FEDERAL COURT OF AUSTRALIA
Dafallah v Fair Work Commission [2014] FCA 328
| Date of last submissions: | 9-10 December 2013 | ||
| Place: | Melbourne | ||
| Division: | FAIR WORK DIVISION | ||
| Category: | Catchwords | ||
| Number of paragraphs: | 185 | ||
| Mr M Willoughby-Thomas of Martin Willoughby-Thomas Barristers and Solicitors | |||
| Counsel for the First Respondent: | The First Respondent filed a submitting appearance | ||
| Solicitor for the First Respondent: | Australian Government Solicitor | ||
| Counsel for the Second Respondent: | Mr R Millar | ||
| Solicitor for the Second Respondent: | DLA Piper Australia | ||
| IN THE FEDERAL COURT OF AUSTRALIA | |
| Applicant |
| AND: | First Respondent MELBOURNE HEALTH Second Respondent |
| DATE OF ORDER: | |
| WHERE MADE: |
THE COURT ORDERS THAT:
1. The name of the first respondent in the originating application filed on 24 September 2012 be amended to “Fair Work Commission”.
2. On or before 4.00pm on 11 April 2014, the parties file and serve written submissions on the proposed form of orders, limited to 5 pages.
3. On or before 4.00pm on 11 April 2014, the parties file and serve written submissions they wish to make as to the costs of this proceeding, limited to 3 pages.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
| VICTORIA DISTRICT REGISTRY | |
| FAIR WORK DIVISION | VID 705 of 2012 |
| BETWEEN: | MARIAM DAFALLAH Applicant |
| AND: | FAIR WORK COMMISSION First Respondent MELBOURNE HEALTH Second Respondent |
| JUDGE: | MORTIMER J |
| DATE: | 4 April 2014 |
| PLACE: | MELBOURNE |
REASONS FOR JUDGMENT
INTRODUCTION
1 The applicant, Ms Dafallah, was employed by the second respondent, Melbourne Health, for approximately 10 years as a clinical assistant, and from 2005 to 2010 she worked at the Royal Melbourne Hospital. Her employment was terminated on 1 September 2010. Since then, and principally through the Fair Work Commission (FWC), Ms Dafallah has pursued reinstatement to her position and compensation for what she says was the unlawful termination of her employment. To date she has been unsuccessful. In this proceeding, she continues to challenge the termination of her employment in two ways. First, a claim for judicial review of the decisions of the FWC in relation to her unfair dismissal proceedings in the Commission. Second, a variety of claims said to be in the original jurisdiction of this Court: namely, an application for penalties under s 546 of the Fair Work Act 2009 (Cth) (FW Act) for breach of the applicable certified agreement, and an application for reinstatement and compensation under s 545 of the FW Act, and damages for breach of contract and negligence in relation to the termination of her employment.
2 Melbourne Health, who was the active contradictor in this proceeding, not only opposed relief on a substantive basis but also submitted that Ms Dafallah was estopped from seeking reinstatement and compensation in this Court, when that was precisely the relief she sought (and did not obtain) in the FWC. Alternatively, Melbourne Health submitted that the non-judicial review aspects of the proceeding were an abuse of the processes of this Court because in substance Ms Dafallah was re-agitating claims about her employment that had been determined in the FWC.
3 Fair Work Australia was renamed the Fair Work Commission from 1 January 2013. Accordingly, the amending legislation changed any references to “Fair Work Australia” or “FWA” in the FW Act to “the Fair Work Commission” or “the FWC”: see, eg, Fair Work Amendment Act 2012 (Cth) Sch 9; Fair Work Amendment Act 2013 (Cth) Sch 6. That body will be referred to in these reasons by its current name: “the FWC” or “the Commission”. With the exception of the legislation quoted at [153] below, where legislation is extracted or referred to in these reasons, the version relied upon is that in force at the time relevant to these proceedings (including references to “Fair Work Australia” and “FWA”).
4 For reasons which appear below, I have found Ms Dafallah has not established any of her claims except her claims that Melbourne Health contravened cl 38 of the Health Services Union of Australia — Health and Allied Services, Administrative Officers — Victorian Public Sector — Multi Employer Certified Agreement 2006-2009. I have found she is entitled to compensation in relation to the breach.
FACTS WHICH ARE NOT CONTROVERSIAL
5 Pursuant to s 191 of the Evidence Act 1995 (Cth), the parties agreed some basic facts.
On 15 May 2000 Mariam Dafallah commenced employment at Melbourne Extended Care Rehabilitation Service [MERCS], Parkville. On 1 July 2000, MERCS became part of the Melbourne Health network. The Melbourne Health network was established pursuant to the Health Services [Governance] Act 2000 which received royal assent on June 6 2000.
Pursuant to ss. 204 and 221 of that Act, employees transferred to Melbourne Health were to be regarded as having been employed by Melbourne Health and having been employed on the same terms and conditions as applied immediately prior to transfer.
In March 2005, Mariam Dafallah was transferred to the Royal Melbourne Hospital Campus of Melbourne Health.
At all relevant times, Melbourne Health was bound by the Health Services Union of Australia - Health and Allied Services, Administrative Officers - Victorian Public Sector - Multi-Employer Certified Agreement 2006-2009 ['The Agreement'] [The Agreement is Annexure AD-4 to the Affidavit of Alan Duckworth sworn on May 31 2013].
At all relevant times, Mariam Dafallah was entitled to the benefit of the Agreement. Mariam Dafallah was a Health and Allied Services employee under the Agreement and was designated as a Clinical Assistant.
At the time of her termination, Mariam Dafallah was working full-time at Melbourne Health and was paid a base hourly rate of $20.37105.
6 Ms Dafallah then brought a claim for unfair dismissal. The FWC (then Fair Work Australia) handed down its decision on 7 December 2011, finding that Ms Dafallah had not been unfairly dismissed from her employment by Melbourne Health: see Dafallah v Melbourne Health [2011] FWA 7340. Ms Dafallah sought permission to appeal from that decision. On 27 April 2012 the Full Bench refused permission to appeal: Dafallah v Melbourne Health [2012] FWAFB 3540. Her proceeding in this Court was commenced on 24 September 2012.
7 The introductory part of the Full Bench decision on Ms Dafallah’s application for permission to appeal accurately summarises, I find, the key facts in terms of how Ms Dafallah came to be dismissed, what her complaints were about that process and what the decision-making was up to the point of the challenge to the Full Bench decision in this proceeding.
[3] Ms Dafallah was employed as a full time clinical assistant by Melbourne Health from 15 May 2000. In 2005 she was transferred to the Royal Melbourne Hospital and was rostered to work across five wards from Tuesday to Sunday.
[4] As a clinical assistant, Ms Dafallah was required to assist nursing staff and ward clerks with tasks of a non clinical nature. Her tasks included transporting patients, assisting with patient hygiene, making beds, restocking supplies, and delivering and collecting bloods and specimens. Ms Dafallah was on call for all nursing staff and ward clerks on her rostered wards and was required to be available to assist when called. Requested tasks were either communicated to her in person or via a pager.
[5] Ms Dafallah was dismissed by Melbourne Health for alleged poor performance on 1 September 2010. The dismissal was based on several performance issues spanning from 2005 to 2010. In particular in 2009 and 2010 Melbourne Health considered that Ms Dafallah was not performing to a satisfactory level and issued formal warnings to her. After being issued with a third warning Melbourne Health considered that Ms Dafallah was still failing to perform her duties satisfactorily and dismissed her on the grounds of ongoing unsatisfactory performance.
[6] Ms Dafallah and Melbourne Health both submitted lengthy explanations in regards to the circumstances giving rise to and surrounding the performance issues and we do not intend to go through these submissions in detail. In summary the performance issues relate to allegations in the form of complaints, reported to Melbourne Health by nursing staff, that Ms Dafallah failed to communicate her whereabouts to nursing staff, failed to respond to pages promptly, feel asleep while on duty, failed to undertake urgent tasks promptly and would arrive late for work.
[7] Ms Dafallah disputed these performance allegations and for the purposes of her unfair dismissal application, submitted a detailed statement to justify her performance. In her original statement, dated 4 November 2010, she justified her conduct by relying on the demanding nature of her role as a clinical assistant and faults with her pager, which she contends resulted in miscommunication between her and nursing staff.
[8] In particular Ms Dafallah outlined that unlike other staff, she was rostered to work short shifts on the weekends. Nursing staff would not realise these shorter hours and would therefore assume she was arriving late or would page her after she had handed over the pager to the incoming clinical assistant at the end of her shift. This resulted in nurses making complaints to Melbourne Health about her attendance and non response to pager requests.
[9] Further, Ms Dafallah submitted that the performance issues that gave rise to her termination were a result of the difficulties that a clinical assistant faces from being on call from any nurse or ward clerk requiring assistance with no central point of coordination provided by Melbourne Health to manage the whereabouts of the clinical assistants. As a result, there is no one nurse or ward clerk who knows what a clinical assistant may be doing at a particular time which may result in the assistant being called by more than one person simultaneously. Ms Dafallah submitted that nursing staff would not realise this predicament and would make complaints that she was not answering pages or not responding promptly. Upon being terminated, Ms Dafallah submitted that, taking into account her circumstances as a clinical assistant in Melbourne Health’s workplace, the dismissal was unfair in all the circumstances.
[10] Melbourne Health submitted that Ms Dafallah’s dismissal was not harsh, unjust or unreasonable within the meaning of s.387 of the Act. Melbourne Health submitted affirmative answers to the factors in s.387 of the Act that Fair Work Australia must take into account to determine if a dismissal is harsh, unjust or unreasonable. In particular, Melbourne Health submitted that Ms Dafallah’s poor performance over a lengthy period of time was a valid reason for the termination of her employment.
[11] Melbourne Health further submitted that there had been numerous issues with Ms Dafallah’s performance since she transferred to the Royal Melbourne Hospital in 2005. Melbourne Health submits that Ms Dafallah was given warnings about her performance prior to 2009 for the issues of not answering pages and not communicating with nursing staff. However, it was after July 2009 that a formal performance management process was entered into. Melbourne Health stated that the problems with Ms Dafallah’s performance did not cease despite written warnings being issued and ample opportunity given to improve. As such, Melbourne Health made the decision to terminate her employment.
….
[14] The Commissioner found that there was a valid reason for the dismissal related to unsatisfactory work performance. Her conclusions are summarised in the following passage of her decision:
“[174] On the basis of the findings set out paragraphs 144 to 173 above, I find that there was a valid reason for Ms Dafallah’s dismissal related to unsatisfactory work performance. This included being asleep during her shift; and, on a number of occasions, not responding to pages; being unaccountably absent from the ward and not informing the nurse in charge of her whereabouts.
[175] The work performed by clinical assistants is critical to the smooth running of a ward. Given the importance of the role, it is not acceptable for a clinical assistant not to answer pages, to be unaccountably absent from the ward and to not communicate with the nurse in charge. It is of paramount importance that the clinical assistant’s whereabouts are known to the nurse in charge at all times and that they respond to pages. Between July 2009 and July 2010, Ms Dafallah was formally warned three times about not responding to pages and not communicating with the nurse in charge. Despite being on a final warning Ms Dafallah’s work performance appears not to have changed with the result that there were further allegations. These were with respect to not answering pages and not informing the nurse in charge of her whereabouts and what she was doing on 10 July 2010. Accordingly, I find that there was a valid reason for Ms Dafallah’s dismissal.”
….
[20] The Commissioner’s ultimate conclusion is expressed as follows:
“[195] In all of the circumstances of this matter and, having taken account of each of the factors in s.387 of the Act, I determine, on balance, that the termination of Ms Dafallah’s employment was not harsh, unjust or unreasonable. On the one hand, there was a valid reason for Ms Dafallah’s dismissal. On the other hand, the procedural aspects with respect to the written warnings were deficient as set out above. However, in balancing all of the factors set out in s.387, Ms Dafallah’s continued unsatisfactory performance outweighs the procedural deficiencies.”
MS DAFALLAH’S CLAIMS IN THIS COURT
8 Ms Dafallah’s claims in respect of the decisions of the FWC invoke the Court’s jurisdiction under s 39B of the Judiciary Act 1903 (Cth) and s 562 of the FW Act.
9 As to the challenge to the Full Bench decision, Ms Dafallah’s case is that the refusal of permission to appeal by the Full Bench is affected by jurisdictional error. She submits that the power exercised by the Full Bench, under s 604(2) of the FW Act, read with s 400(1), miscarried in several ways, which I address in more detail at [28] to [49] below.
10 The originating application also seeks relief in respect of jurisdictional errors said to attend the Commissioner’s first-instance decision. First, Ms Dafallah contended the Commissioner’s decision denied her natural justice in two ways: there was bias, and there was such a delay between the hearing and submission and the delivery of the decision as to constitute a denial of procedural fairness of the kind identified by the High Court in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77 and the Federal Court in Fox v Australian Industrial Relations Commission (2007) 161 FCR 263; [2007] FCAFC 150, also taking into account the Commission’s obligations under s 577 of the FW Act to perform its functions and exercise its powers in a way which is “fair and just” and “quick”. Further, Ms Dafallah contended that the Commissioner “failed to engage” with the mandatory criteria in s 387 of the FW Act and her reasons disclose she did nothing but deal with them in a “perfunctory” way. Finally, Ms Dafallah contended that the Commissioner misunderstood and misapplied the concept of “harsh, unjust and unreasonable” in s 385, and in particular the principle of proportionality.
11 Outside the challenges in the nature of judicial review to the decisions of the FWC, Ms Dafallah contends Melbourne Health contravened cl 38 of the Health Services Union of Australia — Health and Allied Services, Administrative Officers — Victorian Public Sector — Multi Employer Certified Agreement 2006-2009 (the Agreement), by giving her a combined first and second warning in writing when cl 38 required two separate warnings, the first to be verbal. She contends there was a second contravention of the Agreement by Melbourne Health’s reliance on “alleged and untested complaints from the period 2005-2007 much of which was unknown to the Applicant” until the FWC hearing, and had never been investigated by Melbourne Health. These contraventions she contends should result in her reinstatement under s 545 of the FW Act, and an award of compensation in her favour and the imposition of penalties pursuant to s 546 of the FW Act.
12 Ms Dafallah’s breach of contract claim is based on a contention that Melbourne Health’s disciplinary policies were incorporated into her contract of employment, and that these policies and procedures were not followed by Melbourne Health in her case. Specifically, Ms Dafallah was never offered nor given any counselling, guidance or assistance to improve her performance and there was no attempt to remedy or resolve the alleged performance problems. The second aspect of the contract claim consists of an allegation that, even if the policies and procedures were not incorporated into her contract, Melbourne Health breached the term of trust and confidence which Ms Dafallah contends was to be implied into her contract of employment with Melbourne Health.
13 Finally, Ms Dafallah contended that Melbourne Health’s failure to follow its disciplinary policies and processes constituted a breach of its duty of care to Ms Dafallah, such that Melbourne Health should be found liable in negligence towards her.
14 Ms Dafallah claimed damages for past economic loss from the date of her termination of employment: although she has been in employment regularly since that date, she claims to have earned less than she would have had she remained employed by Melbourne Health. She also claims general damages, and aggravated and exemplary damages based on what she alleges was the “consistently oppressive and high-handed” conduct of Melbourne Health and its employees.
MELBOURNE HEALTH’S RESPONSE
15 In relation to the Full Bench decision, Melbourne Health contended that its approach to the identification of the public interest for the purposes of s 400 was correct and, even if it was not, any error was within its jurisdiction. There was, it contended, no disregard by the Full Bench of the submissions put by Ms Dafallah and the Full Bench was under no obligation to set out a detailed summary of Ms Dafallah’s 119 pages of submissions in its reasons.
16 The principal response to the challenge to the Commissioner’s decision is that the kinds of errors identified by Ms Dafallah were errors within jurisdiction and therefore not errors for which relief could be given by this Court. Although there was some delay, Melbourne Health submitted it was not inordinate and did not affect the decision. As to the other errors, Melbourne Health submitted these were essentially quarrels with the Commissioner’s fact finding, or her attribution of weight to particular factors, and in either case were not matters which entitled Ms Dafallah to relief on judicial review.
17 As to the alleged breach of cl 38 of the Agreement, Melbourne Health contended there had been, in substance, a first verbal warning and that there is no prohibition in the Agreement in providing a first and second warning in one document. Alternatively, if there were any breach or breaches of cl 38, they were trivial and had no real consequence for Ms Dafallah. Nor, it was contended, is there any breach of cl 38.6 of the Agreement in Melbourne Health retaining warnings on file for more than 12 months. Melbourne Health contended that, even if Ms Dafallah established a breach or breaches, the breaches caused no loss to Ms Dafallah, and did not invalidate the termination of her employment. In effect, Melbourne Health contended that, because of the nature of Ms Dafallah’s conduct (and there being multiple incidents of poor performance), her employment would have ended at the same time in any event.
18 On the breach of contract claim, Melbourne Health contended the policies were not incorporated into the contract of employment. Alternatively, if they were, they were non-promissory in nature and therefore not enforceable. Third, there were no breaches of the disciplinary policies and processes in the circumstances as multiple incidents of poor performance over a period of time, and multiple discussions with Ms Dafallah about those performance issues, meant that there was in fact counselling and constructive advice about how to remedy her poor performance. Finally, as with the breach of Agreement submission, Melbourne Health responded to the claims of loss in the contract claim by contending that the only period of loss would have been the period necessary to follow the procedures properly: in this sense, it asks the Court to find that termination of Ms Dafallah’s employment was investable because of the nature and extent of her poor performance.
19 On the negligence claim, Melbourne Health contended it was so generally formulated as not to be sustainable.
THE MANNER IN WHICH THE PROCEEDINGS WERE CONDUCTED
20 The two aspects of the application were heard and dealt with together, a process to which both parties agreed. It was an efficient way to conduct the proceedings but, whether for this reason or another, the parties made little distinction between the evidentiary basis for each aspect of the application. This was not assisted by the absence of pleadings: the application was supported by a discursive and argumentative affidavit by Ms Dafallah’s solicitor (to which no objection was taken by Melbourne Health), so that the nature of the case needed to be identified from this document in conjunction with submissions. Nevertheless, Melbourne Health did not seek any orders that the matter be dealt with by pleadings, or that there be any formal clarification of Ms Dafallah’s case. No doubt the length and breadth of the litigation in the FWC has caused some fatigue on both sides, but the fact remains that Ms Dafallah’s claims on some of her causes of action were so generalised as to be without real content.
21 The parties’ approach has obscured the differences, in terms of the necessary evidentiary basis, as well as questions of standard of proof, between a judicial review proceeding concerning the FWC decisions, general law claims of breach of contract and negligence, and a claim under the FW Act of breach of an agreement. This has left the Court without sufficient evidentiary basis to make many of the findings necessary for the non-judicial review claims.
22 Only Ms Dafallah and Mr Duckworth, the Employee Relations Director of Melbourne Health, gave evidence. They were cross-examined briefly but by no means comprehensively on the matters of fact which would fall to be determined in the non-judicial review claims. Individuals such as Mr Dobre Milenkovski, Ms Dafallah’s manager, whose role was critical in the termination of her employment, were not called as witnesses. Selective and self-serving choices were made by Ms Dafallah about reliance on other evidence which had been before the Commission — for example, the written statement of Ms Claire Dowsing, a registered nurse who worked with Ms Dafallah at the Royal Melbourne Hospital and whose witness statement to the Commission contained material favourable to Ms Dafallah’s unfair dismissal claims. However, Ms Dowsing was not made available for cross-examination.
23 On Melbourne Health’s part, very little was relied on by way of evidence outside the affidavit of Mr Duckworth which was, on many issues, expressed at a high level of generality. For example, no evidence at all was led even in chief from Mr Duckworth about critical meetings — not even the meeting at which Ms Dafallah was informed her employment would be terminated, or the meeting on 4 August 2009 on which Melbourne Health subsequently relied to rebut any breach of cl 38 of the Agreement.
24 The parties were, through directions made, given the opportunity to conduct this proceeding efficiently by agreeing facts. It is apparent from the statement of agreed facts which was tendered under s 191 of the Evidence Act that the parties did not take meaningful advantage of that opportunity. That was a matter for each party, but it has the consequence that each party assumes a legal or evidentiary burden accordingly to prove the facts necessary to make good the matters for which they each contend.
25 Although allegations, and cross-allegations, were made about the reliability of correspondence in terms of the narrative it gave of events, or whether the correspondence accurately represented Melbourne Health’s adherence to its policies and processes, few or none of the assertions in this correspondence were actually tested in evidence. The result is that the Court is simply unable to resolve many of the factual issues necessary to make findings in Ms Dafallah’s non-judicial review claims.
26 Although the authorities to which I have referred at [57] to [60] below make it clear a person is not precluded from bringing a claim in this Court, despite having brought one under the FW Act, where factual matters are in contest that does not mean proceedings in this Court can be run on the basis of the record in the FWC. Nor can they can be run on the basis of only part of that record. The cost consequences may be significant for a person in the position of Ms Dafallah, but that is one of the factors which should contribute to the decision whether it is appropriate to bring proceedings at all in this Court over events which have been the subject matter of a fully ventilated claim in the Commission.
27 Finally, the tender by Ms Dafallah of a great deal of material constituting submissions before the Commission, replete with detailed references to the evidence before the Commission, can serve only a limited purpose in this proceeding. It might provide some evidentiary foundation for submissions on judicial review about jurisdictional error by the Full Bench or the Commissioner on the ground of, for example, denial of procedural fairness. However, it cannot operate as a substitute for evidence adduced to prove the truth of relevant facts about Ms Dafallah’s termination of employment. On some aspects of her claims, it appeared Ms Dafallah sought to rely on those submissions in that way, which was inappropriate.
WHETHER THE FULL BENCH DECISION IS AFFECTED BY JURISDICTIONAL ERROR
28 The kinds of errors which are jurisdictional in the exercise of the appellate jurisdiction under the FW Act are those which involve a Full Bench misunderstanding the nature of its jurisdiction, misconceiving its duty, misunderstanding the nature of the opinion it was required to form, or failing to apply itself to the matters which its appellate jurisdiction requires it to determine: see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 at [31] per Gleeson CJ, Gaudron and Hayne JJ. Melbourne Health sought to contend that the matters identified as errors by Ms Dafallah were not capable of constituting jurisdictional errors. That submission should be rejected. The kinds of errors identified by Ms Dafallah involve an alleged failure to perform functions in the manner required by s 577 of the FW Act, a misunderstanding of the operation of s 400 of the FW Act, being the matter which conditions the power of the Full Bench to grant leave under s 604(1), and a failure to deal with the delay in the Commissioner’s decision as a matter capable of affecting the public interest under s 400. All those arguments, if successful, are capable of identifying jurisdictional error in the Full Bench’s decision.
29 It was not contended by Ms Dafallah that this Court’s jurisdiction under s 562 of the FW Act differed in substance from its jurisdiction under s 39B of the Judiciary Act. A Full Court of this Court has held that there is no substantive difference: see Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157 at [45]. Accordingly, Ms Dafallah’s claims in respect of jurisdictional error can be dealt with together.
30 It is also important to recall the nature of the Full Bench’s appellate function. If permission to appeal is granted under s 604(1), the appeal conducted by the Full Bench is by way of rehearing. It is not an appeal de novo — the Full Bench must be satisfied of an error in the decision under appeal before it can exercise its rehearing function: see Linfox [2013] FCAFC 157 at [14].
31 Ms Dafallah contended there were several errors affecting the Full Bench’s decision. First, she submitted the Full Bench failed to address the evidence and submissions put to it and this in turn meant it failed to perform its functions and exercise its powers in the manner required by s 577 of the FW Act. Second, she submitted the Full Bench wholly misunderstood and misapplied s 400 of the Act, by misunderstanding what the condition on its leave discretion — whether it was in the public interest to grant leave — required it to decide. Third, she submitted the Full Bench took an incorrect approach to her arguments about the delay in the Commissioner’s decision — rather than examining those arguments in the context of whether it was in the public interest to grant leave, the Full Bench treated the issue of delay as a matter for its own determination, and did so without any reference to the requirements of s 577 of the FW Act.
The section 577 point
32 Section 577 of the FW Act provides:
Performance of functions etc. by FWA
FWA must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.
33 Contrary to the submission of Ms Dafallah, the Full Bench decision expressly refers to her arguments based on s 577. At [39] of its reasons, when setting out the matters which it understood Ms Dafallah to rely on for the purposes of submitting it was in the public interest to grant permission to appeal, the Full Bench notes Ms Dafallah’s submissions in the following terms:
The matter raises issues of importance and general application regarding the obligations imposed by s.577 of the Act.
34 It is true than in its reasoning which follows, the Full Bench does not expressly deal with the scope and operation of s 577. However, it finds the Commissioner’s decision to be “exhaustive and detailed” and, in earlier parts of its reasons dealing with delay (to which I return below) it had noted that, while the time between the hearing and the decision was longer than could reasonably be expected, that time was explicable given the detail of the Commissioner’s decision and all the evidence and arguments it needed to traverse. Indeed, the Full Bench expressed its own view the Commissioner may have considered matters in more detail than she needed to, but clearly the Full Bench saw this as to Ms Dafallah’s advantage, not disadvantage.
35 Like other provisions of this kind, which are facultative rather than in and of themselves imposing enforceable obligations (see Minister for Immigration and Citizenship v Li (2013) 297 ALR 225; [2013] HCA 18 at [15] per French CJ, [51]-[62] per Hayne, Kiefel and Bell JJ), the objectives contained in s 577 may pull in different directions in any given factual situation. In one sense that explains the Full Bench’s approach to the delay argument. In my opinion, the Full Bench’s reasons emphasise that, in a case which has been presented in a factually complex way, attempts to be thorough (and therefore “fair” and “just”) may mean there is a price to pay in terms of delay (ie “quick”).
36 For the same reasons as those given by the High Court in Li (2013) 297 ALR 225; [2013] HCA 18 concerning similar provisions in the Migration Act 1958 (Cth), there is no basis to see s 577 as imposing independently enforceable obligations on the Commission. Rather, it is a facultative provision designed to articulate objectives, which other provisions within the FW Act may, in and of themselves, pursue through the imposition of enforceable obligations or through specifying the nature of the jurisdiction the Commission must exercise. In Warrell v Walton [2013] FCA 291, Flick J considered the exercise of a power under s 596(2) of the FW Act. Although at [27] his Honour’s reasons might be read as giving some kind of enforceable effect to s 577, in my opinion the basis for his Honour’s decision was the failure of the FWC to exercise its discretion under s 596 in the manner the FW Act required, and the facultative provision in s 577 contributed to his Honour’s conclusions about the existence of error in relation to s 596.
37 There was no error, let alone a jurisdictional one, in the Full Bench not dealing in more detail with the terms of s 577.
The section 400 point
38 Section 400(1) provides:
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA considers that it is in the public interest to do so.
39 It may be accepted that s 400(1) operates as a condition on the power conferred by s 604(1) of the FW Act to grant permission to appeal a decision in respect of an application for unfair dismissal. Ms Dafallah contended that, in determining for the purposes of s 400(1) whether it was in the public interest to grant Ms Dafallah permission to appeal from the Commissioner’s decision, the Full Bench needed only to recognise that the proceeding raises an issue of broader application within the scope and objectives of the Act, including public confidence in the administration of justice by the Commission. She submitted that, rather than looking at what she submitted as a straightforward question, the Full Bench “jumbled” the question of public interest with the merits of the appeal.
40 The use of the phrase “in the public interest” is apt to convey broad notions, and involves a discretionary value judgment, confined only by the scope, subject matter and purpose of the statute in question: see Coal and Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; [2011] FCAFC 54 at [44]-[46] per Buchanan J. A manifest injustice in the first-instance decision is one example: see GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266; [2010] FWAFB 5343 at [27]. However, there is some stringency attached to the requirement imposed by s 400(1): see Lawler 192 FCR 78; [2011] FCAFC 54 at [43] per Buchanan J. The identification of an error of law in the first-instance decision, without more, will not necessarily compel a conclusion by the Full Bench that it is in the public interest to grant permission to appeal, nor will a conclusion by the Full Bench that it would have reached a different conclusion: see Makin 197 IR 266; [2010] FWAFB 5343 at [28]-[29].
41 In the current matter, the reasons of the Full Bench refer to these very considerations. There was no misunderstanding by the Full Bench of the nature of its appellate jurisdiction, nor the limits in s 400(1) which conditioned it. The Full Bench set out the parties’ arguments as to the public interest condition in s 400(1), and as to the nature of the errors said to appear in the Commissioner’s decision, but concluded the decision and the grounds of appeal related “almost entirely” to factual issues. In that context, the Full Bench was not persuaded that the Commissioner’s decision was attended with any significant factual errors which could meet the requirements of s 400(2), or the test in House v The King (1936) 55 CLR 499. The Full Bench concluded (at [44] of its reasons):
We do not consider that the matter raises issues of general principle in unfair dismissal matters. We do not consider that the outcome is counterintuitive or that the decision manifests an injustice. We do not believe that any relevant legal principles were misapplied. We have dealt with the issue of delay above. It follows from these conclusions that the matter does not attract the public interest.
42 Ms Dafallah characterises passages such as this as the Full Bench “jumbling” the matters it needed to determine in relation to permission to appeal with the appeal itself. That submission should not be accepted. This passage reveals the Commission’s conclusions on the non-existence of error, the nature of the issues in dispute before the Commissioner as essentially factual and the absence of any manifest injustice in the Commissioner’s ultimate decision. These are precisely the kinds of matters the Full Bench is required to address under s 400(1).
43 Ms Dafallah’s contentions that the Full Bench misunderstood or misapplied s 400(1) should be rejected.
The way the Full Bench dealt with the delay argument
44 Ms Dafallah submitted that the Full Bench failed to consider her contentions about the delay between the hearing and the Commissioner’s decision as a matter going to the public interest in the Full Bench granting permission to appeal. That submission ignores the clear words in [44] of the Full Bench’s reasons, extracted above, and the incorporation of the earlier part of its reasons where it deals with the delay argument into its reasoning on s 400(1).
45 Earlier in its reasons, the Full Bench dealt separately with the delay argument. The Full Bench recorded the chronology of Ms Dafallah’s claim in the FWC at [12] of its reasons:
The application before the Commissioner was heard on 7 and 8 December 2010, 8 February 2011 and 4 March 2011. Further written submissions were filed on 16 and 21 March 2011. The Commissioner’s decision was handed down on 7 December 2011. The decision is lengthy and detailed.
46 Thus, the “delay” in question between the last submission as filed and the decision was approximately 8.5 months.
47 The Full Bench’s reasons refer to the two key leading authorities relied on by Ms Dafallah in her argument on the delay issue: Fox 161 FCR 263; [2007] FCAFC 150 and NAIS 228 CLR 470; [2005] HCA 77. Correctly, and for the purposes of s 400(1), the Full Bench then sought to apply these principles to the facts and circumstances before it, in relation to the Commissioner’s decision. It did so by considering “the detail of the decision, the evidence in the matter and the extensive criticisms of the Commissioner’s findings made in the notice of appeal and submissions” (see at [36]), so as to determine whether the kinds of effects of which the High Court spoke in NAIS 228 CLR 470; [2005] HCA 77 could be discerned in the Commissioner’s decision.
48 In that analysis it found that there had been “an exhaustive process of analysis” of the “extensive” evidence before the Commissioner (at [37]). This is not a characterisation which reveals any misunderstanding of the principles arising from NAIS 228 CLR 470; [2005] HCA 77 and Fox 161 FCR 263; [2007] FCAFC 150, which the Full Bench sought to apply. Rather, it reflects the correct approach of looking at the reasoning of the first-instance decision to see whether the delay has had a discernible effect. The conclusion of the Full Bench (at [38]), that “[a]fter reviewing those materials we have concluded that the delay did not make the decision unsafe or amount to material unfairness”, reflects the outcome of the process the authorities require.
49 It is true that in the next sentence the Full Bench states that delay in delivering the decision does not itself constitute “grounds for allowing the appeal”, even though the Full Bench was at this stage only considering whether to grant permission to appeal. Read in context it is apparent that, while perhaps loosely expressed, the Full Bench was directing its attention towards delay as a consideration informing its view on where the public interest lay in Ms Dafallah’s application. That is apparent from the cross-reference later in its reasons at [44] back to these passages. It is clear that, if the Full Bench had considered the delay had resulted in unfairness, or had made the Commissioner’s decision unsafe, it would have considered that a ground on which it might allow Ms Dafallah’s appeal, and thus would have considered it in the public interest under s 400(1) to grant permission to appeal so as to avoid manifest injustice to Ms Dafallah. That is the kind of reasoning process open to the Full Bench in considering the exercise of its discretion under s 604(1), read with s 400(1).
50 Ms Dafallah’s submissions as to the existence of jurisdictional error affecting the orders and decision of the Full Bench should be rejected.
WHETHER THE COMMISSIONER’S DECISION IS AFFECTED BY JURISDICTIONAL ERROR
51 While it is correct that this Court can exercise jurisdiction under s 39B(1) of the Judiciary Act (and also under s 562 of the FW Act) over a person holding office under the FW Act, whether a single Commissioner or a Full Bench (see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 at [171] per Katzmann and Rangiah JJ), relief by way of orders reflecting the constitutional writs and ancillary relief is discretionary: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [52] per Gaudron and Gummow JJ. Their Honours gave as the activating principle the importance of judicial supervision of executive and administrative action to the rule of law. However, their Honours also recognised a range of circumstances in which relief might be refused in an exercise of discretion, one of which relates to the existence of adequate alternative remedies. In my opinion, these principles also apply to the Court’s jurisdiction under s 562 of the FW Act and its powers under s 545.
52 In this case, as the Full Court recognised in Abigroup, it was possible for an appeal to the Full Bench of the FWC to “cure” a denial of procedural fairness which had existed before the Commission: Abigroup [2013] FCAFC 148 at [63] per Buchanan J, at [169] per Katzmann and Rangiah JJ. The Court also referred (at [62], [168]) to the judgment of Mason J in R v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation (1981) 147 CLR 471 at 484-485.
53 In Abigroup, Katzmann and Rangiah JJ held there was no such curing of the alleged denial of procedural fairness in that proceeding, because the Full Bench examined the first-instance decision for error but did not purport to examine for itself whether Abigroup had made out its case under s 418 of the FW Act. Buchanan J took a contrary view, finding that the Full Bench had considered material relied on by the appellant union and that cured any lack of procedural fairness at first instance. His Honour also held the decision of the Full Bench was not affected by jurisdictional error.
54 Notwithstanding the differences in opinion about the curing or otherwise of a denial of procedural fairness, Katzmann and Rangiah JJ made it clear they would not grant the relief sought under s 39B of the Judiciary Act unless they were satisfied the decision of the Full Bench was affected by jurisdictional error. Unless it was, their Honours reasoned, “it would be futile to grant relief in respect of a decision at first instance when the appellate decision stands and is conclusive and operative” (at [176]). One might add to that the proposition that it is not in the interests of the administration of justice for this Court on judicial review to reach conclusions effectively contrary to the decision-making of the Full Bench in its appellate jurisdiction under the FW Act, by calling up and quashing the decision of a Commissioner, unless it has also formed the view that the decision of the Full Bench is itself affected by jurisdictional error. In my respectful opinion, this means this Court should not begin with a fresh and unfettered examination of the decision of a Commissioner for legal error, and then move to see if any error thus identified had been properly addressed by the Full Bench. That is essentially what Ms Dafallah invited the Court to do in this proceeding. Rather, this Court should begin with an examination of the decision of the Full Bench and, unless and until it appears that decision is affected by jurisdictional error, in my respectful opinion it is not appropriate to embark on a fresh and detailed consideration of the decision of the Commissioner. There were many points in both the written and oral submissions on behalf of Ms Dafallah where it appeared that her legal representative approached this Court’s supervisory jurisdiction over the Commissioner’s decision as if the decision of the Full Bench did not exist, and the appellate jurisdiction in s 604 of the FW Act, conditioned as it is by s 400(1), did not exist. It is not the case that an applicant, having unsuccessfully applied for permission to appeal, can proceed in this Court as if s 604 does not exist.
55 Given the conclusion I have reached about the decision of the Full Bench, it is therefore unnecessary to address in any detail the challenge by Ms Dafallah to the Commissioner’s decision, whether on the grounds of misconstructions of the legislation, bias, delay or any of the other grounds relied on. No doubt the delay in determining Ms Dafallah application was out of the ordinary, as the Full Bench observed, but I have concluded it was open to the Full Bench to find it was not of itself such a manifest injustice as to satisfy the public interest condition in s 400(1) of the FW Act. All of the matters raised in respect of the Commissioner’s decision before this Court were raised before the Full Bench. None of them satisfied the Full Bench that it was in the public interest to grant permission to appeal. As I have found, the Full Bench’s decision in that respect is not affected by jurisdictional error.
56 In my opinion, as a matter of discretion and applying the approach set out in Abigroup [2013] FCAFC 148 and R v Marks 147 CLR 471, orders made in exercise of the Court’s jurisdiction under s 39B of the Judiciary Act (or ss 562 and 563 of the FW Act read with s 545) should not issue against a first-instance decision of the Commission, where leave to appeal had been sought and refused after full argument, and the refusal of leave is not affected by jurisdictional error, unless there are compelling reasons to permit an applicant in effect to circumvent the statutory appeal provisions and the limits Parliament has imposed by them. There are no such compelling reasons in the present case. Accordingly, there is no occasion to consider separately whether the Commissioner’s decision is affected by jurisdictional error.
ESTOPPEL AND ABUSE OF PROCESS IN RESPECT OF THE NON-JUDICIAL REVIEW CLAIMS
57 Melbourne Health submitted that the Court can and should dismiss all of Ms Dafallah’s non-judicial review claims on the grounds they constituted an abuse of the processes of this Court. The basis for that submission was that Ms Dafallah was seeking to re-agitate the unfair dismissal proceeding already determined by the FWC, and seeking reinstatement and compensation which were remedies she had unsuccessfully pursued in the FWC.
58 The different jurisdictions and jurisdictional bases of the Commission and this Court mean, as the Full Court said in Miller v University of New South Wales (2003) 132 FCR 147; [2003] FCAFC 180, that claims of res judicata and issue estoppel as between claims in the Commission and proceedings in this Court are misconceived:
The primary judge held that the decision of the AIRC conclusively determined that the direction given to the appellant to assume the disputed duties was both reasonable and lawful, that there was conduct on the part of the appellant amounting to serious misconduct, namely, conduct constituting a serious breach of contract in evincing an intention no longer to be bound by the contract, and that there existed a valid reason under the certified agreement for the termination of the appellant’s employment by the respondent. In our opinion, these were merely steps along the way to the value judgment which had to be made in exercise of the only jurisdiction given to the AIRC, and could give rise to no estoppel. None of them was the necessary foundation of the ultimate decision. There was no jurisdiction to make such findings conclusively. Put another way, the question as to whether the termination was harsh, unjust or unreasonable will not be litigated in this proceeding in determining any of the pleaded remedies. We do not agree that this analysis is contrary to what was decided by Edwards v Giudice (1999) 94 FCR 561. It may be that the different legislation considered in Green v Hampshire County Council enables that decision to be distinguished. If not, we respectfully disagree with it.
In our opinion, the present proceeding is not an attempt to litigate again matters which have been decided against the appellant in the relevant sense. As we have endeavoured to explain, a proceeding in the AIRC for relief on the ground that termination of employment was harsh, unjust or unreasonable is quite different in kind from the jurisdiction which the court is being asked to exercise in this proceeding. The criterion for relief is different. The remedies available pursuant to s 170CH, including reinstatement and continuity of employment, are not available to the court. Correspondingly, the relief sought in this proceeding was not available to the AIRC, although there could be the potential for overlap in relation to monetary compensation. The substance of the present proceeding could not have been combined with the proceeding in the AIRC. The separate statutory claims pursuant to ss 413 and 413A and the common law claim are not within the jurisdiction of the AIRC. We thus conclude that the ground upon which the proceeding was stayed was not available. No alternative basis for a finding of abuse of process is suggested.
59 Estoppel on the principles set out in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 cannot apply, for the same reasons, as between the Commission and this Court. Outside the three categories of Anshun estoppel, issue estoppel and res judicata, the Full Court in Miller expressed some reluctance to identify any residual category of abuse of process. Ryan and Gyles JJ said at [81]:
In our opinion, there is considerable difficulty in finding a proper basis for the concept of staying proceedings as an abuse of process upon the ground of relitigation in the case of proceedings between the same parties which goes beyond the effect of res judicata, issue estoppel and Anshun estoppel (incorporating the English Henderson v Henderson estoppel); (see the illuminating discussion of the broad topic by the learned author of The Doctrine of Res Judicata (3rd ed, 1996), Ch 26). Indeed, if the principle is so broad, it is difficult to understand why the various kinds of estoppel are maintained at all. In our view, near enough to an estoppel is not good enough to establish abuse of process between the same parties without some other element being present. There is the danger that persistent or unattractive litigants with awkward cases might be refused access to the courts if there is a broad and imprecise discretion to stay actions which are somewhat like a previous proceeding.
60 However, I do not understand their Honours to have been referring to well-established categories of abuse of process, which found expression in the powers conferred on this Court by r 26.01 of the Federal Court Rules 2011 (Cth), and which were summarised by three members of High Court in Walton v Gardiner (1993) 177 CLR 378 at 392-393:
The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v. Chief Constable of the West Midlands Police as “the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people”.
61 The matters identified by the High Court are the kinds of “other elements” to which Ryan and Gyles JJ in Miller 132 FCR 147; [2003] FCAFC 180 referred. Re-litigation, or re-agitation, of precisely the same issues or disputes, especially repeated re-litigation or re-agitation (see Shaw v MAB Corporation Pty Ltd [2013] FCA 1231 per Jessup J) may be found to be an abuse of process, but that will be because of particular “elements” identified on the evidence in a particular proceeding: see SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 per Jagot J; Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 per French J.
62 Melbourne Health made very brief submissions on its abuse of process claims, and did not develop any arguments based on these principles, nor explain by way of evidence and submission how they might be applied to the two applications currently before the Court. In those circumstances, and given the matters referred to in Miller 132 FCR 147; [2003] FCAFC 180, there is no basis revealed on the material for an application of general abuse of process principles, despite the overlap of facts in aspects of Ms Dafallah’s non-judicial review claims. If a respondent seeks to have an applicant’s claims summarily dismissed without consideration of their merits on the basis of abuse of process, it is incumbent on the respondent to present a detailed and developed argument on the evidence and the law.
63 While the agitation in two different jurisdictions of complaints about the same course of events is burdensome on persons in the position of Melbourne Health, for the reasons set out in Miller it is not precluded. I do not consider that the extension of the remedies available to this Court under the FW Act is, as Melbourne Health submitted, sufficient basis to distinguish the Full Court’s reasoning in Miller. If anything, it may reveal an intention by Parliament that persons in Ms Dafallah’s position not be shut out of this Court if they have failed in an unfair dismissal claim in the FWC.
THE KEY SEQUENCE OF EVENTS UNDERLYING MS DAFALLAH’S NON-JUDICIAL REVIEW CLAIMS
64 Ms Dafallah’s claims concern a sequence of events beginning in July 2009 and ending in September 2010, when her employment was terminated. Although she concedes she had some earlier difficulties with her performance between 2005 and 2007, she contends she was given no formal warnings, and was not aware of the level of documentation or concern Melbourne Health possessed about those earlier incidents. In her current claims she contests Melbourne Health’s ability to rely on those earlier performance issues. However, her principal complaints revolve around performance issues Melbourne Health raised with her from July 2009 onwards, through a series of meetings and warnings.
65 The evidence in its current state before the Court supports the following findings as to the sequence of events.
66 The first warning given to Ms Dafallah concerned her allegedly sleeping during her shift on 4 July 2009. Ms Dafallah did not deny falling asleep for a short period of time during her break — possibly 20 minutes — although she put it in context in terms of the other demands in her life. Melbourne Health’s informants alleged she was asleep for 30 minutes.
67 Melbourne Health contends there was a meeting relating to this incident on 9 July 2009. It identifies this as the first verbal warning, and as a counselling session for the purposes of the Agreement and Melbourne Health’s policies. Ms Dafallah’s evidence is that the meeting was about extra working hours and an unrelated work issue. She disputes Melbourne Health’s characterisation of it. This is one of the many examples in this proceeding of unresolved factual issues brought about by the way in which the proceeding has been conducted, and the deliberate choices of both parties not to rehearse, and test, the evidence of each party’s witnesses about such factual issues. The Court is left unable to assess the reliability of the competing accounts and to make any findings about those events.
68 What is clear on the evidence is that Melbourne Health sent a letter to Ms Dafallah, dated 10 August 2009 and entitled “Outcome of meeting”. It was from Mr Dobre Milenkovski, Ms Dafallah’s Manager. The letter referred to a meeting on 4 August 2009, called after a written complaint was received by Melbourne Health on 14 July 2009 about Ms Dafallah falling asleep on her shift. The letter also said:
We have had several conversations and meetings regarding break times and professional behaviour. Therefore we consider your responses to be unsatisfactory and as such, issue you with a first written warning. It is our expectation that you perform you [sic] duties in a professional manner, that you do not sleep during your shift, you adhere to the allocated time for your breaks and that you inform the Nurse in Charge when taking your breaks.
(Emphasis in original.)
69 The letter then went on to refer to a second complaint, dated 27 July 2009, about Ms Dafallah’s “unprofessional conduct”, which was said to relate to not answering her pager, and therefore not collecting bloods to take for analysis and not assisting in the transfer of a patient. Ms Dafallah does not, and never has, accepted these allegations.
As our expectations have been clearly outlined to you and you have not complied, this letter constitutes a second written warning. Further instances whereby you do not communicate with the nursing staff and Nurse in Charge during your shift, perform your tasks in an unproductive manner or exhibit unprofessional behaviour and conduct, further disciplinary action may result.
A copy will be placed on your personnel file and should there be continuance of authorized absences, failure to notify me as agreed or failure to provide the necessary documentation, this will result in further disciplinary action as per the MH Disciplinary Procedure Policy HR4.2.
(Emphasis in original.)
71 The reference to the letter containing “a second written warning” (as well as a first written warning) forms part of Ms Dafallah’s complaints in this Court in relation to cl 38 of the Agreement, and her breach of contract claims.
72 In September 2009, there were a further four workplace incidents involving Ms Dafallah. Melbourne Health convened a disciplinary meeting with her and her union representative on 15 October 2009, to discuss these four incidents. Again, Ms Dafallah had explanations and in some respects different versions of these events, about which she gave evidence to the Commission and some of which were also in her evidence to this Court. Again, however, there was no cross-examination on this evidence, none of the other critical witnesses gave evidence before this Court and it is not possible for this Court to be satisfied of whose version and characterisation of the events is the most reliable and accurate.
73 What is uncontentious is that, after the meeting on 15 October 2009, Ms Dafallah was given a final warning by letter dated 26 October 2009. The letter concluded by saying:
We consider your responses to the above incidents to be unsatisfactory. As our expectations were clearly outlined to you at our meeting on 4 August 2009 whereby you were issued with a second written warning and you have not complied, this letter now constitutes as a final warning. A copy will be placed on your personnel file and any further instances whereby you do not directly communicate with the nursing staff and Nurse in Charge during your shift, perform your tasks in an unproductive manner, which includes not responding to your pager, or exhibit unprofessional behaviour and conduct, Melbourne Health may seek to terminate your employment. You were provided with a copy of the Melbourne Health Disciplinary Policy.
(Emphasis in original.)
74 A period of more settled employment then ensued for Ms Dafallah, but on 10 July 2010 there was a series of further incidents. Melbourne Health set out the incidents, and its concerns over them, in a letter to Ms Dafallah dated 22 July 2010. Again, Ms Dafallah disputes Melbourne Health’s version of events but neither party’s account has been developed or tested in this Court. A meeting was held between Ms Dafallah, her union representatives and management representatives from Melbourne Health on 3 August 2010 and then adjourned to 12 August 2010: at both meetings the issues from 10 July 2010 were discussed.
75 Although it appears versions of what occurred vary, all parties agree that, at this meeting, the prospect of Ms Dafallah’s employment ending (whether through termination or resignation) was raised. Ms Dafallah’s evidence is that Mr Milenkovski told her Melbourne Health were going to proceed with a recommendation to terminate her employment. There is no dispute that she became very upset during the meeting. Ms Dafallah’s evidence is that she was “escorted from the premises as though I was a criminal”, had her ID taken from her and was not allowed to return to the premises thereafter. Melbourne Health does not appear to contest that it was foreshadowed to Ms Dafallah that her employment would be terminated, nor does it appear to contest that she was not allowed to attend for work after this date.
76 At the suggestion of Ms Dafallah’s representative, Melbourne Health agreed to Ms Dafallah providing a written response to the allegations against her, and to Melbourne Health’s foreshadowed consideration of whether to terminate her employment. This was provided by email on 23 August 2010. After receipt of this response, Mr Milenkovski wrote to Ms Dafallah on 25 August 2010 and informed her, in some detail, why Melbourne Health did not accept her responses to the allegations. The letter continued:
You were reminded that, at our formal meeting on 15 October 2009, you were issued with a final warning for unsatisfactory work performance and conduct. You were informed that should there be any further instances whereby you do not directly communicate with the nursing staff and Nurse in Charge during your shift, or if you fail to perform your tasks in a productive manner, which includes not responding to your pager, or if you exhibit unprofessional behaviour and conduct, Melbourne Health may seek to terminate your employment.
In conclusion, our findings demonstrate that you have continually failed to fulfil the requirements of your Clinical Assistant role over a significant period of time. You have been repeatedly disciplined and provided every opportunity to improve your work performance and demonstrate your willingness to work in a manner that is consistent with Melbourne Health’s requirements and the expectation of the Clinical Assistant role. Consequent to this current situation, where you have received a final written performance warning and have again breached the requirements of your Clinical Assistant position, we will be making recommendation to Melbourne Health that your employment be terminated. Until such recommendation is determined you will remain stood down from duties on full pay.
77 Mr Duckworth’s evidence in this proceeding was that the decision to recommend Ms Dafallah’s employment be terminated was made at the 12 August meeting, although he maintained that Melbourne Health then properly considered Ms Dafallah’s subsequent written responses to the allegation before deciding to implement the termination decision. I accept that evidence.
78 On 1 September 2010, the Executive Director of Human Resources and Workplace Development at Melbourne Health wrote to Ms Dafallah informing her that she had decided to terminate Ms Dafallah’s employment, with effect from 1 September 2010. The letter stated:
It was found that you repeatedly failed to carry out and follow instructions in your role of a Clinical Assistant and you demonstrated conduct which was not acceptable to Melbourne Health. The details of specific situations have been investigated and discussed with you over a significant period of time. You have received a number of written warnings to date. At every stage of the process you have been given the right of reply and an opportunity to improve your performance.
79 Mr Duckworth’s evidence was that the period of poor performance to which this letter refers is the period between July 2009 and August 2010 and that earlier periods of poor performance between 2005 and 2007 did not actuate this decision. I accept that evidence. Clearly earlier poor performance formed part of the context of Ms Dafallah’s employment situation with Melbourne Health at a general level, but no more than that.
80 Ms Dafallah does not dispute that she was paid her entitlements, and given the requisite pay in lieu of notice.
CLAIMED CONTRAVENTION OF CLAUSE 38 OF THE AGREEMENT
81 Mr Duckworth deposed, and I accept, that at the time of the termination of Ms Dafallah’s employment, she was employed in accordance with the Agreement. The parties agreed, and I find, that the Agreement applied to both Melbourne Health and Ms Dafallah for the relevant period. The parties did not provide the Court with any submissions about the status of the Agreement under the FW Act. However, it appears the Agreement was lodged with the Australian Industrial Relations Commission on 26 March 2006 and certified by the AIRC on 18 April 2006. As a pre-reform certified agreement under the Workplace Relations Act 1996 (Cth) (WR Act), the Agreement is a “WR Act instrument”, continuing to have effect as an “agreement-based transitional instrument” by the operation of Item 2 of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act).
82 This Court has jurisdiction to make pecuniary penalty orders in respect of contraventions of civil remedy provisions, pursuant to s 546 of the FW Act. Section 539(2) sets out standing, jurisdiction and maximum penalties in respect of contraventions of the civil remedy provisions.
83 Sch 16 to the Transitional Act sets out requirements for compliance under the Transitional Act. Item 2(2) provides that “[a] person must not contravene a term of an agreement-based transitional instrument that applies to the person”. By Item 16 of Sch 16, Item 2(2) is a civil remedy provision.
84 By its inclusion pursuant to Item 16 of Sch 16 to the Transitional Act, column 2 of Item 40 of the table at s 539(2) provides that persons who may apply for orders in relation to contraventions relevantly includes an employee. Column 4 provides that the maximum penalty that may be imposed is 60 penalty units. Section 546(2)(b) provides that, for bodies corporate, the maximum penalty payable is 5 times the number of penalty units referred to in the table at s 539(2).
85 “Penalty unit” is defined in s 12 of the FW Act as having the meaning given in s 4AA of the Crimes Act 1914 (Cth). That provision in turn prescribed (at the relevant time — the amount has since increased) a penalty unit as $110. Thus, the maximum that may be imposed on Melbourne Health for contravention of the Agreement in 2009-2010 is $33,000.
86 Section 546(3) provides that the Court may order the penalty be paid to a range of persons there identified, including an employee: see s 546(3)(c). Ms Dafallah seeks an order for the penalties to be paid to her.
87 Clause 38 of the Agreement provides:
38. DISCIPLINARY PROCEDURES
38.1 Where disciplinary action is necessary, the management representative shall notify the employee of the reason. The first warning shall be verbal and will be recorded on the employee’s personal file. A local union or other
representative shall be present if desired by either party.
38.2 Where further disciplinary action is necessary the matter will be discussed with the employee and a second warning in writing will be given to the employee and recorded on the employee’s personal file. The local union or other representative shall be present if desired by either party.
38.3 Where further disciplinary action is necessary the employee will be seen
again by management. A final warning may be given. If a final warning is to
be given then it shall be issued in writing and if required by either party, a
copy sent to the relevant union. The employee has the right to union or other
representation.
38.4 Where further disciplinary action is necessary then the employee may be
terminated. No dismissals are to take place without the authority of senior
management.
38.5 Summary dismissal of an employee may still occur for acts of serious and wilful misconduct.
38.6 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.
38.7 All new employees shall be handed a copy of these procedures on
commencement of employment.
88 Putting situations of serious misconduct to one side, the terms of cl 38 on their face contemplate a sequence of warnings, which escalate in their seriousness as circumstances do not improve and termination of employment becomes more likely. Subclauses 38.1, 38.2 and 38.3 are intended to provide an employee with the benefit of three separate warnings before the agreement permits the employer to consider termination of employment. That is why cl 38.4 uses the language of “further” disciplinary action, and contemplates at this stage that termination of employment may occur.
89 Of their nature, warnings are designed not only to put an employee on notice of conduct or behaviour the employer considers to be contrary to the employment contract, but also to give the employee opportunities to remedy the conduct or behaviour, all the while understanding (because of a sequence of warnings) that matters may escalate once three warnings have been given to a position where the employer is entitled to terminate employment. Recently in The Heran Building Group Pty Ltd v Anneveldt [2013] FWCFB 4744, the Full Bench of the FWC cited with approval (at [38]-[39]) the decision of the Australian Industrial Relations Commission in Fastidia Pty Ltd v Goodwin (2000) 102 IR 131 at [43]:
[38] In Fastidia Pty Ltd v Goodwin, a Full Bench of the AIRC said of s.170CG(3)(d) of the pre-reform WR Act:
“[43] In the context of s.170CG(3)(d) we think that a warning must:
- identify the relevant aspect of the employee’s performance which is of concern to the employer; and
- make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.
[44] In relation to the latter requirement, a mere exhortation for the employee to improve his or her performance would not be sufficient. We also note that we accept that these criterion are to be applied in a practical and commonsense way taking into account the employment context.”
[39] We respectfully agree with the Full Bench and conclude that such an approach remains relevant for present purposes.
90 I accept Ms Dafallah’s contention that the Melbourne Health letter extracted at [68]-[70] above contains, for the purposes of cl 38 of the Agreement, two written warnings in one document, given at the same time. I also accept Ms Dafallah’s contention that the first warning was given in writing, rather than verbally as cl 38 contemplates. I reject Melbourne Health’s submission that the discussion on 9 July 2009 “in substance” was a verbal warning, for two reasons. First, there is an insufficient evidentiary basis for me to be satisfied about what occurred at the 9 July meeting, and therefore to make a finding contrary to the plain words of Melbourne Health’s own letter. Second, cl 38 is clear in its effect of imposing an obligation to give three separate, and sequential, warnings. The purpose of that obligation is to require a staged approach by an employer to disciplinary action which may lead to termination of employment, and to give employees a reasonable opportunity to remedy performance or conduct issues which are of concern to an employer. Even looking at the incomplete picture of what occurred on 9 July, there is nothing in the evidence that satisfies me that words and conduct by Melbourne Health at that meeting made it clear to Ms Dafallah that she was being given a warning for the purposes of her performance record and the disciplinary processes of Melbourne Health.
91 I do not accept Melbourne Health’s contention that Ms Dafallah elected to “discuss” at a meeting on 25 July 2009 both matters which were the subject of the two written warnings in the 10 August 2009 letter, and that this somehow provides a justification for Melbourne Health combining the first and second warnings into one document and giving them at the same time. First, by reason of the way both parties conducted their case in this Court, there is insufficient evidentiary basis for me to make any findings on contested issues at that meeting, or events leading up to it. Second, I do not accept that any election by Ms Dafallah to discuss both the 14 July 2009 and 27 July 2009 events in one meeting (even if I could have been satisfied on the evidence of such an election) necessarily removes Melbourne Health’s obligations under cl 38 of the Agreement.
92 In those circumstances, I find Melbourne Health contravened cl 38 of the Agreement, by not adhering to the warning process it sets out. Although it was contended there were two contraventions, I find Melbourne Health’s non-adherence in two ways to the process required by cl 38 to be a single contravention. The contraventions arose out of the same course of conduct by Melbourne Health: see s 557(1) of the FW Act and, in terms of applicable principles, Construction, Forestry, Mining and Energy Union v Williams (2009) 262 ALR 417 at 426-427.
93 Nor do I accept that the breach of cl 38 was “trivial” or without consequence” as Melbourne Health submitted. The breach deprived Ms Dafallah of a prescribed three-stage process in which she could clearly understand the escalating seriousness of the warnings which were given to her and their potential consequences for her employment. This consequence is more apparent by reason of the giving of two warnings in one letter, and Melbourne Health’s attempt to use them as first and second warnings for the purposes of satisfying its obligations under the Agreement and under its disciplinary processes.
94 A consequence of giving Ms Dafallah a first and second warning at once was that it moved her immediately, in terms of the disciplinary processes, to the third stage, and very close to termination of her employment. It gave her less time to seek counselling, advice and strategies to improve her performance. It gave her no opportunities to address the particular allegations of poor performance separately in terms of how she might remedy them. It gave her fewer opportunities in the workplace to improve her performance. It marked her out in the workplace as an employee close to termination. It escalated her anxiety about the security of her employment, which was hardly likely to contribute to better performance. I find there were tangible consequences for Ms Dafallah flowing from this contravention.
95 Nor am I satisfied, as Melbourne Health suggested I could be, that Ms Dafallah’s employment would necessarily have ended at the same time. There is an insufficient evidentiary basis to support this submission. It is contrary to what might reasonably be supposed to have occurred had the warnings been given carefully and sequentially and in an escalating fashion, as cl 38 contemplates. For example, there was a period between the August 2009 letter and the final warning in October 2009. Then there was a substantial period of nine months between that final warning and the conduct of Ms Dafallah relied on by Melbourne Health to justify termination of her employment. If cl 38 had been adhered to, it may have been the case that all the matters in the 10 August 2009 letter would have been the subject of a first verbal warning. It is not possible on the evidence to speculate as to what course events might then have taken. There is a wholly insufficient basis in the evidence for me to accept the implication underlying Melbourne Health’s submission on this issue: namely, that Ms Dafallah was such a poor performing employee, with such wilful disregard for her responsibilities, that she would have inevitably been dismissed, and in the same time period.
96 However, there is also a wholly insufficient evidentiary basis for me to accept Ms Dafallah’s submission that she would have remained employed by Melbourne Health, that there would have been no more performance issues justifying a final warning or a subsequent termination of employment. If anything, the evidence (such as it is) does support an inference that Ms Dafallah went through periods of poor performance on an intermittent basis.
97 Doing the best I can with unsatisfactory evidentiary bases for both parties’ submissions on this matter, it seems to me the evidence does permit a finding that there would, at the very least, have been some additional period of time during which Ms Dafallah would have remained employed, and Melbourne Health’s breach of cl 38 has deprived her of that period of further employment.
98 I note that at [182] of her reasons, the Commissioner made a finding, for the purposes of considering Ms Dafallah’s unfair dismissal claim, that there was no breach of the Agreement. That finding is not the subject of any of Ms Dafallah’s judicial review claims in this Court, which I have summarised at [9] above. On the material before the Commissioner, a finding different to the one I have made may well have been open. The finding of contravention I have made arises in this Court’s jurisdiction under s 562 of the Fair Work Act 2009 (Cth), on the evidence before this Court.
99 Since I have accepted Mr Duckworth’s evidence about the periods of poor performance relied upon being one that did not include incidents between 2005 and 2007, I do not consider there is any basis for Ms Dafallah’s second allegation of contravention of cl 38.
100 I deal with the relief appropriate to reflect these findings at [139] to [181] below.
BREACH OF CONTRACT CLAIM
101 This claim depends on whether the disciplinary procedures of Melbourne Health relied on by Ms Dafallah were incorporated into her contract.
102 Those procedures are contained in parts of a document entitled “Melbourne Health Procedure”. The whole of the Procedure was not tendered in evidence. However, the part which is entitled “9.4.2 Disciplinary Procedure”, which appears in the “Human Resources Policy” part of the Procedure, was in evidence. The extract states that it was issued in June 2009 and revised in June 2012. It refers to the predecessor to the FW Act, the WR Act.
103 The policy relevantly provides:
2. PURPOSE AND SCOPE
Provides employees and management with a recognised process to remedy and resolve continuing problems or unacceptable employee performance or conduct.
3. DEFINITIONS
4. RESPONSIBILITIES
Executive Director Human Resources & Workplace Development, Human Resources Business, Managers, all Melbourne Health Managers and Melbourne Health Staff have accountability and responsibility for ensuring implementation of and compliance with this procedure.
5. PROCEDURE
5.1. Melbourne Health has a clearly defined process for remedying and resolving problems or unacceptable employee performance or conduct
5.2. Where differences exist between Awards/Agreements/Contracts, it will be necessary to confirm the requirements before instituting the disciplinary procedure
5.3. An employee may be instantly dismissed for acts of serious and wilful misconduct.
5.4. To implement the disciplinary procedure the following steps must be taken:
a Counselling
i Natural justice must be afforded to the employee and as such the employee should be advised that a problem exists and be given an opportunity to respond and counselled. Both parties should attempt to resolve any problem or confusion that exists and the employee should be given appropriate guidance and assistance on the issues identified during the counselling.
ii It is most important to anticipate, wherever possible, that the employee is approaching the first warning stage (or subsequent formal warning stage) of this procedure. Accordingly, the employee should be counselled prior to issuing the first formal written warning (or subsequent formal warning). Importantly, the employee should be informed of the likelihood of a first or subsequent formal warning first warning being issued if the problem continues.
5.5. First Written Warning
a Where further disciplinary action is deemed necessary the Manager (or delegate) shall inform the employee that their performance is not satisfactory and will state the reason and indicate the corrective action required of the employee. In some instances this may require retraining. The expected performance standards must be made clear and a plan of action and follow up mechanism determined, including the specification of a timeframe appropriate to the circumstances. The local union representative (or other support person) shall be present if desired by either party.
b The Manager (or Delegate) will prepare a written warning which must include the facts that initiated the warning as well as the outcome of the warning. The original copy is given to the employee and a copy placed in the personnel file. (Refer to 5.6d)
c A final warning may be issued in incidents of serious and wilful misconduct.
5.6. Subsequent Warnings
a If the problem continues the matter will be discussed with the employee and a Second Warning in writing will be given to the employee and recorded on the personnel file. This warning shall be written and issued by the Manager. The second warning should also take the form of a counselling session. If desired by either party the local union representative (or other support person) can be invited to attend.
b If the problem continues, the employee shall be seen again by the Manager and a representative from the Human Resources Department. If a Final Warning is to be given, it should be issued in writing with reference made to prior warnings. A copy of the warning will be placed in the employee’s personnel file.
c If the problem recurs, the employee’s employment may be terminated. No termination of employment or dismissal is to take place without adhering to the ‘Termination of Employment’ policy and the Delegation of Authority.
d If, after any warning, a period of 12 months elapses without any further warning or action being required, all adverse reports to the warning shall be removed from the employee’s personnel file.
104 The evidence and submissions were sparse about the content of Ms Dafallah’s contract of employment. The letter of offer to Ms Dafallah from (as her employer then was) North Western Health, dated 10 May 2000, stated:
Dear Ms Dafallah
Re: Appointment as Patient Services Assistant
I am pleased to offer you the above position with the Aged and Transitional Care Unit of Melbourne Extended Care & Rehabilitation Service.
The terms of this appointment are 6 months temporary position with a review after 5 months pending the future of the unit.
Commencement date: Week commencing 15th May 2000 as Rostered
Employment status: Temporary Part-time
Classification: PS11
Hours per week: 12 (with an option to work additional hours)
Conditions of employment: Covered by the North Western Health Care Network / Australian Nursing Federation Agreement 1997, and is subject to the Network By-Law’s, Regulations, Policies and any Organisational Change Agreement as may apply.
Remuneration Packaging of up to 30% of your base annual salary is available in accordance with the approved “menu” of benefits. In the event that the Network becomes liable for FBT the components of your remuneration will be adjusted to reflect the additional FBT cost (that is, your base salary will be reduced by the amount of the FBT payable). Please ring 9882 5000 to arrange an appointment with
Remunerator Australia Pty Ltd should you wish to utilise the remuneration packaging option.
105 It was not contentious between the parties and I accept that, pursuant to ss 204 and 221 Health Services (Governance) Act 2000 (Vic), employees transferred to Melbourne Health were to be regarded as having been employed by Melbourne Health and as having been employed on the same terms and conditions applicable immediately prior to transfer.
106 The letter of offer records Ms Dafallah as accepting this offer of employment on 18 May 2000.
107 However, it is apparent that, from that time, various terms and conditions of her employment have changed. There is negligible evidence about those changes. There is a document adduced in Ms Dafallah’s evidence, from Melbourne Health and dated 29 October 2003, which confirms her as a permanent part-time employee of Melbourne Health, but simply states “All other terms and conditions of employment remain unchanged”.
108 The evidence is contradictory and wholly unsatisfactory from both parties as to the terms and conditions of Ms Dafallah’s employment over time and especially since she has been working at the Royal Melbourne Hospital as a clinical assistant. For example, inconsistently with the documents referred at [104] and [107] above, Mr Duckworth’s evidence was that Ms Dafallah “commenced employment with Melbourne Health on 15 May 2000 as a full time Clinical Assistant”.
109 Ms Dafallah relies on the presence of the words “Network By-Law’s, Regulations, Policies and any Organisation Change Agreement” in the letter of offer, next to the words “Conditions of employment”, as being the source of the incorporation of, it is to be assumed, the entirety of the document entitled “Melbourne Health Procedure” into the contract of employment between Ms Dafallah and Melbourne Health, notwithstanding the whole of the document was not in evidence, and that particular set of procedures does not seem to have been in existence in 2000. Taking into account the operation of ss 204 and 221 of the Governance Act, the question is whether that Procedure as a whole (or possibly an equivalent procedure) was incorporated into the employment contract between North Western Health and Ms Dafallah in May 2000.
110 In Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120 at [23], Black CJ stated:
The principles to be applied in determining whether any, and if so what, parts of WWU were terms of the contract of employment are not in doubt. It is well established that if a reasonable person in the position of a promisee would conclude that a promisor intended to be contractually bound by a particular statement, then the promisor will be so bound. This objective theory of contract has been repeatedly affirmed as representing Australian law by the High Court. Thus, in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, 179, the Court said:
It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.
111 In the current circumstances, without the entirety of the Procedure being in evidence, it is not possible to understand the whole context of the document. It may well contain something akin to the purposive statements found by Buchanan J in McDonald v Parnell Laboratories (Aust) Pty Ltd (2007) 168 IR 375; [2007] FCA 1903 at [69] to indicate they should not be regarded as part of the employment contract. In that case, the policy documents made it clear they were to be used by managers as guidance and direction in implementing human resources responsibilities in accordance with company policy.
112 Although the fact that the list including “Network Policies” follows after the phrase “conditions of employment” gives some support to Ms Dafallah’s contention, the generality of the language, as well as the qualification inherent in the use of the words “as may apply” in the reference to “Network Policies” means it is difficult to identify what precisely is meant by “Network Policies”. That is especially so given this is a reference to a different legal entity. The letter from Melbourne Health of 29 October 2003 sheds no further light on the issue.
113 Unlike the situation in Goldman Sachs [2007] FCAFC 120, there is no evidence that Ms Dafallah was given these documents, or documents said to be their predecessors, before she accepted the offer of employment. There is no evidence she knew anything about what those documents contained or were concerned with. There is no evidence about what precisely the predecessor documents may have been, and what they contained.
114 The language of the letter of offer is not of a kind expressing a promise by the employee: cf Riverwood International Australia Pty Ltd v McCormick (2000) 177 ALR 193; [2000] FCA 889, where the relevant letter of offer contained a promise by an employee to “abide by” all company policies and practices in place, including alterations and new policies.
115 The language of the part of the Procedure in evidence is not overtly expressed as contractual: cf Goldman Sachs [2007] FCAFC 120 at [13]. There are indications that some of the contents of the relevant part may have their sources outside this document and therefore outside the contract: that is, there are references to certified agreements and to legislation.
116 Importantly, s 5.2 expressly contemplates there may be differences between the substantive content of and processes in this document and, amongst other things, “Contracts”.
117 Although the original reference to “Network Policies” is contained in a document which clearly does form part of Ms Dafallah’s employment contract, she has not discharged her burden of proving that the documents there referred to are incorporated by reference into her employment contract. There is no evidence at all about what those “Network Policies” were at the time of the contract. What evidence there is about the current version strongly suggests (by reference to s 5.2) that the employment relationship is to be governed first by industrial instruments outside the contract, and second, by specific terms in individual contracts. There is no basis to characterise the current procedures as incorporated into Ms Dafallah’s contract: see BHP Iron Ore Pty Ltd v Australian Workers’ Union (2000) 171 ALR 680; [2000] FCA 430 at [81]-[85].
118 The second aspect of Ms Dafallah’s contractual claim is her claim that it was an implied term of her contract of employment that Melbourne Health would not without reasonable cause conduct itself in a manner likely to destroy the relationship of trust and confidence between it and Ms Dafallah. She contended that a substantial failure by Melbourne Health to adhere to its employment policies (both its disciplinary policies and its termination of employment policies) was a breach of such a term, even if those policies were not incorporated into the contract of employment. She relied on Thompson v Orica Australia Pty Ltd (2002) 116 IR 186; [2002] FCA 939, Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 and Commonwealth Bank of Australia v Barker (2013) 214 FCR 450; [2013] FCAFC 83. Melbourne Health’s answer to this claim was to focus on the nature of the breaches alleged, and to contend that they were not sufficiently serious to constitute a breach of this term, even if such a term were to be implied.
119 The breaches identified by Ms Dafallah were those she identified for the purposes of her breach of contract claim dealt with above, and for her negligence claim, dealt with below. They were expressed in the following terms:
[a] There was no attempt to remedy and resolve alleged problems.
[b] The mandatory first step of constructive counselling was wholly ignored.
[c] The mandatory second step was not adhered to in that there was no constructive counselling, no consideration of retraining, no specification of performance standards, no plan of action or follow-up mechanisms and no timeframe for improvement.
[d] The mandatory third step was not adhered to in that there was no constructive counselling and the second warning was prematurely given at the second stage together with the first warning.
[e] Human Resources were actively involved from the outset of the disciplinary process.
[f] Natural justice was ignored throughout the process.
[g] The Second Respondent’s managers as justification for both the giving of warnings and the decision to terminate the Applicant’s employment, sought to rely on alleged and untested complaints from the period 2005-2007 much of which was unknown to the Applicant until the time of the hearing of matter 2010/12331, had never been investigated and to which the Applicant had never been given an opportunity to respond.
[h] The Second Respondent’s managers took no responsibility for implementation of and compliance with the procedure and accepted no accountability.
Particulars
Paragraphs 20, 21 to 60 and 67 to 73 and the particulars thereto are referred to and repeated
97. Further, the Second Respondent and its Managers, including Dobre Milenkovski and Human Resources Staff and Nurse Managers, adopted a contemptuous attitude towards their obligations with no regard to proper process or the truth or the rights and dignity of the Applicant, Mariam Dafallah. Still further, assumptions and prejudgements were made on the basis of the Applicant’s race and colour.
98. The objective of the Second Respondent and its Managers was to find the Applicant guilty of something, real or imaginary, rather than to remedy or resolve genuine problems.
120 The question whether a contractual term of the kind alleged is implied under Australian law into the contract of employment remains unsettled. Also unsettled is any clear line concerning the circumstances in which the implication of such a term might be rebutted. An example of a finding of no rebuttal by reason of the statutory and industrial context surrounding the employment of teachers is South Australia v McDonald (2009) 104 SASR 344; [2009] SASC 219.
121 In Shaw v New South Wales (2012) 219 IR 87; [2012] NSWCA 102, five members of the New South Wales Court of Appeal accepted for the purposes of a strike-out application that the existence of such a term, generally implied into contracts of employment, could not be said to be unavailable to the threshold required to strike out a claim based on such an allegation. The Court noted that, in both New South Wales v Paige (2002) 60 NSWLR 371; [2002] NSWCA 235 and Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2008) 72 NSWLR 559; ; [2008] NSWCA 217, the New South Wales Court of Appeal had assumed such a term could be implied.
122 In Barker 214 FCR 450; [2013] FCAFC 83, a majority of the Full Court of this Court held that there is a such a term implied into Australian employment contracts, applying prior to the termination of employment. The High Court has granted an application for special leave to appeal from this decision. However, and notwithstanding the respect to be afforded to the dissenting judgment in the Full Court, the law which a single judge of this Court must apply is that as stated by the majority in Barker.
123 The following propositions may be taken from the majority judgment in Barker 214 FCR 450; [2013] FCAFC 83:
The implied term at issue 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” (at [98]).
Notwithstanding that no High Court authority has determined whether the implied term forms part of employment contracts in Australia, and notwithstanding that the existence of such a term does not form the ratio decidendi of any of the 11 intermediate appellate court decisions which have considered this question, the weight of authority points in favour of acceptance of such a term (at [77]-[79]).
Where there have been observations at the intermediate appellate court level tending against such an implication, they have been directed at avoiding inconsistencies with the heavy regulation at state and federal level of the law in respect of termination of employment, rather than addressing the question whether the term applies to conduct which is independent of dismissal (at [85]-[87]).
The question before the Full Court related to the implication of such a term into an ongoing employment relationship, and was not concerned with the implication of such a term applicable in relation to dismissal or steps which are inextricably bound up with dismissal (at [96]-[97]).
The duties of an employer under the implied term are still being developed, however what can be said is the content of the contractual duty must be moulded according to the nature of the particular employment relationship and the facts of the case (at [108]). In Mr Barker’s case, the content was held to be that the Bank was required to take positive steps to consult with Mr Barker and inform him of suitable employment options when it made his position redundant (at [117]). The majority agreed with the primary judge’s finding that the Bank failed to make contact with him for a period which was unreasonably long, and this was due to the Bank itself withdrawing Mr Barker’s mobile phone and email facilities (at [131]).
124 Taken at a general level, and assuming the majority judgment in Barker is declaratory of the law as it has existed at least since South Australia v McDonald (2009) 104 SASR 344; [2009] SASC 219 and perhaps before that, the ratio decidendi of the majority judgment in Barker may well require a term of the kind for which Ms Dafallah contends to be implied into her employment contract prior to its termination in September 2010. I am prepared to assume as much in favour of Ms Dafallah.
125 However, her claim then breaks down at the point of proof of the content of any such implied term. As I have observed earlier, there was no evidence about the policies and procedures which existed at the time of Ms Dafallah was employed. There was no evidence about how, if at all, those policies and procedures had changed over the course of her employment. The absence of that evidence meant there was insufficient evidence about what the content of the implied term might be, as applied to this particular employment relationship. Even recognising the general way in which the majority in Barker expressed the term, the majority were able (as the trial judge in Barker was) to formulate the content of the duty of the employer arising from that implication because there was sufficient evidence in that case to do so. Here, there was no such development, first by way of evidence, nor then by way of argument. No doubt this arose in part because Ms Dafallah attempted to rely in this Court upon what had occurred in the Commission, including evidence given in the Commission. A good example of this is the allegation at [95] of Ms Dafallah’s contentions:
Melbourne Health did not comply with any aspect of its Disciplinary procedure in its dealing with the Applicant — and its witnesses in the proceeding U2010/12331 conceded same.
126 Putting to one side the breadth of this submission, since none of the relevant witnesses were called in this Court, and none of their evidence tested, such an assertion is unhelpful to Ms Dafallah’s claims in this Court.
127 Even if those problems could be surmounted (and it is not clear how), Ms Dafallah’s reliance on the implied term also breaks down at the point of breach. Again, no sufficient evidentiary foundation was laid in this Court for the specific breaches alleged and to which I have referred at [119] above. For a finding of breach to be made in respect of any or all of those matters, reliable evidence was required about the steps taken by Melbourne Health, what did and did not occur in meetings, the content of many specific conversations with Ms Dafallah, what Ms Dafallah did or did not do in response to warnings, how her performance at work was or was observed to change and what steps Melbourne Health did or did not take in response to her ongoing performance, and what the “counselling” asserted by Melbourne Health to have occurred was constituted by and how Ms Dafallah said it was either not counselling or not sufficient counselling. None of these matters were adequately explored in evidence before this Court. Instead, Ms Dafallah sought to rely on what occurred in the Commission, and Melbourne Health simply sought not to engage at any level of detail with the allegations. These are not the kinds of allegations where the burden of proof can be discharged by general or conclusionary evidence from the applicant, where there is no evidence from the respondent, especially where all these factual issues are admitted to have been the subject of contest elsewhere. Accordingly, the conclusion which must be reached is that Ms Dafallah has failed to discharge her burden of proof both on the content of any such implied term and its breach.
128 Without detailed evidence on these issues, evidence which could be tested by Melbourne Health and then be the subject of developed argument by both parties, the spectre of the “Trojan Horse” to which Jessup J referred in his Honour’s dissenting judgment in Barker 214 FCR 450; [2013] FCAFC 83 (at [318]) would be fully realised. There may well be something in his Honour’s opinion, at a level of principle, that such considerations (together with the others to which his Honour referred at [317]-[330]) tend against the implication of any such generally expressed term in the first place. However, I am bound by the majority judgment in Barker to find such an implied term does form part of the law of Australian employment contracts at a general level.
129 The final, and also fundamental, problem for Ms Dafallah is the qualification expressly reserved by the majority judgment in Barker 214 FCR 450; [2013] FCAFC 83 at [97] and to which I have referred at [122] above. Jessup J notes that the drawing of a line between the application of the term during the employment relationship and matters inextricably linked to the termination of that relationship may not be easy, or even possible (see his Honour’s reasons at [332]-[334]). However, the majority judgment does draw that line, and in my opinion the claims by Ms Dafallah in the present case fall on the wrong side of it. Her claims are ones which are inextricably linked to the termination of her employment. Unlike in Barker, where the implied term was said to operate in a circumstance requiring the employer to take positive and meaningful steps to assist Mr Barker to be redeployed within the Bank, here Ms Dafallah claims (if one were to attempt to formulate her case on this issue in a more detailed way than was in fact attempted during the proceeding) the implied term operated to impose on the employer a duty to conduct its disciplinary processes in respect of serious concerns about poor performance in particular ways. Those disciplinary processes were, at both a policy and procedural level, and in their application to Ms Dafallah, inextricably linked with the termination of her employment.
130 There also remains, as Melbourne Health submitted, the question whether breach of this implied term sounds in the kind of relief sought by Ms Dafallah: namely, damages and reinstatement. In part, that is because the purpose of the implication of such a term is said to be to bolster the ongoing employment relationship: see Burazin 142 ALR 144 at 154. In Shaw v New South Wales (2012) 219 IR 87; [2012] NSWCA 102 at [103], the New South Wales Court of Appeal referred with approval to the summary of reasons given by Basten JA in Russell 72 NSWLR 559; [2008] NSWCA 217, as to why damages were not available. It said:
Basten JA then referred to three consequences of accepting a claim for damages because of steps taken by an employer leading up to a dismissal. First, the fact that the loss will almost inevitably flow from the termination of employment, rather than the manner in which the decision to terminate was made, means that there will be a sidestepping of the rule in Addis and hence such authoritative support as it has in Australia. Second, such a course is likely to be inconsistent with the statutory remedies for unfair dismissal, a matter of significance in the light of the principle applied by this Court in Paige in the context of a postulated duty of care in tort. Third, the awarding of damages for breach of such an implied term otherwise than in relation to termination of employment creates significant anomalies, for example, by creating a right to recover in the less serious case of suspension of employment but not in the case of dismissal. The following conclusion was then stated:
It follows that, even assuming success in relation to the existence of the implied term and breach thereof, there was no basis for an award in the present case of general damages for distress, humiliation, injury to feelings or loss of “reputation”.
131 In Burazin 142 ALR 144 at 153-154, the Full Court doubted that, given that purpose, it was correct to find that damages were available for breach of the term, and instead the remedy available to the employee would be repudiation of the contract: see also Barker 214 FCR 450; [2013] FCAFC 83 at [157]-[158]; Shaw v New South Wales (2012) 219 IR 87; [2012] NSWCA 102 at [103]-[107]. In the circumstances, that is not a remedy which assists Ms Dafallah. There is no authority to suggest an order in the nature of specific performance directed at the employer to reinstate an applicant has been held to be available in such circumstances, and no argument as to why such relief was available was developed on behalf of Ms Dafallah.
132 In Barker 214 FCR 450; [2013] FCAFC 83, the majority held (at [136]-[138]) that damages should be recoverable for breach of the implied term, at least where the breach is anterior to and independent of, termination of employment, the basis in Barker being one of loss of a chance of alternative employment before his employment was terminated, because he had failed to apply for any other position within the Bank, to be assessed in accordance with established principles. That is not a basis for damages which is available to Ms Dafallah.
133 For those reasons, Ms Dafallah’s claims based on the implied term must fail.
NEGLIGENCE CLAIM
134 Ms Dafallah’s claim in negligence is barely articulated, and was but briefly touched on in written and oral submissions. Her claim is that Melbourne Health owed her a duty to take reasonable care in the way it applied its disciplinary procedures and termination of employment procedures to her. She claims Melbourne Health breached that duty in the manner it applied the procedures between July 2009 and September 2010. As I have observed at [119] above, in her written contentions Ms Dafallah described the alleged breaches of duty in the same way for her contract and tort claims.
135 No authority supporting this cause of action was referred to by Ms Dafallah aside from Commonwealth v Cornwell (2009) 227 CLR 519; [2007] HCA 16, which concerned limitations issues in a negligence claim and seems irrelevant. It is not alleged that Melbourne Health breached its duty of care in respect of workplace health and safety towards Ms Dafallah. Nor is it alleged that the manner in which the disciplinary procedures were applied to her caused her some kind of psychiatric injury, although it is doubtful any duty of care is owed in such circumstances in any event: see Paige 60 NSWLR 371; [2002] NSWCA 235; and cf the very different circumstances in Reeves v New South Wales [2010] NSWSC 611, in respect of serving members of the police force who suffer psychiatric injuries in the course of their duties and in the course of promotion applications within the force.
136 Melbourne Health did not refer to any authorities in respect of their answer to this claim. However, there is no basis in current authority to believe that, even if it were properly pleaded and then developed by argument, supported by adequate evidence (as to which, see my earlier observations about how this proceeding was conducted), that a cause of action arises under the general law: see Paige 60 NSWLR 371; [2002] NSWCA 235; Shaw v New South Wales (2012) 219 IR 87; [2012] NSWCA 102. That is because the kind of duty contended for is incompatible with the law as to the termination of employment (both in contract and as modified by statute) and — in some cases, although probably not this one — incompatible with principles of administrative law.
CONCLUSION
137 Ms Dafallah has established a contravention by Melbourne Health of cl 38 of the Agreement and is entitled to relief in respect of that contravention.
138 Otherwise, her claims should be dismissed.
REMEDY
Penalties
139 In cases where a person (other than an inspector) is prosecuting a claim and succeeds with respect to an order for penalties, it has been said that the “usual order” is that the penalties are paid to that person: see Seymour v Stawell Timber Industries Pty Ltd (1985) 9 FCR 241 at 245-246 per Northrop J; Gibbs v Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216 at 223-224 per Gray J; Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357; [2008] FCAFC 170 at [41]-[46] per Gray J; National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 at [146] per Gray J. Whether such an order is always appropriate was discussed by Finkelstein J in Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 228; [2001] FCA 1364 at [22]-[28], although his Honour’s view that payment of a penalty to an organisation should not be made if it results in a windfall has been the subject of some disagreement: see Finance Sector Union of Australia v Australia and New Zealand Banking Group Ltd [2002] FCA 1035 per Wilcox J. There are references in the last two decisions, and in Gibbs 37 FCR 216, to the origins of the power to direct payment outside consolidated revenue as lying in the ability of “common informers” to bring certain kinds of criminal prosecutions, and the policy consideration of encouraging such informers, or persons with an interest, in upholding the integrity of industrial agreements and assisting to facilitate adherence to their terms.
140 Further, a direction to pay a penalty to a person is not to be seen as compensation for the costs that person has incurred in bringing a proceeding, especially where the statutory scheme exhibits a legislative choice that, as a general rule, costs should not be available: see Gray J in Plancor 171 FCR 357; [2008] FCAFC 170 at [41]-[43].
141 Whether the payment of a penalty should otherwise be viewed as capable of performing a compensatory function if paid to a person nominated by the legislative scheme remains a matter of debate. However, I respectfully agree with the remarks of Greenwood J in McIlwain v Ramsey Food Packaging Pty Ltd (No 4) (2006) 158 IR 181; [2006] FCA 1302 at [108] (endorsed by Branson and Lander JJ in Plancor 171 FCR 357; [2008] FCAFC 170 at [70]):
the imposition of a penalty under the Act is designed fundamentally to serve the public interest in acting as a deterrent to the particular Respondents and others generally from engaging in conduct of the kind the subject of the findings. In circumstances where an order has been made for compensation for both economic loss and a non-economic component concerning the disturbance, dislocation and loss of secure employment suffered by the individuals, there seems to be no good policy reason why the individuals should additionally have the benefit of an order for the payment to them of the penalty.
142 In the circumstances of this case, given that I have decided it is appropriate to order Melbourne Health to pay compensation to Ms Dafallah in respect of the contravention of cl 38, I do not consider it appropriate to impose a penalty payable to her. That is the only penalty order sought by Ms Dafallah.
143 Given the penalty provisions serve a public interest function, I have considered whether orders other than those sought by Ms Dafallah are appropriate. In the particular circumstances of this case, and taking into account that Melbourne Health has had its conduct under the Agreement exposed not only in this proceeding but also in the Commission, where the Commission made some adverse observations about Melbourne Health’s processes and about Mr Milenkovski’s factual mistakes in some of the important correspondence to Ms Dafallah, I consider that a declaration of the contravention suffices in terms of deterrence: Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2007] ATPR 42-140; [2006] FCA 1730 at [6] per Nicholson J. Ms Dafallah sought such a declaration.
144 At trial, counsel for Melbourne Health sough a separate hearing on penalty if the Court found a breach of the Agreement and was considering imposing a penalty. I accepted such a hearing would be appropriate. In the circumstances, since I have decided not to impose a financial penalty on Melbourne Health, there is no need for a separate hearing. The declaration of contravention simply reflects my findings.
Reinstatement
145 The Court has power under s 545(1), read with s 545(2)(c), to order the reinstatement of a person. Ms Dafallah has sought an order for reinstatement. In my opinion, reinstatement would be wholly inappropriate in the current circumstances. The relationship between Melbourne Health and Ms Dafallah has, on the evidence, broken down irretrievably. There is no sense in which Melbourne Health appears to have any confidence in Ms Dafallah’s work performance. Ms Dafallah has clearly been affected by the events at Melbourne Health. She gave no evidence that she wished to return there, despite her reinstatement being sought in the application to this Court. Again, she bears the burden of proving such a remedy is appropriate and there was no evidence at all which could give the Court any basis on which to find that remedy is appropriate.
Compensation
146 Pursuant to s 545 of the FW Act, the Court may make any order it considers appropriate if satisfied that a person has contravened a civil remedy provision. By s 545(2)(b), this includes an order for compensation for loss the person has suffered because of the contravention.
147 The Court has derived no assistance from either party in submissions about the appropriate principles to be applied and, in particular, no assistance from Ms Dafallah’s legal representative about how those principles might be applied to the facts.
148 The language of s 545 is broad, allowing the Court to provide remedies which meet the circumstances of any given contravention, taking into account the range of parties who may have brought proceedings in relation to the contravention, and the actions which might in any given circumstance be required to remedy the contravention, or to ensure it does not occur again. Awarding compensation for loss is but one example and may not be appropriate, depending on what other action has been taken in respect of any losses. Each case will turn on its facts in that sense.
149 Fixing compensation under s 545 is a statutory task, and the Court must not substitute that task with approaches derived from the general law: Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388; [2004] HCA 3 at [44]; Qantas Airways Ltd v Gama (2008) 167 FCR 537; [2008] FCAFC 69 at [94] per French and Jacobson JJ.
150 In my opinion, the following features of s 545(1) and its place in the scheme of the FW Act are relevant.
151 The purpose of identifying obligations in the FW Act as civil remedy provisions, and thus enabling penalties to be imposed for conduct contravening those obligations, is to establish norms of conduct across the activities covered by those provisions — minimum wages, equal remuneration, industrial action, right of entry, the general protections regime, and the requirements of enterprise agreements. Subjecting conduct contravening these provisions to the imposition of civil penalties is intended to serve the aims of deterrence (both specific and general) as part of a legislative aim to reduce or eliminate such conduct.
152 In some circumstances, compensation for loss because of the contravention may relate to loss suffered by more than one employee, or by an employee organisation or an industrial association.
153 The unfair dismissal provisions in the FW Act also provide for compensation to be ordered if the FWC concludes an employee has been unfairly dismissed. The term “compensation” is used in those provisions, although it is clear it is a remedy in lieu of reinstatement: see s 392(1). Section 392(2) sets out a number of considerations which must be taken into account in determining the amount of compensation. They are
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
154 By s 392(5), read with s 392(6), a cap is imposed on the amount of compensation which can be ordered: broadly, set at 26 weeks of remuneration.
155 A contravention of orders made by the FWC relating to unfair dismissal is, by s 405, a civil remedy provision. Otherwise, the provisions relating to unfair dismissal are not, in contrast for example to the general protection provisions, civil remedy provisions.
156 Where the subject matter of the contravention is a breach of an agreement closely connected to the termination of a person’s employment for poor performance, as is the case here, the Court must, in exercising power under s 545(1), be careful not to undermine the operation of the unfair dismissal provisions, and the limits Parliament has placed on them. That is especially so in circumstances where unfair dismissal proceedings have been unsuccessfully pursued, as is the case here. An order for compensation which has such an effect may not, in my opinion, be an “appropriate” order for the purposes of s 545(1).
157 Further, the width of the power conferred by s 545(1) also allows for compensation which may not fully compensate a person for the loss suffered: see Gama (2008) 167 FCR 537; [2008] FCAFC 69 at [94] per French and Jacobson JJ, where their Honours were considering similar statutory compensation provisions under s 46PO(4) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). In my opinion, that approach is available under s 545(1) because, as their Honours pointed out in Gama at [94], an award of compensation is discretionary. In s 545(1), the governing consideration is what the Court considers “appropriate”, and this in my opinion leaves room for a Court to find in a given case that less than full compensation might be appropriate.
158 While by no means operating as a mandatory approach to a discretion such as that conferred by s 545(1), with respect I adopt the remarks of Lee J in Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia — Western Australian Branch (1995) 63 IR 1, considering factors relevant to an award of compensation under s 170EE of the then Industrial Relations Act 1988 (Cth). His Honour said (at 9), that the Court will
have regard to what is reasonable in the circumstances and will look at what would have been likely to occur had the Act not been contravened … The Court will consider the detriment occasioned to the employee by the employer’s contravention of the Act, and the extent to which it is reasonable to compensate the employee for such consequences.
159 One of the principal tasks, if compensation is to be awarded, is to ensure that there is the appropriate causal connection between the contravention and the loss claimed: Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526; [2011] FCA 333 at [423] per Barker J.
160 The Full Court in Burazin 142 ALR 144 at 155 approved this approach. Some of the matters referred to by Lee J are similar to those set out as considerations in s 392(2). Although the power under s 545(1) is separate and independent, in my opinion, since the same statutory concept of compensation is involved, it is appropriate to consider factors similar to those set out in s 392(2).
161 In considering causation, in the circumstances of a clearly fraught employment relationship as was the case between Ms Dafallah and Melbourne Health, it is appropriate in my opinion to consider that the employer would have in any event been entitled to exercise any power it had to bring the employment contract lawfully to an end in a way most beneficial to itself. The likelihood of an employer taking such a step will be fact dependent but, in contractual terms, it has been held to be relevant to the assessment of damages: see Bostik (Australia) Pty Ltd v Gorgevski (1992) 36 FCR 20 at 32. In my opinion, it is a factor which can also be taken into account for the purposes of determining what compensation is appropriate under s 545(1), where compensation is limited to the loss caused by the contravention.
162 The evidence adduced on behalf of Ms Dafallah which could provide an evidentiary foundation for an order for compensation was sparse, to say the least. The trial in this matter took place over 14 months after the application had been filed. There was no application to split the trial as between liability and damages. The trial had been ordered to proceed by way of affidavit, so the parties were afforded every opportunity to prepare in an orderly way whatever evidence they saw fit to present on all issues raised.
163 Instead, the Court received a piecemeal impression of what occurred in the Commission, an irrelevant focus on the FWC proceedings through unsatisfactory evidence, a wholly incomplete account (on both sides) by way of admissible evidence of what occurred during the contentious period prior to the termination of Ms Dafallah’s employment, and almost no evidence about Ms Dafallah’s income during or after the termination of her employment. To that might be added the negligible assistance the Court received on the applicable principles in respect of all the issues the parties sought to have the Court determine in this proceeding.
164 Although Ms Dafallah’s legal representative contended in final submissions that issues of damages should be determined by agreement or at a separate hearing, there is no basis to grant Ms Dafallah such an indulgence, and effectively secure to her an opportunity to make good the gaps in the evidence about her loss. Ms Dafallah’s legal representative expressly sought and was granted leave to adduce further evidence in chief from his client on the basis that her evidence of loss in her affidavit was incorrect. He submitted that Melbourne Health had not been cooperative in agreeing facts relating to loss of income. Whether or not that was the case, the burden remained on Ms Dafallah to prove her loss, as the respondent correctly submitted. Ms Dafallah’s legal representative was told it was a matter for him as to what evidence of loss he adduced on behalf of his client. No pay slips were adduced. No income tax returns were adduced. No documentary evidence at all about Ms Dafallah’s additional employment before or after the termination of her employment with Melbourne Health was adduced. No attempt was made to document any calculations of loss.
165 What follows is all that was available on the evidence for the purposes of determining whether it is appropriate to order an amount of compensation payable to Ms Dafallah in respect of Melbourne Health’s contravention of the Agreement.
166 The parties agreed that Ms Dafallah was working full-time at Melbourne Health when her employment was terminated. In oral evidence, Ms Dafallah said her annual earnings at Melbourne Health were “around $50,000”. She was not challenged in cross examination about this figure, and I take the absence of any challenge as a concession by Melbourne Health that this figure more or less represented her actual annual income while she was employed with it.
167 In oral evidence Ms Dafallah also stated that while working for Melbourne Health she also had a part-time job at Rosanna Views (a nursing home), earning between $35-50,000 per year, on average around $43-44,000. She worked at Rosanna approximately 30 hours per week. Her evidence was that she worked 10-hour shifts at the Royal Melbourne Hospital, often night shifts, and then on the days she was not working at the Royal Melbourne Hospital she worked at Rosanna. She agreed she was working a lot of hours, up to 75 hours per week.
168 She gave some evidence about her belief that she was unsuccessful for a job at Epworth Hospital because the person who assessed her worked at the Royal Melbourne Hospital. Ms Dafallah believed the assessor had heard about her termination of employment at the Royal Melbourne Hospital and that is why she did not get the job at Epworth Hospital.
169 Although Ms Dafallah’s affidavit asserted a loss of more than $100,000, leave was sought to adduce oral evidence on the basis of a concession that figure was inaccurate. As I have observed, that leave was granted but only very general evidence was adduced. Under cross-examination, Ms Dafallah agreed that the effect of her oral evidence was that her loss of earnings was more like $70,000 than $100,000.
170 In terms of her earnings after the termination of her employment in September 2010, Ms Dafallah gave oral evidence that she is working 25-30 hours a week on a part-time basis at the Mercy Hospital (another nursing home) on a lower hourly rate ($19.85), and has been since late December 2011. She gave evidence that this facility was different to the Rosanna one, at which she had continued to work before and after her employment with Melbourne Health. Her evidence was that she started with a few hours at the Mercy and built up to 25-30 hours per week. She was still working there at the time of trial.
171 She also gave evidence that she had gained equivalent hours in her current employment to the hours she used to have at Melbourne Health, by at least “last year” (ie 2012). In answer to the question whether she had “substantially offset” her earnings with Melbourne Health, she replied “Sort of, in the last six months”.
172 When asked by her legal representative in oral evidence to approximate her losses, she replied “$20,000… but more than that”.
173 Ms Dafallah said in her affidavit that she sought compensation for “humiliation and distress”. She gave oral evidence about how upset she became during some of the meetings with Melbourne Health, especially towards the end of her employment. She said in her oral evidence that “I lost so much, not in money but emotionally”.
174 No medical evidence was adduced in respect of any non-economic loss suffered by Ms Dafallah.
175 This is a proceeding in which there has been a substantial failure on behalf of Ms Dafallah to provide a sufficient evidentiary basis for the Court to order compensation. All of her non-judicial review claims involve claims for damages or compensation. It was a substantial plank of her proceeding, yet the evidence was generalised and imprecise. No periods of particular employment are given, no calculations made of the differences between what she was earning at Melbourne Health and what she has earned in the period since September 2010 are available. It is tolerably clear that by the time of trial Ms Dafallah accepted she had no ongoing economic losses.
176 Melbourne Health relied on the decision of Gunton v Richmond-upon-Thames London Borough Council [1981] Ch 448 for a submission that, if Melbourne Health had contravened its own disciplinary procedures or policies and this could sound in damages, the only entitlement would be to damages for the period it would have taken properly to follow the policies before termination of employment. It submitted that here there was in any event a gap of some nine months between the final warning and the events which triggered the termination of her employment and, even if the warnings had been given separately and sequentially, the Court should infer her employment would still have been terminated in September 2010, so that she suffered no economic loss in fact.
177 In my opinion, it is not possible to infer Ms Dafallah’s termination of employment would have occurred at precisely the same time — September 2010 — had the terms of cl 38 of the Agreement been complied with by Melbourne Health as they should have been. If the warnings had been given carefully and sequentially, starting with a verbal warning, I am prepared to infer Ms Dafallah’s performance may have improved at least temporarily. However, I am also prepared to infer that, from her employer’s perspective, her performance issues were recurring. Any improvement, I infer, is likely to have been followed by further lapses. For example, her conduct of falling asleep during breaks seemed to repeat itself. Given her evidence she was working in excess of 75 hours per week that is hardly surprising. Considering the evidence as a whole, I find it is likely Melbourne Health would have received further complaints from other staff about Ms Dafallah’s performance and would have continued its disciplinary processes towards termination of her employment.
178 Therefore the loss which can be said to have been caused by Melbourne Health’s contravention of the Agreement should be measured only in the loss of a few months’ employment after 1 September 2010, at the highest. The period can only be ascertained approximately, by reference to how much longer the warning process, properly adhered to, would have taken. In my opinion, give the chronology of events that would be no more than three months. I find that it was the giving of the final warning to Ms Dafallah in October 2009 which then caused her performance to remain satisfactory for some time, before there were further complaints in July 2010. Therefore, proper adherence to the process required by cl 38 is likely to have taken till approximately January 2010 instead of October 2009. I find there is then likely to have been a substantial and similar period of improved performance by Ms Dafallah. The subject matter of the complaints — falling asleep, not responding to her pager, not undertaking tasks such as collecting platelets — were repeated complaints. I find they are likely to have arisen again, and likely to have done so approximately nine months after the final warning, as the evidence established. On this basis, I find the breach of the Agreement can be said to have caused a loss for Ms Dafallah of no more than three months’ employment. Doing the best I can with the evidence as it is about her income from her employment at Melbourne Health, three months’ employment represents approximately $12,500. That is the amount I propose to award by way of compensation for economic loss.
179 As to compensation for non-economic loss, I find that the process to which Ms Dafallah was subjected did cause her some tangible emotional upset. Clearly the termination of her employment was the greater cause, and that is not a matter which, on the findings I have made, she should be compensated for. However there is evidence about her state of upset at how she was treated during the warning process, and I accept her evidence on this issue as well. Given there is no evidence of lasting psychological damage, nor even of damage sufficient to warrant psychological treatment during 2009-2010 or thereafter, in my opinion a modest award is appropriate. I fix compensation for non-economic loss at $3000.
180 No interest on any compensation payments was sought in the originating application, and accordingly I do not propose to order interest.
Other relief
181 As I have indicated at [143] above, I consider it appropriate to grant a declaration in respect of Melbourne Health’s contravention of cl 38 of the Agreement.
CONCLUSION AND FURTHER SUBMISSIONS
182 The orders which I propose to make to reflect these reasons for judgment are as follows:
1. Declare that, by failing to follow the process set out in cl 38 of the Health Services Union of Australia — Health and Allied Services, Administrative Officers — Victorian Public Sector — Multi Employer Certified Agreement 2006-2009 in respect of the sequence of verbal and written warnings to be given to the applicant prior to any decision to terminate the applicant’s employment, the second respondent has contravened that Agreement.
2. Order pursuant to s 545(1) of the Fair Work Act 2009 (Cth), that the second respondent pay the applicant compensation in the sum of $12,500 representing her economic loss because of the contravention of cl 38 of the Health Services Union of Australia — Health and Allied Services, Administrative Officers — Victorian Public Sector — Multi Employer Certified Agreement 2006-2009.
3. Order pursuant to s 545(1) of the Fair Work Act 2009 (Cth), that the second respondent pay the applicant compensation in the sum of $3,000 representing her non-economic loss because of the contravention of cl 38 of the Health Services Union of Australia — Health and Allied Services, Administrative Officers — Victorian Public Sector — Multi Employer Certified Agreement 2006-2009.
183 The somewhat unusual circumstances of the state of the evidence in this case render it appropriate, in my opinion, to give the parties an opportunity to make submissions on the form of orders in light of the Court’s reasons. The parties will have seven days from the date of the publication of these reasons to make such submissions as they see fit, limited to five pages of written submissions on the form of orders which are appropriate to reflect the Court’s findings and reasons for judgment.
184 In Linfox [2013] FCAFC 157 at [92], the Full Court observed that a proceeding invoking this Court’s jurisdiction under s 39B of the Judiciary Act could nevertheless be a proceeding within s 570 of the FW Act for the purposes of the particular restrictions on the award of costs. However, there remains a discretion to order costs if the Court is satisfied of any of the matters set out in s 570(2) of the FW Act.
185 The parties should also be given an opportunity to address the question of costs in light of these reasons for judgment. Leave will be granted to the parties to file any written submissions on costs within seven days of the date of publication of these reasons for judgment, limited to three pages.
| I certify that the preceding one hundred and eighty-five (185) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer. |
Associate:
