was formerly employed by the first respondent (“Moorfields”) and the second respondent (“Bodalla”) as a registered nurse.  Moorfields terminated her employment on 10 May 2004.  Bodalla terminated her employment on 24 May 2004. Moorfields relied on Miss Bahonko’s alleged misconduct to justify its termination of her employment. Bodalla considered that Miss Bahonko had abandoned her employment.

3                     Miss Bahonko claimed before the primary Judge that the respondents had terminated her employment in breach of s 170CK (2)(a), (e) and (f) of the Act.

4                     Between 4 September 2003 and 6 May 2004, there were some incidents involving Moorfields and Miss Bahonko concerning her “interactions with some of her co-workers, as well as with some of her patients and their families”: see [19] of the primary Judge’s reasons.  These matters are referred to by the primary Judge at [19] to [26] of his reasons for judgment.

5                     On 6 May 2004 a dispute arose between Miss Bahonko and Mrs Riley (Moorfield’s Director of Nursing) concerning the manner of the preparation and administration of medication for patients. The events leading up to Miss Bahonko’s removal from her workplace by the police are set out at [27] to [32] of the primary Judge’s reasons.  We shall not repeat them.  Suffice to say, Miss Bahonko refused to obey a lawful command made by Mrs Riley regarding the preparation and administration of medication, refused to hand over the keys to the medication trolley and was removed from Moorfields’ premises by the police.

6                     By letter dated 10 May 2004 from the Chief Executive Officer of Moorfields, Mrs Turnbull, Miss Bahonko was advised that her employment was terminated summarily for misconduct.  The letter stated that Miss Bahonko would receive payment in lieu of notice and all her other monetary entitlements.

The reasoning of the primary judge

7                     The primary Judge rejected (at [38]) Miss Bahonko’s contention that her employment was terminated by Moorfields, in part, because she filed a complaint against it alleging that it had violated laws and regulations, contrary to s 170CK(2)(e) of the Act.  Miss Bahonko claimed that she made complaints about Moorfields to authorities, including:

·                    the Equal Opportunity Commission;

·                    the Human Rights and Equal Opportunity Commission;

·                    the Ombudsman;

·                    the Victoria Police Ethical Standards Unit;

·                    the Aged Care Complaint Agency;

·                    Job Watch; and

·                    the Workcover Authority.

8                     His Honour held (at [35]) that Miss Bahonko’s workcover claims were not a reason for her termination by either respondent.  He also referred to authority which stated that making a claim under the Accident Compensation Act 1985 (Vic) was not comprehended by s 170CK(2)(e); see Jennings v Salvation Army (2003) 128 IR 366 and Zhang v The Royal Australian Chemical Institute Inc [2004] FCA 1392. See now, on appeal, Zhang v The Royal Australian Chemical Institute Inc [2005] FCAFC 99 at [34] per Lander J, with whom Spender and Kenny JJ agreed. 

9                     The primary judge said (at [38]):

“I am satisfied that Moorfields’ reasons for termination were premised upon its view that the applicant was a difficult employee who had breached its medication protocol. I am satisfied that those reasons relate to the personality of the applicant and the medication incident, and do not include any of the reasons set out in s 170CK(2).”

His Honour rejected (at [38]) Miss Bahonko’s submission that Moorfields dismissed Miss Bahonko for any reason related to any complaint to any of the authorities referred to above.  Consequently, no breach of s 170CK(2)(e) had been established.

10                  Before his Honour, the appellant made no other clearly articulated claim relating to any aspect of s 170CK(2)(a) or (f), save for her allegations that she was terminated, in particular, due to her Catholicism.  His Honour held (at [18]), however, that there was “no objective basis” for the claim that Miss Bahonko’s religious beliefs played any role in her termination by the respondents.

11                  In considering Bodalla’s termination of Miss Bahonko, the primary judge found the following pertinent facts:

·                    on 9 March 2004, Miss Bahonko clashed with Bodalla’s Director of Nursing, Mrs Whitehead, and was sent home on full pay; and

·                    on 11 March 2004, Miss Bahonko was absent from work, on workcover benefits pursuant to certificates valid until 8 April 2004 and then from 8 April to 8 May 2004.

12                  His Honour found (at [46]) that the certificate covering the period subsequent to 8 May 2004 “was not sent to or seen by any responsible officers of Bodalla prior to [Miss Bahonko’s] employment being terminated on 24 May 2004”.  His Honour was, therefore, not satisfied that Miss Bahonko was dismissed “on the basis of her absence because of illness or injury” (at [46]).  His Honour found (at [46]) that the only reason for the termination was Miss Bahonko’s failure to respond by 24 May to Bodalla’s letter to her of 18 May in which a representative of Bodalla asked her to contact it to meet concerning a return to duties.

13                  His Honour also found (at [46] to [47]) that no other reason referred to in s 170CK(2), including religion, was involved in Bodalla’s termination of the appellant’s employment.

14                  The primary judge rejected Miss Bahonko’s claims based on Victorian legislation and the common law, including her claims regarding defamation and assault.  His Honour said (at [48] to [56]):

“In addition to her claims under the Act, the applicant made a number of general claims based on Victorian legislation and the common law. At the hearing the applicant only gave specific oral evidence about two of the claims, being her claims of assault and defamation.  I have not found it necessary to make a decision about the adequacy of the applicant’s additional claims or whether they fall within the associated or accrued jurisdiction of the Court because I am satisfied that the claims are without merit.

The applicant claimed that she was assaulted by the police when they removed her from Moorfields, and that Moorfields’ management should be held responsible for that assault.  I am satisfied that the actions of the police were taken on their own initiative in the exercise of their powers as police officers.  There is no basis whatsoever for concluding that the police acted under the direction of, or as agents for, Moorfields.

The applicant’s claims regarding defamation were never clearly articulated.  I am not satisfied that, as the applicant claims, Mrs Riley told the police that the applicant was paranoid or that she made any other potentially defamatory remarks about the applicant. Rather, it is probable that Mrs Riley made observations to the police about the applicant’s distress and conduct on that day, and I have no reason to believe that those observations were other than fair and accurate, and were justifiable in all the circumstances.

The applicant also claims that defamatory remarks were made about her in the context of a subsequent Nurses Board hearing, which concerned the suspension of her registration. …

…

Statements made in the course of the Nurses Board hearing are privileged under the Nurses Act 1993 (Vic) (“the Nurses Act”) and the Evidence Act 1958 (Vic) (“the Evidence Act”).  Section 51 of the Nurses Act states:

‘Sections 14, 15, 16 and 21A of the Evidence Act 1958 apply to a panel in the conduct of a formal hearing as if it were a Board or the Chairman of a Board appointed by the Governor in Council.’

Section 21A(1) of the Evidence Act states that witnesses in such hearings:

‘shall have and shall be deemed always to have had the same privileges and immunities in respect of any act matter or thing done in or in relation to or arising in or out of the inquiry or any report of the inquiry as they would have or have had if the act matter or thing was done in or in relation to or arose in or out of an action in the Supreme Court of Victoria or a report of any such action.’

Statements made in the course of court proceedings are absolutely privileged. The principle, long ago enunciated by Lord Mansfield (in R v Skinner (1772) Lofft 54 at 56), is that: ‘neither party, witness, counsel, jury or Judge, can be put to answer, civilly or criminally, for words spoken in office’ and has been approved by the High Court of Australia (see Cabassi v Vila (1940) 64 CLR 130 at 140 and Jamieson v The Queen (1993) 177 CLR 574).

The effect of s 21A(1) of the Evidence Act is that any statement made about the applicant by any officer of either respondent in the course of giving evidence before the Nurses Board cannot be made the subject of a suit, and therefore is not justiciable as being defamatory. Further, under s 51 of the Nurses Act and s 14 of the Evidence Act, the Nurses Board has the power to summon witnesses.  Section 30 of the Evidence Act states that aside from charges of perjury, statements made to any person in answer to a question before a board with the power to summon witnesses shall not “be admissible in evidence in any proceedings civil or criminal against him, nor be made the ground of any prosecution action or suit against him”.

The other claims of the applicant were not properly or adequately articulated. However, I am not satisfied that any of her other allegations of unlawful conduct on the part of either respondent have been established.”

grounds of appeal

15                  Although the grounds of appeal are not precisely drawn, they raise the following issues:

(1)   whether the conduct of the trial and the decision reached by the primary Judge was discriminatory in relation to Miss Bahonko;

(2)   whether the decision was prejudiced or biased against Miss Bahonko, or contained errors of judgment and was lacking in reasoning;

(3)   whether the judgment was not based on fact and evidence but rather so expressed a preference for the respondents’ witnesses that it amounted to contempt for truth and justice;

(4)   whether there was a proper hearing;

(5)   whether the primary Judge ignored evidence of perjury of a witness or witnesses;

(6)   whether the judgment was contradictory of the primary Judge’s own findings; and

(7)   whether the judgment repeated the lies of the respondents’ witnesses.

16                  Miss Bahonko represented herself on appeal. 

consideration

17                  In written submissions, Miss Bahonko contended that the primary judge erred by not having regard to her post‑hearing written submissions filed at his direction.  It is apparent from his Honour’s specific reference in his reasons (at [14]) to the appellant’s submissions that this contention is misconceived.  The basis of the appellant’s complaint appears to stem from his Honour’s observation (at [15]) that:

“I would add that the applicant’s responding submissions sought to impermissibly re-open evidentiary issues. The evidence upon which these reasons are based is the relevant and admissible evidence adduced at the hearing.”

The purpose of post-hearing written submissions is the making of submissions in the context of the evidence adduced in the oral hearing. It is not an opportunity to add new evidence.  There is no substance in this point on the appeal.

18                  Miss Bahonko also submitted that she was disadvantaged in the conduct of the trial by having to give her evidence before the respondents gave their evidence. Under O 32 r 4(3), in a case of this kind, it is usual for the initiating party to present evidence before the evidence of the responding party or parties. There is no substance in this submission. Miss Bahonko also criticised his Honour’s judgment because it was certified by his Associate. That is standard practice in the Court; and it does not imply that the judgment was anything but a judgment of the primary judge.

19                  In written and oral submissions, Miss Bahonko submitted that the totality of the judgment of the primary Judge was wrong; and that, in his acceptance of the respondents’ evidence, he was biased against her.  She contended that the primary Judge had erred in finding (at [38]) that Moorfield’s reasons for terminating her employment “were premised upon its view that the applicant was a difficult employee who had breached its medication protocol”.  This was because, first, the respondents’ witnesses had perjured themselves, and, secondly, his Honour had noted at the trial that breach of the medication protocol was not serious enough to warrant dismissal.  Miss Bahonko also submitted that his Honour erred in failing to accept her claim, based on s 170CK(2)(e), that she was dismissed because of the complaints she made to a number of agencies about her employers.  She contended that his Honour erred in rejecting her claims that she was victimised because of her religious beliefs.  She submitted that his Honour was wrong not to find that Bodalla was motivated to seek her dismissal on the basis of her absence because of illness or injury.  Miss Bahonko also maintained that his Honour failed to consider properly her claims in relation to defamation and assault.

20                  There is nothing before this Court to indicate that it was not open to his Honour to accept the evidence of the respondents’ witnesses in preference to that of Miss Bahonko.  His Honour’s findings of fact were made on admissible evidence.  There has been no relevant error shown in the inferences of fact that were drawn by his Honour: compare Warren v Coombes (1979) 142 CLR 531 at 552.  In making the challenged findings against Miss Bahonko, there is no tenable basis for a claim of bias. 

21                  Further, it was open to his Honour on the evidence to conclude that Miss Bahonko’s dismissal by Moorfields was based on reasons relating to her personality and what his Honour described as the “medication incident”(at [38]).  In his reasons for judgment, his Honour indeed observed (at [37]) that Moorfields had utilised “the breach of the medication protocol, which in other circumstances might have warranted something less than summary termination, as the reason for the termination” of Miss Bahonko’s employment.  The fact was, as his Honour noted (at [57]), that Miss Bahonko had elected not to pursue in the Australian Industrial Relations Commission her entitlement to claim that the terminations were harsh, unjust or unreasonable and had chosen to initiate Court proceedings, relying on the specific grounds in s 170CK(2).  In substance his Honour found that the respondents had discharged their onus of proof that the reasons for her termination were not s 170CK(2) reasons.

22                  Claims made to WorkCover are not relevant for s 170CK(2)(e) purposes:  see Zhang v The Royal Australian Chemical Institute Inc [2005] FCAFC [99] at [34] and Jennings v Salvation Army (2003) 128 IR 366 at [35].  His Honour found that a number of the complaints made to other bodies were made after her employment had been terminated (at [36]).  They could not therefore be the reasons for her dismissal; and the respondents discharged their onus of proof in this regard.  No error is shown in his Honour’s reasoning. 

23                  Similarly, we can discern no error in his Honour’s treatment of Miss Bahonko’s claim in relation to her religion, or in his Honour’s treatment of her defamation and assault claims.  On the hearing of the appeal, her claim in relation to religion remained very general.  Miss Bahonko did not identify any actual foundation for it.  We have set out verbatim (at [14]) above the reasons of his Honour concerning the other aspects of her claim, and we can find no error in them.

24                  Miss Bahonko also submitted that she was given insufficient time at trial to explore the issues raised before the primary Judge.  As to that, we are satisfied that there was no procedural unfairness in the manner in which the primary Judge conducted the hearing.

Disposition

25                  For the above reasons we consider that the appeal should be dismissed. The respondent has sought its costs of the appeal pursuant to s 170CS of the Act on the basis that Miss Bahonko acted unreasonably in instituting the appeal. Miss Bahonko disputed this.  As is apparent from these reasons, Miss Bahonko’s appeal had no prospects of success at the outset.  In our view, it was doomed to fail, as no arguable basis was advanced in the notice of appeal upon which an appellate Court would overturn any aspect of the primary Judge’s judgment.  Given that the appeal, was instituted without reasonable cause and was bound to fail, it is appropriate to order that Miss Bahonko pay the costs of the appeal.  This is contemplated by s 170CS(1)(a): see Spotless Services Australia Ltd v Marsh [2004] FCAFC 155 (“Spotless”) at [9] to [13].  The respondents were compelled to respond to the Notice of Appeal and incur costs in respect of an appeal which had no prospects of success because it did not disclose any arguable ground of appeal which could succeed: see Spotless at [11].

Associate:

Dated:              15 June 2005