FEDERAL COURT OF AUSTRALIA

Arnett-Somerville v Monash Health [2016] FCA 1451

ORDERS

THE COURT ORDERS THAT:

1.    The Application be dismissed.

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

REASONS FOR JUDGMENT

JESSUP J:

1    In this proceeding, the applicant, Kelly Maree Arnett-Somerville, alleges that adverse action, within the meaning of s 342 of the Fair Work Act 2009 (Cth) (“the FW Act”), was taken against her by the respondent, Monash Health, for reasons which would make that action unlawful under ss 340, 346 and, in one respect, 351 of the Act.

2    The applicant is a registered nurse employed, on a part-time basis, by the respondent in the emergency department of the Dandenong Hospital. She is a member of the Australian Nursing and Midwifery Federation (“the ANMF”), an industrial association within the meaning of the FW Act. She is an elected ANMF job representative. The Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2012-2016 (“the enterprise agreement”), an enterprise agreement approved pursuant to the provisions of Pt 2-4 of the FW Act, applies to the employment of the applicant. In circumstances which will appear, on 7 July 2014 the applicant commenced a period of leave on account of indisposition, and she has not returned to work since then.

THE FACTS, AND THE APPLICANT’S CASE, IN OUTLINE

3    The applicant was a shift worker who worked the times set out in the rosters posted by the respondent. On 12 March 2013, she wrote by email to the Nursing Unit Manager (“the NUM”) of the emergency department, Joanne Morey, in the following terms:

I just wanted to check with you about the roster and an Issue I have had. It has only just caught up with me this past weekend as I had the weekend off and was able to spend it with Dan and the kids. I realised that I seem to never have days off with them any more. I have looked back and from the weekend before Christmas to the end of the current roster. In April I am rostered on 15 out of 18 weekends with most of those being the whole weekend and several being long weekends with the extra day also rostered on. I wondered what is the normal amount that people do? I think I am just a bit low at the moment with missing my mum and realised I am always off to work as Dan and the kids head off to family things or days out – I know that is the downside of nursing!!! I am happy to do every 2nd weekend or even 3 out of 4 but runs of 8 in a row that I had from dec – feb are full on!! I don’t request any on the roster request unless I really need them off, should I just be requesting them??

(errors in original)

It is alleged by the applicant, and admitted by the respondent, that, in sending this email, the applicant was exercising a workplace right within the meaning of s 340(1)(a)(ii) of the FW Act.

4    By email dated 18 May 2013, Ms Morey announced a trial of a new shift – consisting of one registered nurse position, as I understand it – from 6:00 pm to 2:30 am. The role would be to liaise with the Nurse in Charge (“the NIC”) regarding an available emergency department cubicle for any patient who arrived by ambulance, and to receive the handover of the patient from ambulance staff in that cubicle. Ms Morey said that “the focus must remain on the unloading and releasing of ambulances back into the community”. Thus this initiative, which was in part funded by the government, came to be referred to as the “ambulance prioritisation” policy, notwithstanding that that term had not been used in Ms Morey’s email. Some of the nurses were concerned that the result could be that some patients received priority triaging for no better reason than that they had arrived by ambulance, at the expense, possibly, of patients in the waiting room whose conditions were of greater acuity.

5    At some time subsequent to this email – the applicant was not able to be more specific than to say May or June 2013 – the applicant spoke to the NIC for the shift on which she was working, Nikki Mayo, and asked whether, if a patient in the waiting room was triaged at the same category as a patient arriving by ambulance, the latter would have priority. Ms Mayo responded in the affirmative. The applicant told Ms Mayo of her concern that, once it was known that patients arriving by ambulance would have priority, the emergency department would experience an increase in the numbers of patients arriving by that means. She said that it was “a big worry”.

6    The respondent accepted that, in having this exchange with Ms Mayo, the applicant was making a complaint within the meaning of s 341(1)(c) of the FW Act, and thereby exercising a workplace right within the meaning of s 340(1)(a)(ii) of that Act. It is not obvious to me how this would come within s 341(1)(c), but, in the light of the respondent’s concession, I accept that it did.

7    The applicant also alleged that the exchange with Ms Mayo amounted to industrial activity within the meaning of s 347(b) of the FW Act. This allegation was not developed in submissions made on the applicant’s behalf. Of itself, there is nothing in what the applicant said to Ms Mayo that would attract the operation of the section. It is established, at a very high level, that the matter of ambulance prioritisation was discussed at nurses’ meetings from time to time, and that the applicant, amongst others, had her say. There is also evidence of later conduct on the part of the applicant on 18 November 2013 that was said to be related, in part, to ambulances, and I shall deal with that in its own context below. Otherwise, I reject the allegation that the applicant engaged in industrial activity in relation to the ambulance prioritisation policy.

8    At 6:08 pm on 22 May 2013, the applicant wrote by email to Ms Morey, in the following terms:

I just wanted to let you know about the disaster that has been the afternoon shift so far today. I am CCR, resus was all good so at around 330 I went to help Bs but Wendy asked me to help Cs as Lucy was struggling. I went to Lucy who was to have finished at 330. She said she was battling alone (not sure where her agency nurse staff member was and I didn’t spot her for some time). I took a very brief handover from Lucy as she stated that Chantelle was at ALS training, Geetha the other am staff member had gone to OVA training and therefore didn’t come back onto the floor. All the Cs patients were overdue for obs as Lucy had been slammed with admits and plenty of things she had to do. I started doing obs, the first pt was ACS post fall had BF 210/syst and incont urine in the bed, next door an ACS with ETOH ++++ abusive yelling man had urinated all over the floor. I went to A12 a pt with Hb 75 who Hadn’t had obs for 2/24, was to have bloods, but as per Lucy she couldn’t even get to get them or start them due to no assistance on the floor, apparently the reg rover was covering ds as bank staff starting at 3 and other staff doing ALS also. The patient in A12 we were then advised was ready for ward. I did quick set of obs pt BP 90/syst manually – asymptomatic, nil further bleeds, dr advised. So he was unable to go to the ward at that time. I advised NIC as I was still by myself until about 345 when Chantelle came back from ALS. Lucy also said that she hadn’t had a break. I am still helping in Cs. They are still not caught up with the agency girl very very slow, Chantelle unable to cannulate and taking pts collared to radiology, and with the urinating man taking out his IVB spraying the entire cubicle walls floors furniture with Hep c infected blood and then abusing me after I cleaned it all taking a swing at my arm and calling me “a bloody bitch”

It is only 6pm!!! I am really sorry as this seems like a whinge but this is unsafe as the patients have not adequate staff or appropriate staffing looking after them whilst OVA and ALS was occurring. The staff who then have come back onto the floor did not receive an adequate handover, and patients have deteriorated as a result of this situation. I have told NIC Nikki and she said to message you.

(errors in original)

It is alleged by the applicant, and admitted by the respondent, that, in sending this email, the applicant was exercising a workplace right within the meaning of s 340(1)(a)(ii) of the FW Act.

9    The applicant also alleged that her email to Ms Morey on 22 May 2013 amounted to industrial activity within the meaning of s 347(b) of the FW Act. There is nothing in the email itself that would attract the provisions of that paragraph, but counsel for the applicant pointed to a resolution of a meeting of members of the ANMF employed by the respondent held on 22 April 2013, the main concern of which was with disciplinary action which had been taken by the respondent against a colleague of theirs in respect of an incident on 29 March 2013. In part, that resolution dealt also with the more general question of occupational violence and aggression in the emergency department, and with measures that were demanded of the respondent in that regard. A copy of the resolution was sent to the Director of Nursing, Karlene Willcocks, on the same day. Although it was not made explicit in the submissions advanced on behalf of the applicant, I suppose that she relied on subpara (v) of s 347(b) in her contention that her email of 22 May 2013 amounted to engaging in industrial action. I do not accept that contention. Although, in some small undifferentiated part, the email did deal with an instance of what might be characterised as occupational violence and aggression, there was no suggestion that the applicant was representing or advancing the views of the ANMF, as distinct from drawing Ms Morey’s attention to an ad hoc, albeit serious, staffing issue. Neither, of course, did the email invoke, or refer to, the members’ resolution of 22 April 2013.

10    On 8 August 2013, Ms Morey met with the senior nurses – Associate Nurse Unit Managers (“ANUMs”), Clinical Nurse Specialists (“CNSs”) and Clinical Nurse Educators (“CNEs) – in the emergency department. According to Ms Morey (whose evidence on this subject was not contradicted), the purpose of the meeting was to discuss the operational management of the emergency department. They had noticed that there was an ongoing trend for the triage staff to allocate patients into a waiting room location instead of into an emergency department cubicle, even if there were one empty and available at the time. The philosophy that Dr Neil Goldie, the Director of Emergency Medicine at the hospital, and Ms Morey wanted to endorse was that all patients should be triaged into a clinical area, where they could receive clinical care from the staff. At the meeting, Ms Morey asked the nurses present to ensure that, when there were empty cubicles in the department, they would be used for patients who were waiting in the waiting room. This led to a discussion amongst the nurses at the meeting, in the context of which, it seems, the questions whether some patients might not be in need of nursing care, and whether it would be appropriate to require them to remain in the waiting room, were raised. At some point in the meeting, Dr Goldie entered the room. Ms Morey informed him of the subject that had been under discussion. He reiterated his position that patients in the waiting room should, where possible, be moved from there into any empty cubicles that were available. Some of the nurses present again raised the matter of whether there would be some patients who did not need to have nursing care. In response, Dr Goldie said, “If you believe the patients can wait in the waiting room without clinical care, then you’re punishing patients.” That comment was not well received by at least some of the nurses present – under cross-examination Ms Morey accepted that about three of them made it clear, albeit not in terms, that they took offence – but Dr Goldie explained to them that, if there were an area in which patients might be provided care, they should not be denied that care.

11    The meeting on 8 August 2013 is relevant not for its own sake, but for what followed some weeks later. On 5 September 2013, at the regular Thursday meeting of the emergency department nursing staff, the applicant challenged Dr Goldie about the comment which he had made at the earlier meeting. It was his response to that challenge that, on the applicant’s allegations, constituted the first instance of adverse action taken against her. Both the terms of that response and the manner of its delivery are controversial in this proceeding. In the applicant’s case, her challenge to Dr Goldie amounted to the exercise of a workplace right, and engaging in industrial activity, on her part. She alleges that Dr Goldie’s response constituted adverse action taken against her within the meaning of item 1 in the table in s 342(1) of the FW Act. I shall return to these matters in a later section of these reasons.

12    It was also at about this time – the applicant was able say no more than that she thought it was September 2013 – that the applicant had a conversation with Tiffany Chalkley, one of the ANUMs at the emergency department, who was the NIC on the relevant shift. The conversation related to the permissibility of recording the time at which a patient was removed from the emergency department to his ward not as the actual time of removal, but about 30 minutes previously. It was Ms Chalkley’s manner of making her point in this conversation that, on the applicant’s allegations, amounted to adverse taken action against her within the meaning of item 1 in the table in s 342(1) of the FW Act. I shall return to this conversation in a later section of these reasons.

13    On 14 October 2013, the respondent commenced the implementation of a new “model of care” for the emergency department. According to a memorandum from Ms Willcocks of that date, the new model was based on the following principles:

•    No patient waits

•    Clear accountability and governance

•    Geographical based, multidisciplinary teams

•    Alternate patient allocations to teams

•    Early senior decision making

14    On 23 October 2013, the applicant sent an email to Nicole Smith, the relevant organiser for the ANMF, drawing attention to workload and related issues that had arisen from the implementation of the new model of care. On the same day, Ms Smith responded to the applicant and raised a number of queries, one of which was whether there was “an issue log book”. On 25 October 2013, the applicant responded that there was no such log book of which she was aware.

15    Also on 25 October 2013, Ms Morey sent an email to all nursing staff on the subject of feedback about the new model of care. While commenting positively upon the improvements in performance which the new model had brought, Ms Morey said that it was “important to hear feedback, as we cannot address what we are not aware of”. She asked that feedback be addressed to herself, Dr Goldie or Ms Willcocks.

16    On 30 October 2013, the applicant sent an email to Ms Smith in the following terms:

I’ve been back at work for two shifts after a week off sick and having overwhelming requests for help and complaints from members concerned over issues with the new [model of care]. There is no log book for problems to be dealt with and where I have been encouraging people to RiskMan issues there has been feedback that people are being told not to do that. The feedback from management had been to say that all is well and that everyone is really finding the [model of care] works. That is not the vibe from nursing staff AT ALL!!!

I think another meeting would be well attended!

According to Ms Morey, “RiskMan” was a Victorian government database on which “incidents” of any kind were reported (examples being clinical incidents in which patients were harmed, “near misses”, occupational health and safety incidents and occupational violence and aggression incidents).

17    On 31 October 2013, a meeting of nurses employed by the respondent (not confined, it seems, to the emergency department) passed a 13-part resolution which was critical of the respondent in a number of areas and called for the respondent to take various actions, including to confirm that management would meet with representatives of the ANMF to discuss the matters raised. On the following day, 1 November 2013, a copy of this email was sent to Ms Willcocks by Ms Smith.

18    On 6 November 2013, Ms Smith emailed the applicant enquiring as to the response which she (the applicant) had had to the resolution of 31 October, and stating that she was attempting to organise a further meeting of members the following week. The applicant’s email in reply, sent on the same day, included the following passage:

I didn’t have any issues after the meeting apart from the fact that it was announced at all the handovers that people need to speak to either Leslie or Jo if they have any issues and not discuss issues with the anf job reps first. As most people will not approach Cathy or Leslie with issues as they know the issue and their name will go directly back to management this had angered a lot of people. I have continued with my mantra of risk man risk man risk man!!! Moral [sic] is very low to say the least but I continue to encourage people to bring up issues with Jo. The feedback is that people feel powerless and that the propaganda of everything is going well is making everyone feel that there is no point in raising issues as they are ignored.

Of the people mentioned in this email, “Jo” was Ms Morey, and “Leslie” and “Cathy” were Leslie Graham and Cathy Tran, the other two ANMF job representatives for the emergency department.

19    On 7 November 2013, Dr Goldie, Ms Morey and Ms Willcocks sent an email to the nursing staff in the emergency department attaching what was, by then, the third instalment of “frequently asked questions” with respect to the new model of care. The email included the following passage:

Please continue to feedback to us either via the comments box, any or all of our emails or in person. We will continue to hold regular staff forums also.

Please note that RiskMan should not be used for feedback, it is specifically for incidents or “near misses”.

20    On 11 November 2013, Ms Willcocks replied to Ms Smith’s letter of 1 November 2013. Amongst other things, she said that Ms Smith’s letter contained “a number of serious allegations, which are general in nature, unsubstantiated, lacking in specific detail and most concerning, untrue.” She said that the approach taken by Ms Smith was “very unhelpful – and [had] the potential to cause anxiety and alarm amongst Dandenong Hospital staff, patients, their families and the community.” She proposed holding formal consultation meetings with representatives of the staff and the ANMF on 19 November 2013 and 9 December 2013. In Ms Smith’s response of 12 November 2013, she took issue with much of what Ms Willcocks had said in her letter, but agreed to a consultative meeting on 19 November 2013.

21    It was also on 11 November 2013 that Ms Smith circulated a notice calling a meeting of ANMF members in the emergency department, to be held on 15 November 2013. The purpose of the meeting was “to discuss industrial and professional issues”. About 15 individuals attended the meeting on 15 November, not including Ms Graham or Ms Tran. Ms Smith related to those present how other units with whom she had met with since the meeting on 31 October were dealing with their concerns and raising their grievances to management. The ANMF members from the emergency department decided (in Ms Smith’s words in her evidence) “to collate their concerns in a log book.” Being the only job representative present, it was left to the applicant to organise such a log book. She did so, and it is accepted by the respondent that she was thereby exercising a workplace right within the meaning of s 340(1)(a)(ii), and was engaging in industrial activity within the meaning of s 347(b), of the FW Act. The applicant introduced the log book into the workplace on 18 November 2013, and, in the applicant’s case in this proceeding, it was Ms Morey’s alleged reaction that amounted to adverse action against her. I shall return to this matter in a later section of these reasons.

22    The nurses at the meeting on 15 November 2013 also discussed the possibility of raising a dispute or grievance under the relevant provisions of the enterprise agreement. As Ms Smith pointed out to them, it was necessary, pursuant to cl 11.4(a) of the agreement, for the dispute or grievance first to be discussed with the immediate supervisor of the aggrieved employees. Following the example of the Day Treatment Centre, the nurses decided to express their grievances in a letter to Ms Morey, to which they, and any other interested nurses, would append their names. Again, as the only job representative who was present, it fell to the applicant to prepare such a letter. Over the next fortnight or so, she did so, and it is accepted by the respondent that she was thereby exercising a workplace right within the meaning of s 340(1)(a)(ii), and was engaging in industrial activity within the meaning of s 347(b), of the FW Act.

23    By Friday 29 November 2013, the applicant had completed her task of drafting the proposed grievance letter. On that day, she sent a Facebook message to “particular nurses within the department” (as she put it in her evidence). The message was as follows:

Hi guys I have something to discuss with people so if u r on over the weekend could u some see me at some stage. I’m on early Tomm late sun early mon. Please don’t discuss with people that I have messaged u. If u r dying of curiosity message me on FB. It’s nothing exciting I’m afraid but just need discretion so I am only messaging people on here who I trust 100%.

(errors in original)

The applicant described this as “a private message to a number of nurses”, about 20 she estimated. They did not include Ms Graham or Ms Tran. The proposed grievance letter was the reason for the applicant’s contact request in the message.

24    Over the weekend which followed, and on the Monday, the applicant collected signatures for the grievance letter. By the time she sent the letter, as an attachment to an email, to Ms Morey at 5:21 pm on Monday 2 December 2013, there were about 70 signatories, of whom about 55 were nurses. The email was copied to Ms Chalkley (who was at the time, as it happened, acting NUM in the absence of Ms Morey on leave), Ms Willcocks, Ashley Wheeler (the Associate Director of Nursing), Cheyne Chalmers (the Executive Director of Nursing) and two human resources staff, Ian Heycox and Tim Nagle.

25    In the grievance letter, which is set out in the next paragraph below, there is reference to something called “Symphony”. That was an electronic system in the emergency department to which all staff had access. Ms Morey described it as follows:

Symphony is … an electronic information management system. …[I]t’s an electronic database where we record the patient’s arrival and attendance and record the clinical information of the patient. … [T]he medical staff and the nursing staff would record their clinical notes in that system. It also gives us the ability to make certain requests of units that sit outside of the emergency department, and one of those examples would be when we wanted to request an inpatient bed, we would electronically do that, and people sitting remotely could see our system and understand that there was something for them to action.

26    The grievance letter was in the following terms:

We the undersigned staff are writing to you in order to highlight a number of areas of concern to nursing and other allied emergency staff occurring within the emergency department at present. Staff have identified several areas of significant concern which they believe are directly impacting upon patient care, confidentiality and safety, are affecting the physical environment of the department leading to increased occupational risk and infection control issues and are increasing nursing professional risks which have a correlatory affect [sic] on staff well being.

Patient Care Confidentiality and Safety

•    It has been detailed to staff in nursing meetings (as documented in nursing meeting minutes) that there has been an increase in medication errors by nursing staff recently in E.D. Nursing staff believe that the increase in errors are a direct result of the increased workload being experienced by the nursing staff at present. Further, inexperienced staff are taking on care of acutely unwell patients, without adequate education and supervision, which we believe increases the likelihood of errors being made.

•    It was identified prior to the introduction of the new model of care that skill mix would be vital to the team approach. Staff have identified serious concerns regarding poor skill mix with staff of ‘B2’ level or less being placed in the team leader role, often with bank / agency / junior staff. Staff believe poor skill mix is directly impacting on the capacity of staff to provide appropriate, timely nursing care and that this is further exacerbated by the 3pm start / 1pm finish for covering staff, which often is not notified to staff prior to these times.

•    Staff have identified that with the need for an ALS trained nurse to transfer cardiac monitored patients to the ward or radiology, it is becoming common for the ‘team leader’ to leave other monitored or acutely unwell patients in the care of inexperienced nonALS trained staff, sometimes for considerable periods of time, especially on nights and weekends. Staff are acutely concerned that skill mix and workload may lead to deteriorating patients not receiving adequate assessments or interventions. Nursing staff assert that, consistent with the NMBA Code of Professional Conduct statement 1 “nurses reasonably and in good faith advise their immediate supervisors of their scope of practice including any limitations” and “when an aspect of care is delegated, nurses ensure the delegation does not compromise the safety or quality of care ....” (AHPRA). Staff feel unsupported by the NIC / NUM when they have brought such issues to their attention on a shift-by-shift basis, and previously as a collective in nursing MOC forums.

•    Nursing staff hold serious concerns regarding the movement of unstable or inappropriate patients to the SSU. As this area is often staffed by more junior staff or bank/agency staff it is often a poor skill mix of staff caring for patients requiring more frequent observations or more complex nursing interventions, contrary to scientific evidence on the impact of staffing levels and skill mix on patient care. Staff feel the level of acuity has increased significantly, along with the introduction of telemetry patients into the SSU, without adequate education, supervision and staffing. This is demonstrated by ENs being allocated cardiac telemetry patients, asking the SSU team leader to “silence the monitor alarm” that had been alarming all shift found to be alarming for ‘VT’, luckily in this case caused by artifact. This EN stated that the alarm had been “going off” all morning, showing a failure in the role of the geographically distant and otherwise busy NIC in ED as the ‘monitoring’ nurse.

•    Nursing staff continue to hold grave concerns regarding the offloading of patients, including active chest pain and collared patients to non-nursed areas of the department. Staff believe that this is an unsafe practice and is in contradiction of OHS obligations and safe nursing care which require the availability of adequate suction, oxygen, and emergency assist buzzers/call bells for patient areas, as well as appropriate nursing supervision. The practice of having the Ambulance Victoria offload nurse take ambulance handover of a patient in a non-nursed area, then being required to take patients to the ward or attend other duties, is we believe a significant risk to patient safety.

•    Staff are concerned over their ability to adequately maintain patient confidentiality when instructed to use the white boards in the patient cubicles and in general thoroughfare areas to detail patient conditions and treatments. Staff have noted information on boards in cubicles that pertained to previous patients that had been moved without nursing staff being aware or being available to delete information from boards in respect to those transferred or discharged patients.

Physical environment, increased occupational health and safety risk and infection control issues

•    Staff are concerned that shortcuts in manual handling are occurring as a consequence of excessive staff workloads and high patient turnover that may lead to increased risk of injury to staff.

•    The placement of patients on trolleys outside assigned cubicles (whilst waiting for beds to become available onwards) is placing patients at risk as they do not have adequate safety equipment immediately available. So to, [sic] the parking of trolleys in general access areas e.g. in front of NIC desk, causes a hazard particularly in the case of fire where areas of access / egress are partially blocked.

•    Staff are concerned regarding the removal of patients from the Symphony computer system prior to their actual discharge from ED. In many circumstances this has been for a considerable time period of greater than 30 minutes up to an hour. This is happening on a daily basis and nursing staff believe that in the event of an emergency they will be unable to properly identify patient’s locations due to this practice. The same issue arises with relocating patients from SSU to ED for procedures without the appropriate tracking of patient movement on Symphony. For example, a patient in SS7 moved to A1 for procedural sedation and DCR was in resus for 45 minutes, and nursing staff were directed not to relocate patient from SSU on Symphony.

•    Staff note with concern that previously maintained emergency equipment in monitored areas in [sic] now going unchecked as no role is allocated the responsibility to maintain this equipment. For example the acute crash cart trolley had not had daily checks performed for 8 days. Defibrillation machines have been left unchecked for 2 days when they should be checked per shift.

•    Staff hold serious concerns regarding the increased risk of inadequate infection control resulting from the rapid turnover of patients in and out of cubicles without appropriate cleaning measures between patients. New patients are often being sent to cubicles not yet vacated, with patients removed from Symphony prior to leaving the department. This leads to a number of patients, visitors and staff in and around cubicles causing crowding and leading to cubicles being inadequately cleaned of bodily fluid spills, used meal trays and other rubbish.

•    Consistent with the ANF fatigue prevention policy, staff would like to draw management’s attention to the frequency with which staff are being requested to and are carrying out double shifts. Management have also detailed the high level of sick leave and attrition within the department at present, which staff believe is directly attributable to the mental and physical demands being placed upon staff at present. Staff also report ongoing issues with inability to take proper meal breaks and staying after shifts on regular basis in order to assist colleagues with the high workload. These issues present a real and immediate risk to patient care and safety and the health and safety of staff.

Professional and Occupational Risk and Staff Wellbeing

•    Junior and inexperienced nursing staff feel unsupported within the ED. Due to high patient turnover and untenable workloads senior nurses are unable to provide ongoing assistance and education to new and inexperienced staff on the floor. New staff have reported poor orientation to ED policy and procedures and Symphony, and graduate nurses were required to take full patient loads on their first shift. Nurses believe the current environment is not conducive to the nurses being able to comply with 4.3 of The National Competency Standards for Registered Nurses that nurses “should participate... in teaching others including students of nursing.... and inexperienced nurses”[.]

•    Staff are concerned by the relocation of ED nursing staff during shifts in order to cover shortfalls in nursing numbers on other wards. Further, when ED staff have requested that the staff member be returned due to the admission of high acuity patients into the resus area, this request was refused. We believe this to be contrary to the 2011/12 Nursing Public EBA which states “no staff should be redeployed during a shift”[.]

•    Nursing staff hold the highest degree of concern regarding the direction of NIC and senior management to ‘back-date’ discharge times on the Symphony system in order to bring the patient length-of-stay under 4 hours, not reflecting the actual length-of-stay or contemporaneous treatment of the patient within the department. Staff deplore the intimidatory methods employed by some senior staff and management towards staff who advocate for their patients to remain in ED when they believe the patient is unstable and not suitable for ward transfers, or refuse to comply with the aforementioned directives to ‘back- date’ discharge times. Nursing staff are also aware of intimidation of staff who refuse to admit patients to non nursed areas due to their real concern for patient safety and believe that the inference that the issue lies with the nurse and their nursing capacity is unprofessional and does not lend itself to an atmosphere where nursing staff may identify areas of unsafe practice without fear of recrimination. We believe these behaviors [sic] are also in direct contradiction of the Monash Health iCARE values to show respect and to value staff integrity and are therefore not to be tolerated.

•    Skill mix issues have been identified that lead to bank/agency or more inexperienced nurses being allocated to areas caring for patients of high acuity, including step-down resus patients or cardiac monitored patients. Nursing staff who have raised their concerns regarding their own scope of practice, relating to their knowledge and level of experience, have felt unsupported and ignored in their concern. Nurses believe the current model of care does not support the gradual progression associated with adequate training, education and experience, which lends itself to an increased professional risk to staff and care risk to patient.

•    Nursing staff have serious concerns over management questioning the appropriateness of RISKMAN reports entered by staff. Nursing staff assert their right and responsibility to complete appropriate incident and risk documentation as they deem warranted without fear of repercussion or persecution.

•    Staff have concerns regarding the ongoing video surveillance of staff on the floor by management. Staff believe they are entitled to perform their duties without undue surveillance. Staff are aware of ongoing surveillance by senior management that is not in keeping with risk management or security, for example the NIC being called by the DON to tell a nurse to stop eating at the desk and “get back to work”. Staff hold concerns at the long working hours of some senior management, including time spent on this invasive oversight of staff, which may lead to an increased health and safety risk for the staff involved.

Possible Solutions

•    Admissions into non-staffed areas of ED not to occur

•    Monash Health to take immediate steps to ensure compliance with accurate data entry into Symphony

•    Contact Worksafe Victoria to review standards and current practices within Dandenong Emergency Department

•    Conduct OHS audit and assessments in order to fully ascertain OHS hazards

•    Conduct as a matter of urgency a department wide review incorporating all providers of care and services in order to re orientate policy and procedures to the provision of exemplary patient care and medical management rather than managerial and performance based priorities and targets

•    Request a full infection control audit of current emergency department practices

We the undersigned staff believe:

1.    that current policy and practice is compromising nurses by placing them in positions which undermine their ability to comply with the Nursing Codes of Professional Conduct: “Nurses (must) practice in a safe and competent manner”.

2.    that when staff notify management or senior staff of issues of concern such as those documented in this letter that we should be able to do so in good faith without fear of intimidation or repercussion.

3.    that as caring staff at Dandenong Emergency Department we hold our patients safety and care as our highest priority and will always strive to better their health outcomes.

4.    that we will continue to advocate for our patients and colleagues in order to provide a safe, caring and productive environment within the department.

We would appreciate your written response to the concerns raised herein within seven days of receipt of this letter being the 9th Dec, 2013. In compliance with the grievance process detailed in the Nurses And Midwives (Victorian Public Health Sector) Enterprise Agreement 2012-2016, assistance will be sought if matters are not fully addressed or agreed to be addressed expeditiously or at any time the department requires said assistance.

It is accepted by the respondent that, in sending this letter, the applicant was exercising a workplace right within the meaning of s 340(1)(a)(ii), and engaging in industrial activity within the meaning of s 347(b), of the FW Act.

27    The applicant alleges that, from the time she sent the grievance letter to Ms Morey, each of Ms Morey, Tanya Moseby (a CNE in the emergency department) and Ms Chalkley –

(a)    changed the way she treated the applicant;

(b)    treated the applicant in a hostile manner;

(c)    refused to address the applicant directly;

(d)    spoke to the applicant in a demeaning way; and

(e)    spoke about the applicant in a demeaning way.

The applicant alleges that the respondent thereby engaged in adverse action against her within the meaning of s 342(1) of the FW Act. I shall return to these allegations, which are denied, in a later section of these reasons.

28    While it was accepted by the parties that the grievance letter amounted to a grievance under cl 11 of the enterprise agreement, no attention was given to the matter of how the subsequent course of the respondent's handling of the grievance lined up with the requirements of that clause. Clause 11.6 provided as follows:

(a)    The parties bound by the agreement acknowledge that disputes of a collective character concerning more than one Employee may be dealt with more expeditiously by an early reference to the Tribunal.

(b)    No dispute of a collective character may be referred to the Tribunal directly unless there has been a genuine attempt to resolve the dispute at the workplace level prior to it being referred to the Tribunal.

The "Tribunal" was Fair Work Australia.

29    On any view, the respondent and the signatories to the letter made a genuine attempt to resolve their dispute, but the whole process was overshadowed by a substantial cloud. Although the grievance letter raised issues of workload and the effective discharge of nurses' professional responsibilities, it also, to a substantial extent, related to the operation of, and to the systems used by, the emergency department. But the factual basis of the grievances expressed in the letter was highly contentious. Management of the department, and, it would seem, a very large number of the nurses themselves (including the other two ANMF job representatives) did not accept the correctness of what was alleged. Not only that: as is apparent from the applicant’s Facebook message of 29 November 2013 mentioned at para 23 above, those who were inside the tent apropos the preparation of the letter did not include anyone who might have had a contrary view. There was nothing wrong with that in itself, of course, but the tenor of the letter was that the grievance was broadly-based, and there were many nurses who would never have associated themselves with what the applicant said in the letter. And the allegations were most serious ones. So, instead of operating as a process for the resolution of grievances in a conventional industrial relations sense, the letter became a substantive source of disputation and, it must be said, of distress, in its own right. As became clear, this disputation existed not along union-management, nor even workforce-management, lines, but as between different members of the workforce itself.

30    Returning to the narrative, Ms Morey returned from leave on 9 December 2013. On 10 December, she sent an email to each of the signatories to the grievance letter encouraging them to attend a “feedback session” at 2:00 pm the following day. In the evidence, this session, which was attended by the Chief Operating Officer, Siva Sivarajah, was described as one of a number of “open forums” at which the matters referred to in the letter were discussed. The only useful evidence as to what transpired at this meeting on 11 December 2013 was given by the applicant and Ms Morey, and there was such a disparity as between the two accounts as to give the appearance that they were talking of two different occasions – as well they might have been, since there were, as mentioned, a number of such meetings at about this time. To the extent that any findings need to be made about the meeting, I shall return to them later.

31    By email sent to all staff on 13 December 2013, Shelly Park, the Chief Executive of the respondent, referred to a story in the media that morning in relation to the emergency department. She said that the story contained allegations about the quality of care in the department, and data entry into Symphony. She said that she did not believe that the standard of care had been compromised since the introduction of the new model of care, and that she remained committed to the model. As to the data entry allegations, she said that she had engaged Ernst & Young “to conduct a thorough investigation”, and that appropriate action would be taken once she received the outcomes. Although Ms Park’s email did not say so in terms, there was little doubt but that the source of the media’s information had been a copy of the grievance letter of 2 December 2013.

32    Ms Park sent a further email to all staff on 15 December 2013 (a Sunday). Referring to another story in the media the previous day, she said that it gave “a false impression of the workings of Dandenong Hospital and the Emergency Department”. She continued:

Not only are the accusations misleading – we know there have been outstanding results of patient care from the changes we have in the Emergency Department over the last twelve months.

Feedback from nurses, doctors and patients have been overwhelmingly positive, and of course the most important of these is the feedback that we are receiving from our patients – through letters and patient experience surveys.

Neil Goldie, Medical Director and Jo Morey, Nurse Unit Manager are rightly very proud of their Emergency team of doctors and nurses – and the improvement inpatient care achieved with the changes through their new model of care.

Patients are waiting less time to see a doctor, are being moved in from the waiting room much sooner, a,balances [sic] are being released back to the community sooner and patients are being admitted to the right ward faster. This is a tremendous outcome for our patients!

Our patient experience surveys have shown how much these changes have improved the way our patients feel about their care. The decrease in the number of patients who leave without being seen and the decrease in the ambulance offload time are clear indicators that we have improved our care delivery. These are real achievements.

Like me, Neil and Jo take the suggestions that there has been data alteration very seriously and welcome the independent review jointly commissioned by Monash Health and the Department of Health.

33    By email sent to the applicant on 18 December 2013, Ms Morey formally acknowledged receipt of the grievance letter. That email contained the following passage:

As you are aware, since receipt of your email the management of Dandenong Hospital have been reviewing and developing responses to the concerns raised in the attachment. An Open forum was held with Dandenong Emergency Department staff on 11 December 2013 in response to the letter which was attended by Mr Siva Sivarajah, Chief Operating Officer South East Sector and currently two reviews are underway, one with respect to the data issues raised which is being conducted by Ernst & Young, an independent, external audit and accounting firm and the second to address the other matters raised in the letter. This is being conducted by Jennine Harbrow, [Director of Nursing] Emergency Program and Shelley Wallace, HR Business Partner. You would also be aware some of the issues raised in the letter are already current matters of discussion with the ANMF.

Both the language and the timing of this email were the result of it being realised, somewhere in the respondent’s organisation, that the grievance letter, having been a formal invocation of the grievance procedure under the enterprise agreement, required a formal response. The email was drafted by the respondent’s human resources staff for dispatch over Ms Morey’s name.

34    Another email which Ms Morey sent to the applicant on 18 December 2013, however, was her own work. It was sent at 10:33 pm, and thanked the applicant for expressing an interest in postgraduate study in 2014. She said that she, Ms Willcocks and Mr Wheeler had decided to support the applicant’s application.

35    A further forum on the subject of the matters raised in the grievance letter was conducted by Mr Sivarajah on 23 December 2013. The applicant was amongst the attendees. The slides used by Mr Sivarajah in his presentation on this occasion referred to the two reviews – one internal, the other external – which were being conducted with respect to the matters raised in the letter. In the internal review, 28 staff, including 17 nurses, had participated either in focus groups or in individual interviews. The results, with respect both to the things that were working well and to the areas where issues remained, were covered in the presentation; as were the “next steps” which were proposed to be taken.

36    On 27 December 2013, Ms Park sent an email to all staff, in the following terms:

I write to you following my email last week regarding Dandenong Emergency Department.

We have received the report from the auditors, Ernst and Young – who were engaged to investigate the data integrity claims.

I am pleased to report that they have found Dandenong Hospital emergency department data to be reliable and accurate. In their findings where they reviewed over 85,000 entries from 1 July 2012 the auditors found that just 0.02% of data entries were not reliable.

Importantly, the auditors found no evidence of systemic manipulation of emergency department data. As a result of this independent examination, a number of findings and recommendations have been made relating to the continued enhancement of controls, new controls made possible by the recent availability of the transaction log by the Symphony vendor, coupled with updates to existing training.

In addition, a number of positive findings were identified as a result of our procedures.

The report also gave valuable feedback on our new team-oriented model of care at Dandenong Hospital. Ernst and Young found that the new model of care increased patient flow and improved overall patient care. Patients are waiting less time to see a doctor, are being moved in from the waiting room much sooner, ambulances are being released back to the community sooner and patients are being admitted to the right ward faster.

The report emphasised the importance of communication between all staff when implementing any changes, we know we must remain committed to maintaining an open dialogue. This is in line with the direction Siva Sivarajah, our Chief Operating Officer for the South East Sector, introduced at his forum with the Dandenong Emergency staff on Monday where he has commenced a fortnightly forum where he and the local leadership team will meet with the emergency department staff.

As I said last week, I am very proud of the innovation and collaboration, both within Dandenong Hospital and right across Monash Health. You, our staff are delivering great results for our health service and our patients.

Data integrity is critical to the way we run our health service and we are committed to ensuring that this is maintained. I once again take the opportunity to remind all staff of our commitment to our iCare values. I encourage any staff who have any concerns to raise them with your local managers or a member of the executive management team.

The results of this audit reinforce and commend the good work you are doing.

I thank you for your ongoing commitment and support.

37    In response to this communication, the ANMF published a “newsflash” acknowledging the results of the Ernst & Young investigation, but expressing concern that, if 85,000 histories had been reviewed, they would have spent about two minutes on each history.

38    On 20 January 2014, Ms Smith advised Ms Willcocks that there would be a meeting of all ANMF members employed at the Dandenong Hospital at 2 pm on 23 January 2014. A notice calling the meeting was attached. The purpose of the meeting, which would be attended by Ms Smith herself and by the Acting Secretary of the Victorian Branch of the ANMF, Paul Gilbert, was “to provide a report back on hospital wide issues, in particular Emergency Department.” The meeting was duly held in a room at the hospital which was described as a “lecture theatre” because of the tiered arrangement of the seating in it. The applicant alleges that what was said by Ms Moseby and by Cliff Connell, a CNE in the emergency department, constituted adverse action taken against her within the meaning of s 342(1) of the FW Act. This allegation is denied. I shall return to it in a later section of these reasons.

39    The next matter to which I should refer in outline is the applicant’s allegation that she was rostered to work on weekends excessively between December 2013 and August 2014, and that this constituted adverse action within the meaning of s 342(1) of the FW Act. It is alleged that that this rostering pattern was a deliberate act on the part of the respondent, and was done for reasons which made it unlawful under Pt 3-1 of the FW Act, including, in respect of this matter, s 351. These allegations are denied. I shall return to them in a later section of these reasons.

40    The applicant’s final allegation of adverse action relates to the way she was, allegedly, treated by Ms Morey on an occasion in late June 2014 when she (the applicant) and one of her co-workers had been too busy to take the meal break to which they were entitled under the enterprise agreement. That entitlement was for one 30-minute unpaid meal break, and to two 10-minute paid rest intervals, in each shift. Apparently, it occasionally happened that the demands of work in the emergency department precluded a nurse from taking the meal break. Here the required procedure was as set out in an email sent by Ms Morey to nursing staff on 3 August 2012, which included the following passage:

While there are many times when staff cannot get a break, I remind you to seek assistance from the ANUM to facilitate a break or to ask for approved paid no meal break. This cannot be approved after the meal break was missed.

41    On the nights of 28/29 and 29/30 June 2014, the applicant worked night shifts, commencing on each occasion at 9:00 pm. On neither shift was she able to take her meal break. At 11:42 am on 29 June (ie the day between the two night shifts), the applicant sent an email to Ms Morey in which she noted that she had not had a meal break on the previous night’s shift. She said that someone called “Charlie” was aware of this, and was going to speak to Ms Chalkley about her (the applicant) and another nurse (in the same position) being paid for the full shift. She finished this statement with the symbol “??”, by which I understand that she was, in effect, raising with Ms Morey the inquiry as to whether she and the other nurse would be paid in respect of the meal break which they had missed.

42    Early in the morning of what was, I infer, Monday 30 June 2014, Ms Morey approached the applicant and asked how things had gone overnight. Amongst other matters, the applicant told her that she had again foregone her break, and asked her if she would change the time card for herself and the other nurse with whom she had been working, to make sure that they were paid for not having a break. This much of the conversation between the applicant and Ms Morey is controversial. The respondent accepts that, in making this request of Ms Morey, the applicant was exercising a workplace right within the meaning of s 340(1)(a)(ii) of the FW Act. The applicant alleges that she was also, at the time, engaging in industrial activity within the meaning of s 347(b) of the FW Act, but I reject that allegation. Save to refer to some very high level concerns about workload and workplace stress expressed on unconnected previous occasions, the applicant pointed to nothing that would give her request that Ms Morey ensure that her timecard accurately reflected the hours that she had worked a character that would bring it under s 347(b). The applicant alleges that Ms Morey’s response to her request constituted adverse action taken against her within the meaning of s 342(1) of the FW Act. This allegation is denied. I shall return to it in a later section of these reasons.

43    At 1:27 pm on 7 July 2014, the applicant sent Ms Morey an email in the following terms:

I am sorry to put this to you but I am in dire straits. I have been unwell ongoing for some time now but have tried to keep up appearances and come to work as best I could. I have finally reached a point where my body has failed me and I am mentally and physically exhausted. As you know I have no sick leave left as had [sic] several times during the year had to take leave to look after sick kids. I need to take a week or even two weeks off at the moment. I’m seeing my dr [sic] this afternoon again and will go from there. Financially I can’t afford to take leave without pay and I have 325 hours annual leave owing. I wondered if there is any hope at all that I could take annual leave in this emergency situation? I am sorry to ask but I don’t know what else to do?

Please let me know what you think?

In a responding email sent at 1:58 pm, Ms Morey said that she would accede to the applicant’s request for emergency annual leave, but asked her to provide a medical certificate. The applicant did provide a certificate, and subsequent certificates. At some point, she made a workers’ compensation claim which was accepted. She did not return to work, and had not returned as at the trial of this proceeding. A deal of medical evidence was led in support of her claim for compensation under s 545(2)(b) of the FW Act but, in the light of the way I propose to decide the substantive issues in the case, that does not call for consideration.

THE RELEVANT LEGISLATION

44    The applicant relies first on s 340(1)(a), in combination with s 341(1)(a) and (c), of the FW Act. Those provisions are as follows:

340 Protection

(1)    A person must not take adverse action against another person:

(a)    because the other person:

(i)    has a workplace right; or

(ii)    has, or has not, exercised a workplace right; or

(iii)    proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; ….

341 Meaning of workplace right

Meaning of workplace right

(1)    A person has a workplace right if the person:

(a)    is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

….

(c)    is able to make a complaint or inquiry:

(i)    to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii)    if the person is an employee – in relation to his or her employment.

45    The applicant relies next on s 346(b), in combination with s 347(b), of the FW Act. Those provisions are as follows:

346 Protection

A person must not take adverse action against another person because the other person:

….

(b)    engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); ….

347 Meaning of engages in industrial activity

A person engages in industrial activity if the person:

….

(b)    does, or does not:

(i)    become involved in establishing an industrial association; or

(ii)    organise or promote a lawful activity for, or on behalf of, an industrial association; or

(iii)    encourage, or participate in, a lawful activity organised or promoted by an industrial association; or

(iv)    comply with a lawful request made by, or requirement of, an industrial association; or

(v)    represent or advance the views, claims or interests of an industrial association; or

(vi)    pay a fee (however described) to an industrial association, or to someone in lieu of an industrial association; or

(vii)    seek to be represented by an industrial association; ….

46    As mentioned above, in one respect the applicant relies on s 351(1) of the FW Act, which relevantly provides as follows:

An employer must not take adverse action against a person who is an employee … of the employer because of the person’s … family or carer’s responsibilities ….

47    For the adverse action which she alleges, the applicant relies on paras (b), (c) and (d) of item 1 in the table in s 342(1) of the FW Act, which provide that an employer takes adverse action against an employee if the employer –

(b)    injures the employee in his or her employment; or

(c)    alters the position of the employee to the employee’s prejudice; or

(d)    discriminates between the employee and other employees of the employer.

Counsel for the applicant made it clear that his client’s emphasis was on para (c), namely, what was alleged to be the alteration of the applicant’s position to her prejudice.

PROBLEMATIC ASPECTS OF THE APPLICANT’S FACTUAL CASE

48    Before dealing with the applicant’s allegations of adverse action as such, I should advert to some dimensions of her case that contributed to what will be an unsuccessful outcome for her.

49    First, it is apparent from the applicant’s pleading that the instances of adverse action which she alleged did not, for the most part, fit the conventional paradigm of an employer taking action against its employee (such as, for example, may be seen in situations of demotion, suspension, involuntary transfer, denial of benefits, and the like). That was not fatal, of course, but it made the applicant’s adverse action case a less obvious one. The actions which she claimed fitted the terms of paras (b) and (c) of item 1 in the table in s 342(1) of the FW Act were, to a large extent, by way of personal behaviours and interactions, and even then the detrimental or prejudicial aspects of them tended to be subjectively-identified: the applicant was berated, humiliated, treated with hostility etc. When a case is framed in this way, the treatment complained of would, in my view, normally have to be both obvious and egregious to come within the terms of the statute.

50    That leads me to the second dimension of the applicant’s case which warrants mention at this stage. She did express many of her allegations, both in her pleading and in her evidence, in terms which connoted not merely hostile or unfriendly interactions, but quite venomous words and behaviour directed to her by her managers and supervisors. In proceeding in this way, she set the bar very high. Each of those to whom she directed her accusations has given evidence and directly denied engaging in conduct that would come close to sustaining a case under Pt 3-1 of the FW Act. Those denials were credible. Having seen the people concerned in the witness box, I was not satisfied that I should, in the face of their denials, uphold the rather extreme allegations around which the applicant’s case was framed.

51    Thirdly, in many instances, the conduct of which the applicant complains is alleged to have occurred in meetings, and less formal gatherings, where many nurses were present. Because of the spread of the applicant’s allegations across the respondent’s managerial and supervisory staff, it has happened that, oftentimes, they were able to be examined and cross-examined about each other’s behaviour. That was useful, as it provided the court with some corroboration of the evidence given by the respondent’s witnesses. But, with one exception – the evidence of Mr Gilbert and Ms Smith about the ANMF meeting on 23 January 2014 – the applicant was on her own. Her counsel submitted that it would be wrong to place the rank and file nurses that were present on many of the occasions which have become relevant in this case in the applicant’s, rather than in the respondent’s, camp. I do not accept that submission. The applicant was a job representative for the ANMF, and it is clear that there was no shortage of nurses with whom she was on good terms (although, sadly, there came to be a number, it would seem, with whom she was not, at least after her involvement in the preparation and sending of the grievance letter of 2 December 2013). But, however these “camp” questions may be, the fact remains that the applicant’s factual case, on highly controversial matters, derives little or no corroboration from the evidence of others.

52    Fourthly, as the reasons below will demonstrate, the applicant’s own circumstances in the area of her employment, and her relations with others at work, appear to have reached their nadir in the period from about the beginning of December 2013 to about the third week in January 2014. But she did nothing then to assert the rights, and to make the allegations, on which she now sues. It was not until 22 December 2014 that this proceeding was commenced. I do not criticise the applicant for that, and I accept that any suggestion that she should commence litigation of the present kind while still working cheek-by-jowl with the targets of her accusations could not be taken seriously. But the lapse of time has had the inevitable consequence that many of the detailed recollections of those who are now called upon to defend themselves may have dimmed. This was not universally the case, but in one of the applicant’s allegations, to take an example, it is said that two of her managers “stared” at her during a morning muster. No point having been made of this at the time, it is little wonder that the managers concerned found difficulty in dealing with the allegation.

53    Fifthly, it is inevitable, in a case which relies to such a large extent upon oral evidence, and in which there are so many head-to-head conflicts of evidence, as the present one, that the assessment of the credibility of witnesses will play an important role. I have attempted to resolve the factual issues which arise by reference to such objective evidence as is available, but that approach has taken me only so far. I was particularly impressed with Ms Morey, Dr Goldie and Mr Connell. Their evidence, both in its content and in the manner of its giving, was thoughtful, frank and unembellished. Ms Moseby and Ms Chalkley were good witnesses too, although at times I felt that they responded defensively, rather than frankly, to some of the factual matters that were put to them. I did have, I am bound to say, some reservations about the applicant. I accept the submission of counsel for the respondent that she tended to exaggeration. In a number of areas, she either embellished her evidence with something that had not been alleged or particularised, or otherwise departed from her pleaded factual case. Where it matters, I refer to these instances below. She made quite serious accusations against some of the people with whom she worked, but she was often in difficulty locating, in time and place, the events on which she relied. She had a tendency, in her evidence, to generalise the conduct of which she complained and did not always manage to discriminate between different meetings, for example, where hostile things were allegedly said about her. As her counsel submitted and as I accept, it must be recognised that, after she commenced her period of leave in July 2014, she was diagnosed with a psychological disorder and, on one view, it is a credit to her that she has been able to pursue her claim in court with patience, focus and determination. So nothing I say here is critical of her. But my concerns about the reliability of the evidence which she gave, at least at the more significant points of the case, remain.

DR GOLDIE’S RESPONSE TO THE APPLICANT ON 5 SEPTEMBER 2013

54    I deal here in more detail with the matters referred to in para 11 above. The allegation is that, by the terms and manner of his response, Dr Goldie “humiliated” the applicant, and that this amounted to the taking of adverse action against her.

55    Generally on every other Thursday, a meeting of nurses in the emergency department was held in the tea room. These meetings commenced at about 2:00 pm, to facilitate the attendance of those who had been on the morning shift and those who had just commenced on the afternoon shift. According to the applicant, these meetings were usually attended by 15 or 20 nurses. In the tea room, there was a table at which nurses might be seated, and couches running along the walls in various places.

56    The meeting on 5 September 2013 was one of these meetings. It had been under way for a short time, with matters of no present relevance under discussion, when Dr Goldie entered. At some point thereafter, according to the applicant, she directed his attention to his comment at the meeting of senior nurses to the effect that nurses who did not move patients out of the waiting room and into cubicles in the emergency department, when available, were “punishing” the patients concerned. She said that some of the senior nurses had mentioned the matter to her and were “devastated and extremely upset” by what Dr Goldie had said. The applicant asked him to retract his comment and to apologise.

57    According to Ms Morey, who was also at the meeting, the applicant told Dr Goldie that senior nurses had come to her and were devastated and extremely upset by his comment at the previous meeting that nurses punished patients. The applicant said that she had raised the issue with the ANMF, and she asked Dr Goldie to apologise and to retract his comment.

58    Ms Moseby, Ms Chalkley and Dr Goldie himself all gave evidence about the terms in which the applicant had raised the matter which concerned her, but the evidence of each was substantially consistent with the evidence of the applicant and Ms Morey referred to above. It was Dr Goldie’s response which has become controversial.

59    There were four dimensions of that response which, on the applicant’s case, when put together warranted the conclusion that he had thereby taken adverse action against her: the terms which he used, the fact that he addressed his response to the room generally rather than to the applicant as an individual, the tone and level of his voice, and his body language. For the sake of a closer examination of the respects in which the evidence of the various witnesses line up one with another or differ from each other, I shall consider each of these dimensions separately, but the ultimate issue is whether the terms and delivery of Dr Goldie’s response to the applicant, taken in context, humiliated her and met the statutory description of adverse action.

60    Commencing with the terms of Dr Goldie’s response, according to the applicant’s evidence, he said that he would not withdraw his remarks, as he believed them. Neither would he offer an apology, or retract what he had said. He reiterated that he believed that nurses were punishing patients, because there was no reason why a patient should remain in the waiting room if there was a cubicle available.

61    Dr Goldie’s own evidence was that he had said that he regretted the use of the word “punishing”, but he still believed that the principle was sound. He said that, when he used that word at the earlier meeting, he meant not to cause offence, but to change behaviours. At the conclusion of what would have been an explanation lasting about a minute and a half or two minutes, he said that he apologised if he had caused offence, but he still stood by what he said, although not the words that he had used.

62    According to Ms Morey, Dr Goldie apologised for using the word, and for the “context” of punishing patients, “but [he] reiterated the context in which he was discussing the content at the time.” Ms Morey’s “understanding” was that Dr Goldie apologised for the context in which the message, or the statement, was received, in the sense that he did not intend to insinuate that nurses punished patients. Rather, he intended his comment to be a reference to the philosophy of nurses not wanting patients to be moved from the waiting room into the emergency department.

63    According to Ms Moseby, Dr Goldie apologised for using the word “punished”, but he said that he still believed that bringing the patients in, to have them assessed and cared for inside, was the best thing. Under cross-examination, however, it became apparent that Ms Moseby’s recollection of Dr Goldie’s “apology” was based on what she had, by 5 September 2013, heard him say many times elsewhere, rather than on a clear recall of his actual words at the meeting on that day.

64    According to Ms Chalkley, Dr Goldie said something along the lines that he was sorry if the word he used upset people, but he stood by the principle that every patient should have a cubicle.

65    The evidence both of the applicant and of Dr Goldie was to the effect that, when he responded to her, he did not look at her directly – as would occur in the case of a conversation between two people. The evidence both of Dr Goldie and of the respondent’s other witnesses was that he was looking generally at the assembly of nurses present in the room when he responded to the applicant. Dr Goldie’s own evidence was that he understood the applicant to be raising a concern on behalf of the group, that is, on behalf of nurses generally in the emergency department. There cannot be any real doubt but that she was speaking in that capacity. Dr Goldie said that, for that reason, he addressed his response to the group generally.

66    The applicant’s evidence was that, when Dr Goldie responded to her, he looked directly at Ms Morey. Ms Morey herself said that Dr Goldie was looking towards the group of people that were sitting to her right, which was the majority of the staff in the room. When it was put to her that Dr Goldie directed his response to her specifically, Ms Morey’s response was firmly in the negative. Ms Moseby said that, in his response to the applicant, Dr Goldie was “looking at the room in general”, and not “projecting to anyone in particular”. Ms Chalkley said that Dr Goldie was “looking [at] whoever was speaking to him at the time”, but she also said that he “just looked straight ahead” from what she could remember.

67    As to Dr Goldie’s tone of voice and manner of delivery, the applicant said that he was “very brusque”, and that he spoke over the top of her, in the sense of not allowing her to finish what she was saying. He was “extremely agitated and angry”, and his voice was loud.

68    Dr Goldie did not have any recollection of the tone of voice that he used, but said that he did not believe that he raised his voice.

69    Ms Morey said that Dr Goldie spoke in his normal manner. She did not recall him being agitated or speaking loudly. She just remembered him speaking generally to the group and answering the questions as he was being asked. Under cross-examination, she accepted that there had been, to use counsel’s words, “some back and forth between the applicant and Dr Goldie”, and recalled “them both talking”, but she could not say whether Dr Goldie “specifically spoke over her or not”. Ms Morey did not believe that Dr Goldie spoke in a loud and aggressive manner.

70    Ms Moseby said that Dr Goldie “spoke fluently”, politely, and in a non-threatening way. She said that he did not raise his voice. She said that he used “his normal tone”, adding that he “talks quite softly” but he “tends to talk in long realms [sic] and it’s very difficult to interrupt his sentences when he speaks.” She said that Dr Goldie often interrupted people, adding that, because of his use of long sentences, it was very difficult to interrupt him. She accepted that he would talk over people, and that was what happened on the occasion in question. She said: “But he didn’t raise his voice. He has a monotone voice. … [H]is tone doesn’t change. It just keeps going.”

71    In chief, Ms Chalkley said that the conversation which had been opened by the applicant did get heated, “but it was more of people trying to get their point across.” It was not only the applicant and Dr Goldie who were speaking: others “were kind of butting in and that kind of stuff”. Still, the volume at which Dr Goldie spoke was “just normal”. Under cross-examination, Ms Chalkley said that Dr Goldie raised his voice because there was “lots of chatter in the room”, rather than to speak over the applicant. However, she also accepted counsel’s proposition that, when the applicant challenged Dr Goldie, just about everyone in the room took a deep breath in, that there was no need for either of them to raise his or her voice to talk over background noise, and that the only reason that either of them would have raised his or her voice was to talk over the other. Indeed, Ms Chalkley accepted that that was what was happening: both the applicant and Dr Goldie raised their voices to talk over the other.

72    As to Dr Goldie’s body language, the applicant’s evidence was that “his face was very animated and angry in appearance”, and that “his whole body language conveyed a sense of extreme anger”. She said that Dr Goldie “was using his arms in a sort of aggressive kind of manner”, adding, “also his facial features, he was very angry looking.”

73    Dr Goldie himself said that he probably would have used his hands “a little bit”, but he did not remember being threatening or aggressive.

74    When asked in chief about Dr Goldie’s body language, Ms Morey said that he was quite a tall person, and all she remembered was that he was “just standing where he was and communicating with the group.” Under cross-examination, Ms Morey said that Dr Goldie “certainly wasn’t remonstrating. … He wasn’t giving any body language. … [H]e wasn’t moving his arms around.” She did not recall him being aggressive.

75    When asked in chief about Dr Goldie’s body language, Ms Moseby said that he was “relaxed”, and that there was nothing in particular about it that she thought was significant. Under cross-examination, Ms Moseby rejected the suggestion that Dr Goldie was (in counsel’s words) “angry and animated in his appearance”. She also rejected the suggestion that he “used his arms in an aggressive manner”.

76    When asked in chief about Dr Goldie’s body language, Ms Chalkley said that he was “just standing”, and that his general demeanour was the same as normal. Under cross-examination, Ms Chalkley said that she did not recall him waving his arms around. She said that she did not recall him being animated.

77    I should mention also an email which the applicant sent to Ms Smith on the evening of 5 September 2013. The email, which was tendered by the applicant without objection, relevantly read as follows:

Just a quick note to let you know we had the meeting with Jo (num) and Neil (med director Ed) today with a good turnout of nursing staff, many who came in on their day off. It was an interesting meeting and the concerns that I mentioned to you regarding the staffing in ssu was brought up. In particular the enrolled nurses there mentioned that overnight the ssu is staffed as a ward at 1 nurse to 6 or 8 patients but that the patients were still requiring 2/24 obs and ongoing nursing interventions. Two of the enrolled nurses stated they had very real concerns working on night shifts in ssu as they believe it is “unsafe” for patients. Jo said that they were constrained by the eba as to how they can staff the area.

I voiced my and other nursing staffs disgust at the suggestion by Neil in a meeting with anum/cns staff that nursing staff “punish” patients by making them wait “unnecessarily” to be seen in Ed. I asked for him to formally apologise which he refused to do and he again reiterated that he would not apologise for saying that anyone who intentionally made patients wait to be seen was punishing patients and that it was wrong of us to do that. I stated that I didn’t think there was a single nurse who would intentionally make a patient wait for treatment longer than was practicable given cubicle numbers and staff restraints. He was quite aggressive I felt in his responses and I was left feeling he did not listen to what I was trying to say. He spoke over me several times. I tried to make the point that I think is important to recognize which is while it’s an admirable aim to try to see patients as quickly as possible it is also a fact that nurses are human they too have a limit to how fast they can work and that patient outcomes will also be affected if exhausted nursing staff are pushed to see increasing numbers of patients at a faster pace than is already the case. Neil dismissed my concern out of hand. Jo seemed to be more understanding of what we were trying to say. I must say they both asked for input and for people to let them know any concerns and any suggestions to help with the issues nursing staff are having.

….

(errors in original)

78    I would say several things about this email. First, it was written contemporaneously with the events to which it purports to relate. Secondly, under cross-examination the applicant was invited to affirm that the email contained “a fair recollection of how you interpreted the meeting that day”, and she did so. Thirdly, the email had the colour of a report to the applicant’s union organiser, rather than a complaint that some wrong might have been done to her. The subject of present concern was not the first thing that the applicant mentioned in the email. Fourthly, the email provides some support for the applicant’s recollection that, at the meeting, Dr Goldie said that he would not apologise for referring to the practice of keeping patients in the waiting room when there were available cubicles in the emergency department as “punishing patients”. Fifthly, the email makes it clear that, after Dr Goldie’s initial response to the applicant’s point about the “punishment” metaphor, there was in fact a conversation of substance about the practice which Dr Goldie wanted to end. The tenor of the email is that it was to the latter that the applicant particularly wanted to draw to Ms Smith’s attention.

79    What findings can be made in the light of the evidence to which I have referred above? Notwithstanding the terms of the applicant’s email to Ms Smith, I am not satisfied that Dr Goldie specifically made it clear that he would not apologise. Indeed, I am satisfied that Dr Goldie said enough to convey the idea that he regretted using the word “punishing”. That was the substance of his own evidence, and of that of Ms Morey, Ms Moseby and Ms Chalkley. Given the passage of time which has elapsed since the meeting, it would be unrealistic to attempt to reconstruct the very terms of who said what, and to whom. But the distinction made by Dr Goldie between the words which he used, on the one hand, and the underlying concern which provoked the use of the words, on the other hand, is one which would reasonably have been understood by those present.

80    It is common ground as between the applicant for the one part and Dr Goldie, Ms Morey and Ms Moseby for the other part that, when Dr Goldie responded to the applicant, he did not address his remarks to her specifically. Whether his remarks were addressed to Ms Morey specifically or the generality of nurses in the room is, given the nature of the applicant’s case, a distinction without a difference, but, to the extent that it matters, I prefer the evidence of Dr Goldie, Ms Morey and Ms Moseby over that of the applicant. I am not satisfied that Ms Chalkley had a sufficient recall of this aspect of the exchange to make her evidence, such as it was, of any utility. I find that Dr Goldie’s remarks were addressed to the group, and I accept his evidence that he did so because of his perception that the applicant’s initial contribution had been made on behalf of the group.

81    I think it likely that Dr Goldie’s initial 1½-2 minute explanation flowed naturally into the broader discussion of the underlying issue, as referred to by the applicant in her email to Ms Smith. I hold, on the probabilities, that there was little, if any, further focus on the “punishment” word alleged to have been used by Dr Goldie. It is reasonable to expect, and I find, that the applicant, Dr Goldie and others participated in that discussion, and that there were times when Dr Goldie “spoke over” the applicant. Although referred to as a meeting, this occasion was procedurally informal, accommodating contributions from anyone present with something relevant to say. I accept that, when he was speaking, Dr Goldie raised his voice to the extent necessary to make himself heard, albeit that, initially at least, there was little or no competing conversation noise. It should also be understood that Dr Goldie responded not as though in a conversation with one other person, but as though addressing a gathering, which he was. He was also intent on leaving the nurses in no doubt as to his underlying concern about patients being moved into the emergency department. The emphasis with which his responses were presumably given may well have been misinterpreted by the applicant. Dr Goldie also acknowledged that he used his hands as a means of expressing himself, but I would not accept the applicant’s case that he did so in an aggressive manner. I cannot accept the applicant’s evidence that his demeanour, throughout, was one of anger.

82    It was submitted on behalf of the applicant as follows:

The Federal Court has now held on a number of occasions that an employee feeling emotional distress and anger of marginalisation in the workplace has had their position altered to their prejudice. [Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440 at [251] to [255]. … See also Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [20151 FCA 225 at [278].] It is accepted that for this to amount to adverse action, the prejudice must be “in the... employment”. However, it is submitted that where the impugned conduct causes emotional distress which is directly related to the employee’s position and the performance of their role, this will amount to a prejudicial alteration.

It was also submitted that, for action of the kind referred to in item 1(c) in the table in s 342(1) of the FW Act to occur, two things were both necessary and sufficient: (1) action taken against, ie with reference to, a particular employee, and (2) the effect of that action being a prejudicial alteration in the employee’s position. For reasons which follow, I do not accept that submission; and I do not accept what is set out in the indented passage above.

83    Section 342(1) is a drafting mechanism by which is set out, exclusively, what is adverse action. The things in column 2 of the table are adverse action. Thus, under item 1(a) for example, if an employer dismisses the employee, the employer thereby takes adverse action against the employee. No further inquiry is either required or permissible. To consider, additionally, whether the dismissal was something done “against” the employee, and to consider what effect the dismissal had on the employee, would be to address questions which are neither required nor permitted by the statute.

84    As the passage set out above indicates, of the “number of occasions” upon which the court was supposed to have held that an employee feeling emotional distress and anger of marginalisation in the workplace had thereby had their position altered to their prejudice, only two were referred to, the first of which has since been confirmed on appeal: Maritime Union of Australia v Fair Work Ombudsman [2016] FCAFC 102. Both of the cases referred to, however, proceeded under item 7(b) in the table in s 342(1), by which it is adverse action if an industrial association, or an officer or member of an industrial association, “takes action that has the effect, directly or indirectly, of prejudicing the person in the person’s employment ….” Use of this formula has its origins in paras (e) and (h) of s 335(1) of the Industrial Relations Act 1988 (Cth), and thereafter in s 298Q of the Workplace Relations Act 1996 (Cth).

85    By contrast, the formulae to be found in paras (a), (b) and (c) of item 1 in the table have been in use since amendments made to s 9 of the Commonwealth Conciliation and Arbitration Act 1904 (Cth) by the Commonwealth Conciliation and Arbitration Act 1911 (Cth). Each of the three delicts referred to “is constituted by the combination of an overt act and a motive or reason for that act which renders the act unlawful”: Roberts v General Motors-Holden’s Employees’ Canteen Society Inc (1975) 25 FLR 415, 418. In the case of item 1(c), the overt act is the alteration of the employee’s position to his or her prejudice. This requires, self-evidently, that there has been an alteration of the employee’s position, and that the alteration has been to his or her prejudice. Satisfaction of these requirements is to be objectively determined.

86    In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, the High Court held that the provision which is now item 1(c) in the table in s 342(1) of the FW Act –

… is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question. (195 CLR at 18)

The “conduct in question” was, of course, the conduct of the employer by which the employee’s position was altered. In Patrick itself, the alteration was prejudicial in that it made the employees’ employment less secure. A similar situation arose in Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93, where managers had been instructed, in the context of an anticipated round of redundancies, to favour for retention employees who were not covered by particular industrial instruments. Another example of the operation of the provision was Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244, where the employer decided to suspend overseas postings, but lifted the suspension before any of the relevant employees became due for such a posting in the normal course. Holding that there had been a prejudicial alteration, the Full Court said (202 FCR at 250 [32]):

The authorities thus establish that a prejudicial alteration to the position of an employee may occur even though the employee suffers no loss or infringement of a legal right. It will occur if the alteration in the employee’s position is real and substantial rather than merely possible or hypothetical.

87    The sense in which it was submitted on behalf of the applicant that Dr Goldie altered her position to her prejudice at the meeting on 5 September 2016 was that he humiliated her by speaking rudely and abruptly in a raised voice over the top of her while she was speaking, by interrupting her while she was speaking, by not looking at her or addressing her directly when he was speaking to her and by ignoring her presence; and he so conducted himself at a meeting attended by a large number of other nurses, including management of the emergency department.

88    The evidence in support of this humiliation claim was given by the applicant in chief as follows:

And can I ask, as a result of Dr Goldie’s comments and conduct in that meeting, how did you feel?---I was humiliated. I felt so embarrassed that – that he had spoken in response to me in the - - -

Why? Can you explain why? What it was about that that made you feel so humiliated?---Well, in essence, he’s the – the chief – the highest person in – of authority within the Emergency Department and for him to speak to myself in that manner, it – it was degrading, it was humiliating and it was in front of junior staff that I mentor and – and often had them as my – like, that I would take them through their preceptorship. And yet also I think it just made me feel as if my – my word and – and the word in the complaint of the other nurses wasn’t – wasn’t taken into consideration at all and that it was- it was just – it was embarrassing and – and I was quite distraught on leaving that – that meeting.

In what way were you distraught?---I was tearful and I went to the – in to the change rooms and was in tears.

89    The striking thing about this evidence is that it relates not to what Dr Goldie did to the applicant but to how she felt: each of the questions enquired of her feeling, or emotion, and was answered in that context. Neither is this just a matter of the outcome, or consequences, of conduct already held to have been adverse action: in the Statement of Claim, the relevant allegation of adverse action was that “Dr Goldie humiliated the applicant ….” That is, “humiliate” was used as a transitive verb apropos Dr Goldie’s statements at the meeting. The sense in which the word was employed in the applicant’s evidence as set out above, however, was as a reference to how she felt. While the feelings of the victim of alleged adverse action might often be relevant to the question whether such action in fact occurred, on their own they would never, in my view, be sufficient.

90    I would not use “humiliate”, as a transitive verb, to describe the words and conduct of Dr Goldie at the meeting on 5 September 2013. In his response to the applicant, he referred to the issue which she had raised, not to her as an individual. Indeed, from what appears in the evidence, he did not mention the applicant. He spoke not to her but to the meeting. I appreciate that that was, of itself, an aspect of Dr Goldie’s conduct that the applicant alleges increased her sense of humiliation, but a more realistic perspective, in my view, would be one which saw this as less likely to humiliate her than, for example, a put-down addressed to her directly.

91    It is common ground that the applicant spoke to Dr Goldie as a representative of nurses generally, and possibly also, if there be a difference, in her capacity as ANMF job representative. The other nurses present would have understood that. The point that she raised had had its genesis at a meeting at which she had not been present, and she raised it on 5 September 2013 because of reports and requests made to her by others. There was nothing personal in her complaint to Dr Goldie. This too would have been understood. That Dr Goldie addressed his response to the meeting generally would, in my view, have been regarded by those present as both natural and unsurprising. It is highly improbable that any of them would have regarded it as humiliating to the applicant (and, I would add, none of them was called by the applicant).

92    For Dr Goldie to have responded in terms, and in the way, that I have found above would not, I would find on the probabilities, have been reasonably understood by anyone present as directed to the applicant as an individual; and the regard in which the applicant herself was held by her colleagues would not reasonably have been diminished thereby. I reject the applicant’s case that, by Dr Goldie’s words and conduct at the meeting on 5 September 2013, the respondent altered her position to her prejudice.

93    No separate submissions were made on behalf of the applicant in reliance on para (b) of item 1 in the table in s 342(1) of the FW Act. Counsel made it clear that the emphasis in his client’s case was on para (c). No such submission was made that the applicant suffered an injury in her employment when Dr Goldie spoke that the meeting. To the extent that the applicant relies on para (b), I reject her case.

94    In the Statement of Claim, it was also alleged that, by reason of Dr Goldie’s conduct on 5 September 2013, the respondent “discriminated between the applicant and other employees of the respondent”. No attempt was made to sustain that allegation, and I reject it.

THE APPLICANT’S CONVERSATION WITH MS CHALKLEY

95    I deal here in more detail with the matters referred to in para 12 above.

96    The applicant gave evidence that she was in a cubicle in the resuscitation area (to which she referred as “resus”) with a CNS, Rebecca Wong. Ms Wong asked the applicant if they were allowed to “backdate” times on the respondent’s Symphony system. The applicant asked Ms Wong what she meant, and was told that the NIC, Ms Chalkley, had just asked her to change the “nursing complete” time for the particular patient in that cubicle. The applicant responded that it was her understanding that such a practice was not permitted at all. Then Ms Chalkley herself happened by. She asked what the problem was, and why they were not moving the patient concerned to the ward. The applicant said, “Tiffany, you asked Bec to put the time back to about 7:05 pm.” Ms Chalkley replied, “But it’s just a couple of minutes. It’s nothing much.” The applicant looked at her watch and saw that it was 7:40 or 7:37 pm. So, recording the time as 7:05 pm would have involved more than a few minutes’ backdating. She said to Ms Chalkley and Ms Wong that she thought that they were not allowed to do that. At this, Ms Chalkley became quite animated and angry, throwing her arms up and saying, “Don’t worry about it, I will do it myself”; at which she “walked off at a fast pace”. The applicant found Ms Chalkley’s language to be “quite angry and confronting”.

97    At the time, according to the applicant, there were patients, and their visitors, in the two adjoining cubicles, and a junior nurse (the identity of whom she could not recall) was standing nearby, immediately outside one of those cubicles.

98    In an email which the applicant sent to Ms Smith on 25 October 2013, she said:

I have also again had staff say to me they have been asked to backdate time of leaving dept. Our anum told me it was only a matter of 3 minutes I pointed out she wanted us to put 7 pm and it was 7.28 so bit more that 3 mins. She said don’t worry I’ll do it!!

(errors in original)

Under cross-examination, the applicant accepted that this was the same incident as that about which she had given evidence, as laid out above.

99    When Ms Chalkley gave evidence about this incident, she said that, so far as she was involved, the matter commenced when she noticed that the patient in question had been “allocated a bed on the Symphony screen”, by which she meant that she was able to see, from the computer, that a bed in a ward was available for the patient. She let Ms Wong know that the patient had a bed, and that he needed to be taken to the ward. Ms Wong said “OK”, but, a little while later, Ms Chalkley saw that the patient had not gone to the ward, so she went to the cubicle and asked Ms Wong to take the patient to the ward, and to backdate the time to the time when the patient should have gone to the ward. Then Ms Chalkley went away. A little later, she returned to the cubicle, at which time Ms Wong was in the company of the applicant. Ms Chalkley told them that the patient needed to go to the ward, and asked them to take him there. They agreed to do that. Ms Chalkley then asked them to take the patient “off the screen”. They said that they would do that, but not until the patient had in fact gone. Ms Chalkley’s response was, “Don’t worry. I will do it myself”; and she walked away.

100    Ms Chalkley said that, in this exchange with the applicant, she “may have been quite forthright”, and that the tone of her voice was “a bit more than normal”. She accepted that she was testy at the time. But, she said, the volume of her voice was normal. She said that she was “pushing for the patient to go, because the bed was ready and the patient was ready to go to the ward.” She did not recall anyone else being present, apart from the patient himself.

101    Under cross-examination, Ms Chalkley accepted that she had in fact asked the applicant and Ms Wong to backdate the time to a specific time nominated by her, although she could not recall what the time was. She accepted that, in speaking to the applicant, she was “animated” and “a bit more stressed and forced than normal”; but she did not raise her voice.

102    Ms Wong was not called.

103    The factual disparities between the evidence of the applicant and of Ms Chalkley in this area of the case are not easily resolved, because, first, there is little or nothing between them as to the content of the relevant conversation, secondly, save for the applicant’s email to Ms Smith to which I have referred, there is no documentation which bears upon the matter, and thirdly, no-one, apparently, considered that it might assist the court to lead Ms Wong’s version of the events in question. What the controversy comes down to, in effect, is a difference between the applicant and Ms Chalkley as to the most accurate descriptors of the latter’s manner: the applicant describing it as animated, angry and confronting, and Ms Chalkley accepting no more than that it was animated, forthright and testy. There is, in my view, something rather unreal about the success or failure of the applicant’s allegations on this point depending on distinctions of this kind. I accept the submission made on behalf of the respondent that the applicant tended to exaggeration in her evidence about the behaviour of various members of the respondent’s staff, but I also consider that Ms Chalkley had a tendency to relate events in which she had been concerned in terms which conveyed a more benign picture of her own involvement than the true facts may have warranted.

104    In the Statement of Claim, the relevant allegation was expressed as follows:

On or about 4 September 2013 Ms Chalkley berated the [a]pplicant for:

a.    refusing to adhere to a practice known as meeting the “4 Hour KPI” because it would compromise a patient’s safety by moving the patient out of the Emergency Department; and

b.    advising another nurse not to backdate a discharge time in order to adhere to a practice known as meeting the “4 Hour KPI”.

Whatever view one takes of the controversial facts, this allegation has not been sustained.

105    The impression one gets from the allegation is that Ms Chalkley administered a dressing-down of some kind to the applicant. The evidence does not go anywhere near that point. Even on the applicant’s own evidence, she was not berated by Ms Chalkley. The applicant was not taken to task for refusing to adhere to the 4-hour KPI; nor for advising Ms Wong not to backdate the discharge time. Ms Chalkley’s testiness arose from the twin facts that the patient was ready to leave the emergency department and a ward had become available. She was entitled to inquire why he had not been taken to the ward, and it is unsurprising that she expressed herself forthrightly. She was not entitled to require the nurses to backdate the time of discharge, and, ultimately, she did not insist that they do so. She left in an animated mood, and it may be accepted that her body language conveyed a sense of frustration that Ms Wong, advised by the applicant, had not done her bidding. But that was a long way short of conduct of the kind alleged in the Statement of Claim; or of conduct that would attract the operation of paras (b), (c) or (d) of item 1 in s 342(1) of the FW Act.

106    This allegation must be rejected on the facts.

THE LOG BOOK CONFRONTATION ALLEGATION

107    I deal here in more detail with the matters referred to in para 21 above.

108    In her evidence, Ms Smith said that, at the meeting of nurses convened by the ANMF on 15 November 2013, it was agreed that “the issues within the logbook as well as the issues raised within the meeting would be put together”. The applicant was to be the point of contact to whom nurses could address their concerns, and those concerns, together with what had been noted in the log book, would be put together in the proposed grievance letter (to which I have referred in para 22 above).

109    As produced by the applicant, the log book itself was a 64-page A4 school exercise book. On the front cover, in the space intended for the name, the subject and the school of the presumptive user, the applicant wrote “Dandenong ED – 2013 – MOC and AV offload – Issues log book”. “MOC” was “Model of Care”; and “AV” was “Ambulance Victoria”. Beneath that, still on the front cover, the applicant placed the following memorandum, secured by adhesive tape:

This book is to be used to log issues or incidents of concern regarding the new E.D. model of care and the A.V. offloading process. It is not to be used instead of completing a riskman. Please ensure you also advise the NIC/CIC and NUM of any clinical or OHS concerns you have, and complete RISKMAN as appropriate. It is to be used as a tool to identify ongoing issues so they can be more readily identified and addressed. Thank you for taking the time to log your concerns …

110    According to the applicant’s own evidence-in-chief, just before the morning muster on 18 November 2013 (ie just before about 7:00 am), she showed the log book to Ms Morey and asked her if it was okay if she explained to everyone that she had started the log book, and that it would be left at the desk of the NIC, so that nurses could put their comments in it. Initially, Ms Morey’s “face … went quite blank and then her face was extremely aggressive”. Her face was “ferocious”. She told the applicant that she was not to say a single thing about it, and that she was to meet her in her office immediately after the muster and not to discuss it with anyone.

111    The applicant did accompany Ms Morey to the latter’s office after the muster. In the office, Ms Morey asked the applicant “how this had come in to being”. The applicant explained that it had been agreed upon at the previous ANMF meeting. Ms Morey was very angry, referring to the fact that she had, after the meeting on 15 November, asked the applicant whether there had been anything said at the meeting, in circumstances where she herself had been unable to attend. The applicant explained that it (the log book) was something that she had heard of that was going to be part of the model of care, and that all the nurses at the meeting had agreed that it was necessary and helpful to have a log book. Ms Morey was quite angry, saying to the applicant: “People will write in this and they won’t come and tell me about issues.” The applicant showed Ms Morey what she had written – presumably the memorandum on the front cover as set out above – but Ms Morey was not happy with that explanation. The applicant explained Ms Morey’s demeanour at the time:

Her body language and her tone expressed absolute fury. [She] was almost standing over me, even though she’s not greatly taller than me … she was standing over me. Her shoulders and arms [were] hunched and clenched and her face [was] very animated and very angry looking. … She yelled at me directly into my face.

The applicant was upset and tearful. She tried to explain that the log book was merely a tool to try and help nurses, who were struggling. But Ms Morey told the applicant that she did not want her telling people about the log book.

112    Under cross-examination, the applicant clarified one aspect of this evidence. Ms Morey did not instruct her not to use the log book. She just said that her concerns were that people would not come to her with issues, or let the NIC on a shift know about problems, but would use the log book instead. However, notwithstanding Ms Morey’s unambiguous opposition to the project, the applicant did proceed to make the log book available by leaving it on the NIC’s desk, because it had been approved by the meeting on 15 November 2013 and Ms Smith had made it clear that the nurses were entitled to use a log book for the purposes intended.

113    The applicant was cross-examined as follows:

The confrontation or the issue you had with Ms Morey at muster and then in her office?---Yes.

You said she expressed anger on both occasions?---Yes.

And how did she speak to you?---She spoke rudely, abruptly.

Yes?---And – and curtly, I would say, very abrupt in her manner.

Yes?---Yes.

And did you report those two confrontations back to Nicole Smith?---I can’t recall. I apologise, I’m not certain.

Do you have a clear memory of what occurred on that day? Do you have a clear memory of what occurred on that occasion?---On which day are we speaking?

On 18 November when Ms Morey said she wanted to speak to you in her office and - - -?---I have a clear idea. I have very clear memory of that morning.

Did you ever make a record on what occurred on that day?---I – I – I may have made a record that evening, but I have a very clear memory of what happened that morning.

Yes. And I put it to you that not only did none of this occur, but none of this actually occurred until you commenced proceedings in this case?---No, that’s incorrect, sir.

I shall return to the significance of these exchanges.

114    Ms Morey gave evidence that she did not recall either having been shown a log book or having had a discussion with the applicant about the use of a log book. She denied seeing something that might be described as a log book. Shown the log book in court, Ms Morey said that she did not recall having seen it before. Looking at the entries in the log book, she said that she was seeing the content of the book for the first time (ie whilst being examined in chief). When Ms Morey looked at, and through, the log book and gave this evidence, her apparent unfamiliarity with the book was palpable. Her evidence that she had no recollection of ever having seen the log book before was credible.

115    Ms Moseby recalled the log book. She saw it sitting on the NIC’s desk. In her evidence, she identified the log book which she had seen on the desk. At the time, she looked at it and noted that it was “a book for people to put their concerns in”. Mr Connell never saw the log book, but heard about it some time after it had been withdrawn. Ms Chalkley saw the log book at the time, both on the NIC’s desk and, at times, in the tea room. She did not discuss it with anybody, and did not mention it to Ms Morey. Dr Goldie could not recall ever having seen the log book.

116    The last entry in the log book was dated 2 December 2013. The book was, I infer, then withdrawn by the applicant. In this proceeding, the original of the book was produced by the applicant, and there was no suggestion that it had ever been in anyone else’s possession. It was on 2 December 2013 that the applicant sent the grievance letter (see para 24 above) to Ms Morey. Given the purpose of the log book as stated in Ms Smith’s evidence, I infer that it was on that day that the applicant withdrew the log book because it had served that purpose, and was not required further.

117    The relevant allegation in the Statement of Claim was as follows:

On or about 18 November 2013, Ms Morey:

a.    required the [a]pplicant to attend her office upon becoming aware of the [a]pplicant organising the log book;

PARTICULARS

The applicant approached Ms Morey prior to the am shift ‘muster’ (where relevant information was passed from the night shift NIC over to am staff). The applicant advised Ms Morey she had created the log book, and asked if it was ok to let staff know at muster and leave it at the NIC desk for use. Ms Morey said words to the effect of “No. See me in my office after muster”.

b.    Expressed anger towards the [a]pplicant about the logbook;

PARTICULARS

A.    The applicant refers to and repeats the particulars … above.

B.    During a discussion between the [a]pplicant and Ms Morey in her office, Ms Morey said to the [a]pplicant in an angry manner words to the effect that “we don’t need that”.

c.    instructed staff not to use the logbook and not to approach the [a]pplicant for help if they had any issues …;

PARTICULARS

The Morey conduct relating to the log book:

A.    occurred on various occasions in the Dandenong ED on or about 18 November 2013 and on subsequent days;

B.    amounted to unreasonable behaviour towards the applicant creating a risk to her health and safety; and

C.    damaged the applicant’s good standing in the workplace.

118    Subparagraph c. of this pleading may be disposed of immediately. Ms Morey denied having instructed staff in the terms alleged, and there was no direct evidence that she had. I shall, however, return to this allegation in the context of the applicant’s credit below.

119    As to subparas a. and b., the only supporting evidence, either direct or indirect, was the applicant’s, and Ms Morey could not recall any such events. I accept Ms Morey’s evidence. She struck me as a sincere and conscientious witness who would not hesitate to deal with events in which she had participated, however awkward or embarrassing the consequences. She was also the manager of nursing in a large and busy emergency department. Unless conditioned by a disposition to see every event in the relevant time period through the prism of the applicant’s concerns and projects, I would not have any reason to expect Ms Morey to recall all the inconsequential discussions and interactions to which she may have been a party.

120    But even Ms Morey would have been most unlikely to have forgotten an incident in her office had it occurred in the way described by the applicant in her evidence. In this case, she proved herself equal to the task of recalling, and giving intelligible and detailed evidence about, a number of events that were less dramatic than the confronting exchange which she is alleged to have had with the applicant on 18 November 2013.

121    As against that, experience tells that, where a subordinate is given a dressing down by a superior following an “in my office” command by the latter, it is commonly the subordinate who will have the sharper recollection of the events concerned. What may be part of the daily routine for the superior will usually be a major drama for the subordinate. But there are reasons to doubt the reliability of the applicant’s evidence about this allegation.

122    First, as counsel for the respondent submitted and as I accept, the applicant’s evidence was characterised by exaggeration in a number of areas. The sense I got was that oftentimes events that may have been passed over by others as part of the daily grind of a busy emergency department with all its inevitable tensions and irritations became occasions of major drama for the applicant. As she presented in the witness box, the applicant seemed to be a person of rather tender sensibilities. That would not, of course, excuse bad behaviour towards on the part of others, but it is one of a number of matters to which I have had regard in assessing the reliability of her evidence when it was directly contradicted by, or even inconsistent with, that of other witnesses, such as Ms Morey, whose evidence was more conspicuously credible. It is true that characterising the applicant’s evidence as exaggerated may be seen, at one level, as begging the question, in the sense that, unless one knows the true facts one cannot conclude that particular evidence about them was exaggerated. But just about every accusation which the applicant made against other nurses in this case involved a perception, on her part, of intense emotions, such as anger and aggression, deployed to her disadvantage. As these reasons demonstrate, perceptions of this kind were rarely credible, given the circumstances existing at the time. The present instance is a case in point: if Ms Morey’s facial reaction to the applicant’s suggestion at the muster on 18 November 2013 was, as the applicant said, “ferocious”, it is difficult to see how it was not noticed by other nurses in the vicinity, yet none was called.

123    Secondly, in the period under consideration, the applicant took her position as job representative for the ANMF very seriously. She was a regular and conscientious correspondent with Ms Smith, occasionally writing in detail about, for example, the events with which she had been concerned, and which had come to her attention from others, on a particular shift. The log book had been Ms Smith’s idea. It was to have formed the basis of a formal grievance under the enterprise agreement. For emergency department management to have stood in the way of the use of the log book in the manner intended would have been perceived by the applicant as a direct and serious interference in her representative role. It would have undermined the grievance letter project. But there was no suggestion – either by the applicant or by Ms Smith – that the applicant ever notified Ms Smith of what she now claims to have been the strong adverse reaction of Ms Morey to the idea of using the log book. I am bound to say that, having been exposed to all of the evidence in this case, I consider it most unlikely that, had Ms Morey reacted as alleged, Ms Smith would not have heard about it from the applicant, and promptly. Ms Smith was called after the applicant, and after the suggestion of recent invention had been put to her by counsel for the respondent (see para 113 above). Had the applicant contacted Ms Smith – in writing, by electronic communication or by telephone – the latter’s evidence of that would have been both admissible and telling. There was no such evidence.

124    Thirdly, the log book was in fact used, without inhibition, as the applicant intended. It is true, of course, that the applicant’s evidence, unlike her pleading, did not go to the extent of asserting that Ms Morey imposed a prohibition on using the book, but, save for the alleged conversation with which I am presently dealing, there is no evidence that she or anyone else in the emergency department discouraged its use in any way. Given that the book was openly available on the NIC’s desk, including for the first week after 18 November 2013 (I mention that week because Friday 22 November was Ms Morey’s last day at work before commencing a period of leave), and was withdrawn by the applicant herself at a time of her own choosing and for her own purposes, the options are, as it seems to me, either that Ms Morey did not know about the book at all, or that she knew about it but did not seriously object to it.

125    Fourthly, the applicant included in her Statement of Claim the allegation that Ms Morey had instructed staff not to use the log book, and not to approach the applicant for help if they had any issues. In chief, the applicant gave no evidence on these matters. Under cross-examination, it came out that the facts alleged had been reported to her by others. But she called no direct evidence about it, notwithstanding that she had, apparently, given instructions sufficient to sustain the inclusion in her pleading of a particular to the effect that the alleged instructions by Ms Morey “occurred on various occasions … on or about 18 November 2013 and on subsequent days”. For the applicant to have overreached in this way might be seen as consistent with the respondent’s case that her recounting of the events surrounding the introduction of the log book into the emergency department was characterised by exaggeration to a significant degree.

126    As I have said, I accept Ms Morey’s evidence that she did not recall any such confrontation on 18 November 2013 as the applicant alleges. That is consistent both with there having been no conversation about the log book at all, and with there having been a conversation that was so passing and inconsequential that Ms Morey had no recollection of it. It is not consistent with there having been a confrontation of the vehemence alleged by the applicant.

127    For the reasons I have given, I do not accept the applicant’s evidence in this part of the case. It is quite possible that the applicant did show the log book to Ms Morey on the morning in question, and that Ms Morey expressed a reservation about it. I would not be justified in making a positive finding to that effect, and I do not do so, since it represents the evidence of no-one. It is sufficient that I reject the applicant’s evidence of the way Ms Morey reacted to the proposal to use the log book.

128    It follows that the applicant’s case that Ms Morey took action against her which came within paras (b), (c) or (d) of item 1 in the table in s 342(1) of the FW Act must be rejected.

CONDUCT OF MS MOREY AFTER 2 DECEMBER 2013

129    I turn now to the matters introduced in para 27 above, commencing with Ms Morey. The applicant particularised the relevant allegations in the Statement of Claim as follows:

The hostile conduct of Ms Morey:

A.    included:

i.    the use by Ms Morey of aggressive and hostile body language when coming across the applicant throughout the working shift;

ii.    speaking to the applicant in a manner which questioned the [a]pplicant’s capacity to perform her job;

iii.    paying lip service to concerns raised by the [a]pplicant rather than responding in any substantive way including by failing or refusing to follow up issues raised by the [a]pplicant; and

iv.    treating the [a]pplicant in a way which was abrupt, rude and aggressive when the [a]pplicant sought information from her;

B.    damaged the [a]pplicant’s good standing in the workplace; and

C.    amounted to unreasonable behaviour towards the [a]pplicant creating a risk to her health and safety.

In further particulars later provided, the applicant said that the hostile conduct included Ms Morey staring directly at the applicant on or about the first muster after 2 December 2013, “singling her out in the presence of other nurses and members of the Dandenong ED staff, and angrily said words to the effect that the ED was ‘broken’ by the letter of 2 December 2013”.

130    As noted elsewhere, Ms Morey was on leave on 2 December 2013, returning only on 9 December 2013. In chief, she said that, prior to the sending of the grievance letter, she had a good, open, relationship with the applicant. She was supportive of the applicant, who contacted her from time to time. This remained the situation after the sending of the letter. She tried to have the same level of respect for the applicant, and to work with her in the same way, as she did for, and with, everybody else. They “continued to work well together”. As with others, when she saw the applicant around the department, she continued to say “hello”. If the applicant’s evidence is to be believed, that could not have been the case.

131    Putting that evidence together as best I can, there were two early occasions upon which Ms Morey’s behaviour towards her was very different from the impression conveyed by Ms Morey’s own evidence, as referred to in the previous paragraph. One of them – I am unable to say whether it was the first in point of time – was a muster. According to the applicant, on that occasion Ms Morey and Ms Moseby stared directly at her, but did not say anything to her. Previously, Ms Morey would have “given a friendly smile”, or, if she had walked past the applicant, they would have had some interaction, such as “general banter.” Ms Morey and others at the muster had “a look of anger … – and it was almost as if there was siding of people beside her”, by which the applicant meant “it was almost as if the management group were all – all siding – sitting – like, standing beside her and – and then there was me over the other side.” It was “a very aggressive and angry atmosphere.” The applicant did not recall, however, any comments by Ms Morey that were made to her, or were referable to her.

132    In chief, Ms Morey denied that she had stared at the applicant at a muster shortly after her return from work. She maintained that denial under cross-examination. She agreed that she was, at the time, feeling hurt, on account of “the enormity of what was in the letter”. Without reference to any specific muster – Ms Morey said that, on days when she was at work at 7 am she would attend the muster – she accepted that she knew who had put their name to the letter. As she looked at the nurses attending the muster, she knew which of them had signed the letter. She knew that it was the applicant who had organised it. She became aware, later, that there were allegations that the applicant had coerced some people into signing, and that she had asked people to sign it without giving them opportunity to read the letter (counsel did not extract from Ms Morey a clear acknowledgement that this was her state of knowledge at the time of the muster as to which cross-examination was proceeding). Ms Morey rejected, however, the suggestion that she did not attempt to hide her disgust about the applicant. She said that she specifically made a point of trying to make sure that she behaved in the most integral way possible when she was with the staff: she never concentrated on who signed the letter, because she knew as a manager that she would not be able to move forward if she “concentrated on the who and the why”. Ms Morey denied that, at the muster in question or any other muster thereabouts, she stared at the applicant, that she did so with her arms crossed, and that she conveyed to the applicant her disgust with her.

133    With respect to this allegation, I accept Ms Morey’s evidence in preference to that of the applicant. Whatever was the actual date or dates of the muster or musters that the applicant had in mind, the essence of the allegation was that Ms Morey stared at her with venom in her eyes (although the applicant did not put it in quite those terms). The reality was that, in the days and weeks immediately following the dispatch of the grievance letter, emotions were high on both sides of what had become a rift in the emergency department. As the NUM, Ms Morey would inevitably feel that the letter reflected adversely upon her administration of the nursing component of the department’s work. In this proceeding, she made no attempt to establish the falsity of what had been in the grievance letter. Nor, on the evidence, did she do so at the time. But it is clear that she was cut to the quick by what a large number of nurses felt able to say about the way the department was operating. In these circumstances, it would have been unrealistic to expect that Ms Morey would sail through those first few weeks on a “business as usual” basis in her interactions with the applicant.

134    It is quite probable that the applicant – who was clearly also on her nerves’ edge with respect to the response which the grievance letter might provoke at the managerial level – completely misinterpreted the body language and other signals that she perceived in Ms Morey’s behaviour at the time. I cannot make a positive finding to that effect. But I must say that I would prefer it to the scenario painted by the applicant’s allegation. I reject that allegation. I find that, however uncharacteristic Ms Morey’s behaviour may have been at this time, there was nothing wilfully antagonistic to the applicant in that behaviour.

135    The other early occasion was the “open forum” which Mr Sivarajah conducted on 11 December 2013. In chief, the applicant did not at first have a clear recollection of that occasion. Having had her attention focussed on it by her counsel, she said that the meeting took place in a lecture theatre, not in the emergency department as such, that was “full to the brim”. She said that, at the meeting, Ms Morey said that she was devastated and upset that members of the staff could not come to her (ie could not bring their concerns directly to her rather than making them the subject of a grievance). She “insinuated” (as the applicant put in her evidence) that she had “no knowledge whatsoever” of any of the items that had been spoken about in the letter. Although not “word for word”, the applicant recalled that Ms Morey said that the person who wrote the letter had destroyed the department and it would take months or years to restore it. The applicant adhered to this evidence under cross-examination and, apart from putting it to her that she was wrong, counsel for the respondent did not take the matter any further.

136    Ms Morey said that she attended the open forum on 11 December 2013, but did not speak. In chief, she said that she was “distraught … and … inconsolable for most of the time”. She left the meeting at one point to try to compose herself. She was “overwhelmed with the emotion of having the letter ... made so public and the implications of what was mentioned in the … letter.” She said that Ms Chalkley was not present on that occasion. Invited by the court to clarify a point, Ms Morey affirmed that, between her return to work on 9 December 2013 and the ANMF meeting on 23 January 2014, she did not express a view adverse to the sending of the grievance letter at any open forum.

137    It was under cross-examination that Ms Morey’s state of mind in the period after 9 December 2013 came more fully to light:

And I suggest to you that the leaking – well, or the publication of matters from this letter in the press compounded your hurt, frustration and anger about the process?---Yes.

And I think you’ve described it as at 11 December, so two days after your return to work, you were devastated?---Yes.

You were overwhelmed with emotion of having the letter be made so public?---Yes.

And you were overwhelmed about the implication of what was said in the letter?---Definitely, yes.

And at this time, you were also upset that members of the staff hadn’t come to you with their concerns?---Yes.

Because that’s something that was very important to you as a manager?---Absolutely.

And at that time, you saw the emergency department as broken?---Sorry, broken? Probably not a word I would use. I was upset and devastated with that it had got to that point.

And you believed that it would take a significant time for that to heal?---Yes, that’s right.

Ms Morey adhered to her evidence that she had not spoken at the open forum on 11 December 2013.

138    In this part of the case, I accept Ms Morey’s evidence in preference to that of the applicant. The responses which Ms Morey readily gave to the applicant’s counsel under cross-examination, and which were presumably put to her on instructions, make the more credible her evidence-in-chief that she had been deeply affected by the letter and was in no state to be speaking to a meeting in the lecture theatre. I find that she did not do so on 11 December 2013.

139    In addition to the matters just discussed, the applicant relied on what was said to be a further early instance of Ms Morey’s antagonistic treatment of her. This related to the email of 18 December 2013 to which I have referred in para 33 above. The point is that this was the first time that Ms Morey had corresponded with the applicant in terms drafted by the human resources staff of the respondent, as distinct from drafting her own emails, which was her normal practice. The email of 18 December 2013 was said to be incompatible with her evidence-in-chief that her treatment of the applicant did not change after she received the grievance letter.

140    There is no merit in this submission. On any view, by forwarding the grievance letter to Ms Morey, the applicant placed herself in an environment which was more formal, and potentially adversarial, than she had ever before experienced in her interactions with Ms Morey. This was no day-to-day matter of operations within the emergency department. It concerned the respondent’s obligations as an employer under the enterprise agreement, in which setting Ms Morey’s email of 18 December 2013 was appropriately drafted by its human resources staff. There was nothing before 2 December 2013 with which this letter might reasonably have been compared. In my view, it represented neither a modification of the way in which Ms Morey interacted with the applicant nor an act by Ms Morey which detrimentally or prejudicially affected the applicant in any way.

141    The applicant identified other occasions in which Ms Morey treated her badly, as she claimed, but, since these post-dated the ANMF meeting on 23 January 2014, I shall deal with them later below. Otherwise, to the extent that the applicant’s allegations are to be understood as related to a generalised, non-specific, antagonism towards her on the part of Ms Morey, I reject them. Ms Morey was, after all, a manager, not a carer. Even so, such exposure as I had to her during the trial of this proceeding leaves me with the strong impression that the more extreme of the applicant’s allegations against her are quite unlikely to have been based in reality. Such objective evidence as there is of their interactions – emails between them, for example – disclose the taking of a friendly, informal approach by Ms Morey and did not contain a hint of hostility. Furthermore, the email of 18 December 2013 referred to in para 34 above was hardly the work of a manager who was hostile towards the applicant.

CONDUCT OF MS MOSEBY AFTER 2 DECEMBER 2013

142    In relation to Ms Moseby, in her Statement of Claim the applicant particularised the allegations referred to in para 27 above as follows:

The hostile conduct of Ms Moseby:

A.    included Ms Moseby:

i.    staring at the [a]pplicant during musters at the start of shifts;

ii.    saying to the applicant words to the effect of “you should be ashamed of yourself” in a hallway beside the staff tearoom; and

iii.    implying that the [a]pplicant was the “author” of the 2 December letter as stating in meetings/forums words to the effect that the author should have the guts to stand up and acknowledge the damage they had caused to our Ms Morey and the Dandenong ED team;

B.    damaged the [a]pplicant’s good standing in the workplace; and

C.    amounted to unreasonable behaviour towards the [a]pplicant creating a risk to her health and safety.

In further particulars later provided, the applicant said that the conduct referred to in item A.i. above included that “[o]n at least four occasions during a two week period (on 6, 10, 11 and 12 December), Ms Moseby pointedly stared at the [a]pplicant during musters”.

143    I shall deal with that allegation first. In chief, the only muster after 2 December 2013 to which the applicant specifically referred was one which Ms Morey and Ms Moseby both attended, and at which they stared directly at her. It is probable that the applicant here has in mind the muster referred to at para 131 above in the context of her allegations against Ms Morey. Since Ms Morey was on leave on 6 December 2013, the occasion referred to by the applicant could not have been that one. From there I would go to extracts from the respondent’s payroll program headed, “Absence & Shifts & OT Calendar” for 2013 and 2014 which were placed into evidence. They had the appearance of rosters, but they were not rosters. Rather, they were records of shifts which the applicant had actually worked and the absences which she had actually taken over the year concerned. I shall refer to them as the “shifts calendars”. According to the shifts calendar for 2013, the applicant worked a night shift (from 9:00 pm to 7:30 am) on each of 9, 10 and 11 December 2013. She would, therefore, have been at a muster at about 9:00 pm on each of those days, and also at about 7:00 am (marking the end of her shift) on 10, 11 and 12 December 2013. Ms Moseby worked part-time, either two or three days per week. She did not work on 6 December, she worked from 8:00 am to 4:30 pm on each of 10 and 11 December, and she did not work on 12 December. From this evidence, it appears that Ms Moseby would not have been present at any muster at which the applicant was also present, at least on the dates alleged by the latter. Under cross-examination on the subject of those dates, the applicant said that she may not have correctly given the exact dates, but Ms Moseby “most certainly did stare at [her]”. For her part, Ms Moseby denied the allegation, saying, “I don’t recall … staring at the applicant in any particular way at all.”

144    The applicant’s difficulty with this allegation, as it appears to me, is that it is not an allegation of a specific conversation or interaction as between herself and Ms Moseby. Neither does it relate to a specific event by reference to which Ms Moseby could orientate her recollections. The allegation is that Ms Moseby stared at the applicant pointedly. It is hardly surprising that, without the provision of particular dates and times, Ms Moseby would have no idea what the applicant was talking about. It is in that context that the improbability of the muster in question falling on any of the dates nominated by the applicant carries significance. It is, in my view, no answer for the applicant to say that she may not have correctly given the exact dates, since those were the dates by reference to which she went to trial, and the respondent undertook the preparation of its defence.

145    In the light of those considerations, and against Ms Moseby’s denial, I am not prepared to uphold the applicant’s allegation that Ms Moseby pointedly stared at her at one or more of the musters held in the period after 2 December 2013.

146    Turning to the applicant’s allegation identified as item A.ii. in her particulars, it was submitted at trial on her behalf that the evidence sustained a finding that, on one occasion within about two weeks of 2 December 2014, on passing the applicant in the hallway Ms Moseby said something to the effect that she should be ashamed of herself, called the applicant a “bitch” and accused the applicant of leaking the grievance letter to the media; and that comments much to the same effect, passed in broadly the same context, were repeated by Ms Moseby on about two other occasions at that time, making a total of three occasions when she spoke in this way about the applicant, and within her hearing.

147    In chief, the applicant said that “on one occasion, on passing [Ms Moseby] in the hallway, she said words to the effect that I should be ashamed of myself”. Asked to describe other interactions which she had had with Ms Moseby after 2 December, the applicant referred to the conduct alleged at the musters, with which I have dealt above. After that, the applicant was asked whether she could recall any other examples of interactions which she had had with Ms Moseby after 2 December, and said that she could not. Asked if there was anything that she would like to add about her recollection of Ms Moseby’s treatment of her “in general”, the applicant said:

It was abhorrent. It was unprofessional, and it was vulgar. In the instance where I said that she walked past me and – and said that I should be ashamed of myself, she also called me a bitch, and she – when – when there were instances when I walked near her and – and there was no witnesses, again, there was the use of foul language. So just under the breath, sort of, just so that I could hear. And she also said, you know – she – she accused me of leaking the letter to the – to media.

Apropos that last aspect, the applicant said that it was not something said by Ms Moseby in passing, it was said in one of the meetings that the nurses had. Asked to recall more specific details of what Ms Moseby said under her breath, the applicant said, “it was generally the same language of, ‘you bitch’, or ….” This occurred three times, either in the emergency department as such or in the hallway which led to the toilet which the nurses used and on to which Ms Moseby’s office gave. The applicant did not report Ms Moseby’s conduct to Ms Morey, but she did mention it to friends of hers on the nursing staff, and to her husband.

148    To have called the applicant a “bitch” would, in my view, have been a most offensive thing for Ms Moseby to have said, particularly given the latter’s supervisory role with respect to the former. Correspondingly, it could hardly have been something the applicant overlooked, or perceived only as an element of some more generally-expressed rubric, in the preparation of her allegations against the respondent. As mentioned above, there are instances in this case in which the conduct of other senior nurses, far less egregious than calling her a “bitch”, caused the applicant to pen a detailed complaint to Ms Morey. The applicant was not cross-examined along these lines, so I do not take into account her failure to complain at the time, but it was squarely put to her that, as this allegation appeared neither in her Statement of Claim nor in the particulars which she provided, it had been recently invented. Save to adhere to her evidence, the applicant had no satisfactory response to this line of cross-examination.

149    For her part, Ms Moseby denied this allegation. Counsel for neither party was able to take the matter any further, since the allegation was only very generally located in time, space and context, and was said to relate to an occasion when only she and the applicant were within earshot. The first anyone heard of the allegation was when it fell out of the applicant’s evidence-in-chief on 6 September 2016, a little more than two years and eight months after the alleged event itself. In the circumstances, I have reached the conclusion that this “bitch” allegation was indeed a matter which the applicant invented subsequently to the commencement of this proceeding. I accept Ms Moseby’s denial, and find that she did not call the applicant a “bitch” as the latter now alleges.

150    The allegation that Ms Moseby told the applicant, sotto voce as it were, that she should be ashamed of herself was particularised, although it is not clear to me that the location of the alleged events – a hallway beside the staff tearoom – corresponds with the evidence which she gave. The difficulty for the court, however, is this. The applicant gave evidence-in-chief much as I have referred to it above, and was not cross-examined specifically about the matter. She was cross-examined by reference to an understanding that her evidence had been that Ms Moseby had said this thing at the open forum on 11 December 2013, and she (the applicant) readily agreed that she (Ms Moseby) did. Counsel for the respondent put it to the applicant that that did not occur – as well he might, since it had not been the applicant’s evidence-in-chief that it was said at the forum. But the question whether Ms Moseby had said it in the time and circumstances proposed in that evidence was not explored. In chief, Ms Moseby provided a direct denial, but the cross-examination of her by counsel for the applicant related, relevantly, to what his client claimed had been said at the ANMF meeting on 23 January 2014, a matter to which I shall come below. There was no attempt to unpick Ms Moseby’s denial of having told the applicant that she should be ashamed of herself in the general course of their comings and goings in the emergency department. On both sides, I would have to say, there was little or no attention given to undermining the evidence of witnesses whose versions of the relevant events were 180 degrees apart.

151    As with the “bitch” allegation, the “ashamed of yourself” allegation involved something claimed to have been said by Ms Moseby at times and places, and in contexts, identified at only the most general of levels. Again, only Ms Moseby and the applicant were said to have been within earshot. Ms Moseby denied the allegation. There is absolutely no objective basis upon which the court can resolve the conflict between them. It is often tempting to perceive the witness who claims to have a recollection of something actually done as more likely to be telling the truth than another witness who denies it on the basis that he or she has no recollection of it, but that can be taken only so far: the best reason for not recalling a thing is that it did not, in fact, happen.

152    This is a serious allegation, and, in deciding the matter on the probabilities, I must take into account the gravity of it: Evidence Act 1995 (Cth), s 140(2)(c). I am not satisfied that Ms Moseby spoke as the applicant alleges.

153    All I need to say about item A.iii. in the applicant’s particulars is that there is no evidence that Ms Moseby said, or said anything which carried the implication, that the applicant, as the author of the grievance letter, should have the guts to stand up and acknowledge the damage which she had caused to Ms Morey and the emergency department team. Ms Moseby denied it, and was not cross-examined on that denial.

154    The applicant’s factual case against Ms Moseby was not so much that, in their day-to-day interactions, Ms Moseby generally changed the way in which she treated her, became more hostile to her, and the like, but that there were individual occasions when Ms Moseby acted offensively or injuriously to her. I have rejected that case. Although I recognise, and it was effectively common ground, that the congeniality of the atmosphere in the emergency department suffered as a result of the grievance letter and the attendant media publicity, I could not find that, in the occasional interactions which the applicant had with Ms Moseby, the latter said or did anything that came remotely close to altering the applicant’s position to her prejudice, injuring her in her employment or discriminating against her.

CONDUCT OF MS CHALKLEY AFTER 2 DECEMBER 2013

155    The applicant particularised Ms Chalkley’s hostile conduct towards her as follows:

i.    At numerous shifts after 2 December 2013, Ms Chalkley spoke to the [a]pplicant aggressively and rudely and on three occasions, yelled at her:

1.    once in the resuscitation area for the way the [a]pplicant categorised a patient;

2.    once at triage for having allocated patients to the same treatment team; and

3.    once at the meeting specified in the next paragraph;

ii.    On about 23 December 2013, at a meeting attended by the [a]pplicant and other nurses, Ms Chalkley disparaged the [a]pplicant by, yelling at her words to the effect that a certain job representative had destroyed the Emergency Department;

iii.    In about January or February 2014 the applicant was a team leader in the resuscitation area; it is standard practice for the NIC on a shift to communicate information to the team leader; however, Ms Chalkley, who was acting NIC at the time, passed information (a treatment plan for a patient) on to Ms Cathy Tran (registered nurse /clinical nurse specialist) with the result that the [a]pplicant was unaware of the treatment plan, even though she was the team leader ….

The “meeting specified in the next paragraph” was, I take it, the meeting held on or about 23 December 2013.

156    The applicant’s final submissions were not obviously organised along the lines foreshadowed in the particulars set out above. Nothing was said about the categorisation of a patient in the resuscitation area; nor about the allocation of patients to the same treatment team at triage. The only two matters that were the subject of specific attention were the allegations as to what Ms Chalkley had said at the meeting on 23 December 2013 – which was one of the open forums conducted by the respondent – and as to information having been passed on to another nurse when the applicant was the relevant team leader.

157    Additionally to those two matters, to which I shall come, it was submitted on behalf of the applicant that, after 2 December 2013, Ms Chalkley’s manner in her dealings with the applicant was “extremely confronting and rude”, and that her tone of voice and language were abrupt, often to the point of yelling instructions rather than helping the applicant to address the issues as to which she was seeking assistance. The evidence-in-chief on which this submission relied was the following:

Can you explain to the court what you did observe in terms of any changes in attitude towards you from Ms Chalkley?---Ms Chalkley in – in any discussion with me from that time onwards, so from the period when the grievance letter was sent - - -

That being 2 December 2013?---Yes. From that time if she had anything that she needed to speak to me about or if I approached her regarding anything at work, her manner was extremely confronting and rude.

Can you – I’m sorry?---So by that mean – I mean her – her tone of voice and language was abrupt, often to the point of – of yelling instructions at me or sort of yelling at me to – to deal with things, and – and not helping me address the issues that I was requesting from her with help.

Do you have any recollection of specific examples where that occurred?---Sorry. I’ve – I – I’ve just gone blank for a moment.

Assisted by her counsel, the applicant proceeded then to give evidence about the two specific instances of what was claimed to have been a change in the way in which Ms Chalkley related to the applicant.

158    At the general level, however, Ms Chalkley denied the applicant’s charges. Under cross-examination, she denied that, in the course of her ongoing interactions with the applicant in the emergency department, she was rude to the applicant, or abrupt to the applicant, or yelled at her. As to the latter, she said that she had never yelled at the applicant, and the matter was not pursued by counsel for the applicant. She rejected the proposition that, when the applicant went to her for assistance, she “point blank refused to help her”. That too was allowed to rest where it fell after Ms Chalkley’s answer. The court was left, therefore, with the applicant’s own elaboration of the circumstances in which such rude and confronting language was claimed to have been used by Ms Chalkley. If the claims are not made good in those specific areas, I could not make findings against Ms Chalkley at the more generalised level.

159    The first specific instance of what was claimed to have been a change in the way in which Ms Chalkley related to the applicant was what counsel for the applicant referred to as the “handover issue”. In chief, the applicant said that, on a particular occasion, Ms Chalkley was the NIC. As such, she would be responsible for passing on any information about the patient for whom the applicant and Ms Tran were caring in the resuscitation area. The patient was, it seems, to be transferred. Normally, the required transfer information would be conveyed by the NIC to the team leader for the care of the patient, which the applicant was on the occasion to which she referred. What happened on that occasion was that the information was given not to the applicant but to Ms Tran, so that, when the ambulance crew arrived, the applicant could only look blankly at them. It was Ms Tran who did the handover. This episode humiliated the applicant because it made her look unprofessional for not knowing what was occurring with the patients who were under her care.

160    Under cross-examination, the applicant accepted that Ms Tran, a CNS, was two years her senior. She accepted that, at the time when Ms Chalkley came to hand over the information about the patient, it was possible that she herself was not physically present at the cubicle concerned. Subject to that, there was no serious contest to the applicant’s evidence. I did not understand counsel for the respondent to propose that it would not normally have been the team leader to whom handover information was given.

161    Ms Chalkley made no reference to this occasion in her evidence-in-chief. But she was taken to it during cross-examination, and had no difficulty recalling it. She said that she went to the resuscitation area, where the only person she could see was Ms Tran. So she passed on the relevant information to her. She made no attempt to locate the applicant. She could not remember what the actual information was. She accepted that the preferred person to receive information about a patient was the team leader, but only “if they’re available”. She did not know where the applicant was. The reason that she did not seek the applicant out was that she gave the information to the first person she saw, Ms Tran. She denied that she proceeded in that way because she was angry at the applicant for her involvement in preparing and sending the letter of 2 December 2013.

162    In this area of the case at least, the objective facts are uncontroversial. The thrust of Ms Chalkley’s evidence is that the information would normally be given to the team leader, but it might alternatively be given to any available nurse working in the area concerned. There was no serious challenge to this evidence, or to her evidence that she passed the information on to Ms Tran in this instance because she was available and the applicant was not. The suggestion, made to Ms Chalkley during cross-examination, that she proceeded as she did because she was angry at the applicant was, I would have to say, both tokenistic and unconvincing. There was nothing in the evidence – even in the applicant’s evidence – to sustain it. What happened was, I would find, an innocent and unremarkable aspect of work in the emergency department. Relevantly, Ms Chalkley’s conduct could not be characterised in the negative way proposed on behalf of the applicant. And it most certainly cannot be viewed as marking out a point of departure from the way the applicant would have been treated by Ms Chalkley before 2 December 2013.

163    The second instance related to Ms Chalkley’s conduct at an open forum in (using the words of counsel examining the applicant in chief) “mid-December 2013”. The applicant’s evidence was that, at that forum, Ms Chalkley said that the emergency department was “broken and needed to be repaired, and it was going to be a long time before trust was reinstated”. Ms Chalkley also said that the writer of the letter should admit that they did not show everyone the letter, and that only junior staff were shown the letter.

164    During the cross-examination of the applicant, counsel for the respondent was under the impression that she had given evidence-in-chief that, at the open forum on 11 December 2013, Ms Chalkley had said that the writer of the letter should be ashamed. The applicant had not given that evidence, but she readily asserted that she did recall Ms Chalkley saying that, and held to that evidence over counsel’s suggestion that it was wrong. The applicant said that a number of people spoke at the meeting, and that it became, in her word, “animated”. The applicant rejected the suggestion that the only thing said by Ms Chalkley at the meeting was something to the effect that the emergency department was not for everybody, but she volunteered that Ms Chalkley did say, as the applicant paraphrased it, that, if people could not manage working in the emergency department – a busy place where the work was hard – then maybe they should look to work somewhere else. The applicant accepted that Ms Chalkley had said something to the effect that staff needed to consider whether working in the emergency department was for them, as it was only going to get busier. But, to the suggestion that the only contribution made by Ms Chalkley was to the effect that the emergency department was only going to get busier, and it was not for everybody, the applicant’s response was, “that’s not how it came across.”

165    In chief, Ms Chalkley said that she did attend some forums – “maybe two or three” – that had been called to discuss the matters referred to in the grievance letter. She could not recall when they were held. At one of them, Mr Sivarajah talked about the emergency department, how busy it was, how the numbers were going to increase, and how it had been built to allow for population growth. From other evidence in the case, I think it likely that this was the open forum held on 23 December 2013. When Mr Sivarajah had finished, Ms Chalkley said, “maybe some people need to figure out if emergency is for them, because it’s only going to get busier.” She addressed that comment to the meeting, rather than to anyone in particular. She did not refer to anybody by name. She did not say anything about the grievance letter. She made no observation about the state of the emergency department. And she made no comment about the ANMF, or about job representatives.

166    Under cross-examination, Ms Chalkley rejected the proposition that she directed her comment – about some people needing to figure out if nursing was for them – to the applicant: indeed, she said that she was sitting in front of the applicant in the theatrette, and she looked forward as she was speaking. She said that her comment was directed to “all the people who were saying that it was a difficult place to work – that it was too busy; that having patients come in and out of cubicles ….” She denied that she had said that the emergency department was broken (and she elsewhere denied that it was her view that it was broken), that it would take a long time before the trust was reinstated, or that the writer of the letter should admit that they did not show everyone the letter, and that only certain junior staff were shown it.

167    Ms Morey gave evidence on the subject of present interest. She said that the forum at which Ms Chalkley made a contribution was not the first one on 11 December 2013, it was the second forum. Mr Sivarajah had discussed the business and workload in the department, and Ms Chalkley said something to the effect that the emergency department was only going to get busier and if people could not cope working in a busy environment, then perhaps they should not work there. This comment was addressed “to the whole room”, not to anyone in particular. Ms Morey was not cross-examined on this evidence. Ms Morey was not asked, either in chief or under cross-examination, whether Ms Chalkley had said the things alleged by the applicant in this case.

168    In the result, notwithstanding that the open forum to which the applicant referred in her evidence-in-chief must have been attended by many nurses, I have only the applicant’s, Ms Chalkley’s and, to a very limited extent, Ms Morey’s, evidence to assist me in the resolution of the factual issues involved. One objective matter which must provide the background to that resolution is that there were several meetings in the weeks which followed 2 December 2013 – meetings where feelings ran high and many people made contributions. Ms Chalkley’s contribution on the occasion of the second open forum about the emergency department becoming more busy, and the consequences of that, has become something of a distraction for the court, since it did not correspond with anything said by the applicant in her evidence-in-chief. As to what the applicant did say, the words in question correspond closely, if not exactly, with some of the things that were later said at the ANMF meeting on 23 January 2014, particularly by Mr Connell (see para 189 below). I consider it quite possible that the applicant was here confusing things said at different meetings by different people, but, since the matter was not explored with the applicant in cross-examination, I do not make a finding to that effect.

169    The evidence is unsatisfactory at a number of levels, but, against Ms Chalkley’s denial, I could not make a finding in the terms of the applicant’s own evidence. I reject so much of the applicant’s case as invites me to find that, at any of the meetings in the relevant period, Ms Chalkley said that the emergency department was broken and needed to be repaired, that it was going to be a long time before trust was reinstated, that the writer of the letter should admit that they did not show everyone the letter, and that only junior staff were shown the letter.

170    It will also be clear from what I have said that the evidence – even the applicant’s own evidence – provides no warrant for a finding that, at an open forum, Ms Chalkley yelled at the applicant in words to the effect that a certain job representative had destroyed the emergency department.

171    To the extent that they relate to Ms Chalkley, I reject the applicant’s allegations referred to in para 27 above. Nothing in the way that Ms Chalkley interacted with, spoke to or spoke about the applicant altered her position to her prejudice, injured her in her employment or discriminated against her.

THE ANMF MEETING ON 23 JANUARY 2014

172    I deal here in more detail with the matters referred to in para 38 above.

173    I should say at the outset that the tone of the meeting on 23 January 2014 was, inevitably as it seems to me, set by the unusual and ambiguous circumstances which surrounded the preparation of the grievance letter of 2 December 2013. The idea of sending such a letter had come from the ANMF meeting on 15 November 2013, at which a small fraction of the membership, and only one of the three job representatives, had been present. It would not have been problematic for one or more of the nurses at that meeting to have decided to lodge a grievance about their work in the emergency department. But the process which followed went much further than that. It was in her capacity as an ANMF job representative that the applicant prepared and submitted the letter. The signatures which she collected on the letter were not confined to those of the nurses who had attended the meeting. The applicant was undoubtedly acting in her representative capacity, rather than as one of a number of individuals. Yet she did not extend to all of the nurses in her constituency the opportunity to provide an input into the letter. Indeed, she seems to have been at pains to ensure that only a limited number of nurses would even know that the letter was being prepared. Although it was their own choice not to attend the meeting on 15 November 2013, the exclusion of Ms Graham and Ms Tran from the process was, on any view, most unfortunate. Whatever the applicant’s reasons for proceeding in this way, for her to have excluded her two colleagues, who had presumably been chosen by nurses in the emergency department to be their representatives, was, in my respectful view, indefensible. That there came to be a sense of resentment in the department as to the process employed in the preparation of the letter was, in the circumstances, not only unsurprising, it was inevitable.

174    This was the background to the perception held by all who gave evidence about the ANMF meeting on 23 January 2014, that the grievance letter had split the emergency department in two. On any objective assessment of the applicant’s project, there could not have been any other result. If the applicant felt the ire of other nurses at the meeting, it was, surely, no more than she ought reasonably to have expected. In this proceeding, she has taken the contributions of two of them, one an ANUM and the other a CNE, as the subject of allegations of unlawful conduct for which she seeks to hold the respondent responsible. With respect to those involved in advising the applicant so to proceed, this is an adverse action case with a difference.

175    Turning to the evidence, the ANMF itself was represented at the meeting by Mr Gilbert, Ms Smith and Megan Reeve, an industrial officer. They sat at a table at the front of the lecture theatre.

176    As to the course of the meeting, I commence with Ms Smith, as she made a file note, the following day, about the meeting. I shall refer to that presently, but, in her oral evidence, she said that, at the start of the meeting, Mr Gilbert spoke about occupational violence and aggression; and “the history of where we were at with the emergency department and the concerns that were raised by the members in the months prior.” Then he mentioned the report from Ernst & Young, and the investigations which the respondent itself had undertaken, into the allegations in the grievance letter of 2 December 2013. From there, “the meeting quickly went into discussions from staff … about their concerns of what that process had done to the department.” At first, the members raised matters to which Mr Gilbert and Ms Smith herself responded, based on meetings which they had had with management. Then, “it appeared to be a to and fro from members within the meeting.” The applicant was distressed. She made it clear that the grievance letter was not hers – it had been put together by a group. Ms Morey said something to the effect that “the unit had been broken, that it needed to rebuild”. In saying that, Ms Morey was speaking towards the front of the lecture theatre, where the applicant was sitting. In Ms Smith’s perception, in her mannerisms and the way she spoke, Ms Morey conveyed “a feeling of blame towards that area of the room”, and “a concern that the letter that had come from the staff had created such an issue for the unit that … she didn’t feel that it could recover.” Mr Connell was very angry towards the ANMF at first, asking, “Are you going to drop this now? Is that enough? We don’t want to do this anymore”. The gist of his view was that the ANMF ought to leave the allegation of data manipulation alone and move on; there had been an audit, and that ought be the end of it; and damage had been done to the department, and it was time to move on. Looking towards where the applicant was sitting, he said that, if the Ernst & Young report had found that allegation not to be valid, then the grievance letter should be changed. Asked in chief what Ms Moseby had said, Ms Smith said that “they were all along the same lines about, ‘It has got to stop. You’ve hurt the department. You’ve got to take it back. You’ve forced people to sign’.” In saying “they were all along the same lines”, Ms Smith meant to convey that the contributions of a number of those present, including Ms Moseby, were along the same lines. Counsel for the applicant pressed her to recall what Ms Moseby specifically had said, but Ms Smith’s response was, “it was clear to me that both [Ms Morey] and [Mr Connell] had made the assumption, and it appeared to be the assumption that carried on for some time – that [the applicant] had written a letter and had signed – had made people sign the letter.” When asked what it had been that gave her that impression, Ms Smith said that it was because the speakers were “directing” to the applicant. Asked if she had any recollection of the words used, Ms Smith said, “Not a clear recollection, but it was along that line.”

177    It appeared to Ms Smith that, in its “culture and the collegiality”, the emergency department had effectively fractured into two camps, one of which was associated with the applicant and the other of which was associated with Ms Morey (the latter including Mr Connell and the other two ANMF job representatives, Ms Graham and Ms Tran).

178    Ms Smith’s file note, which she stressed was based on her recollection rather than being “descriptive”, was as follows:

Brief report of events to date given by Nicole Smith

•    Members meeting 31/10

•    Resolution to management

•    DTC collective grievance

•    ANMF meetings with many individual units

•    Consultative committee meeting with management 19 Nov 2013 - not effective/adversarial

•    Collective grievance ED

•    Letter leak to Herald Sun

•    Internal investigation

•    Ernst & Young investigation

•    Correspondence exchange from ANMF/MH

•    Meeting with Siva scheduled for early Feb

PG

Discussed pressure on bed numbers across state and what consequence it had for nursing care. Discussed Frances report

Members

•    Teary

•    Expressing anger at ANMF

•    Broken and fractured unit

•    Issues starting to be dealt with since the letter

NS

•    Confirmed ANMF involvement was to assist with the grievance process. Management had not been listening to any of the complaints and members requested assistance

•    MH have listened to staff with internal investigation and it was out understanding that focus groups have been initiated to deal with the major themes of the complaint

•    Of concern is that the current climate is one of blame rather than looking at the issues and trying to resolve them

•    Communication is the key

•    DH consultative committee meetings now ensured via exec to occur every month (last year they were cancelled every time scheduled by Danddnong hospital management)

•    Of further concern is that at the Network consultative committee meeting DON suggested that all was well at DH, all staff were happy. This is not reflective of the issues that members are calling the ANMF with

PG

•    Discussed suggestion of external mediator/relationship builder for unit would be made with Siva

•    That ANMF would still request clarity surrounding the audit. As per the media release ANMF remain unconvinced that a full and transparent audit could occur when 85000 records were viewed and only 4 staff (1 x signatory to letter) were interviewed)

Many questions and statement of anger made by nurses from ED

Job rep upset that not all were kept in the loop. Discussion of confidentiality, collective grievances was had

(errors in original)

179    Mr Gilbert gave evidence, but his recollection of the meeting on 23 January 2014 was so general, and his ability to identify the personalities involved and their various contributions so imperfect, that I have found the evidence of no assistance in resolving the issues in the case which arose from that meeting. To the extent that the applicant might otherwise have been criticised for not calling Mr Gilbert, that criticism is not available.

180    I turn next to the evidence of the applicant. She said that, at the meeting, she sat “about midway back, just on a corner seat.” Asked what she recalled of the meeting, she commenced by referring to Mr Connell’s contribution. He was at the back of the meeting with Ms Morey, Ms Moseby and some of the other educators. He expressed his disgust that the ANMF had caused a grievance letter to be written without Ms Morey having been apprised of what was in the letter before it was sent. He said that Ms Morey had been taken by surprise by the information in the letter, adding that he was very concerned for her welfare. He said that the release of the letter to the media had broken the department. He said that the trust of patients, and as well as the trust existing within staff relations, had been compromised. He also expressed the view that the morale of the nursing staff and management staff “was at a great low”. He expressed concern for the ongoing workings of the emergency team. He said that both the author and the ANMF had acted irresponsibly, which had had a detrimental effect on Ms Morey’s health. The applicant said that Mr Connell’s remarks were directed towards Mr Gilbert and the other ANMF officials sitting at the desk at the front of the meeting.

181    The applicant then related what had been said by Ms Moseby. She (Moseby) said that “the author should be … disgusted with themselves or embarrassed that they’ve written this letter.” She said that the information in the letter was inaccurate, and that the ANMF should withdraw the comments made in the letter regarding Symphony and the four-hour KPI. She said that the results of the Ernst & Young audit were not “in keeping” with the grievance letter. She said that the author of the letter should be ashamed of herself, and embarrassed. She said she was disgusted. She reiterated a lot of what Mr Connell had said. She pointed out that people had not had the chance to see the letter; and that senior staff had been intentionally kept from viewing the letter. Most of the time while speaking, Ms Moseby was looking at the applicant, who herself was looking at Ms Moseby because she was the speaker. She was “quite animated and her tone was quite angry towards not only the ANMF people, who she was addressing at times, but also towards the author of the letter ….”

182    The applicant said that Ms Morey was visibly upset at the meeting on 23 January 2014. She asked the ANMF officials why they had not helped her during this difficult period. Mr Gilbert asked her whether she had contacted the ANMF, and she replied in the negative. Mr Gilbert said that the ANMF would have more than willingly helped and assisted her if she had contacted them. Ms Morey “expressed a great deal of anger to the person who wrote the letter”. She said, “The ANMF have helped Kelly all the way through this, and nobody has been helping me.” Mr Gilbert indicated that the ANMF were available for her if she needed any help. Ms Morey said that people should work on what needs to be worked on, and that the emergency department should all come together as a unit.

183    On 6 February 2014, the applicant sent the following electronic message to a nursing colleague of hers:

Tanya was an absolute disgrace at the anf meeting when Paul Gilbert attended a week or so ago. It was disgusting. I will have to tell u when I see u but it was full on and she and Leslie Cathy cliff just ripped into the anf and me for a solid hour and a half and Tanya wanted the anf to apologies and admit they were wrong about us falsifying disch times. While we all sit there knowing we have all been asked to do it ffs. Leslie said she wanted to make it known that she knew a certain other job rep had bullied people on the floor to sign the letter and was lying to people about the independent audit as she knew people had been asked to be interviewed for it and refused. The … industrial chick who went with me to the meeting said to her that’s odd because we have it in writing from Ernst and Young that Kelly was the only signatory interviewed or asked to be interviewed other that 3 staff members who’s names were supplied by management. She was like oh oh well that’s not what I’m being told. Nicole was like well maybe u should get your facts straight before the Union spread incorrect information about other staff and the situation

(errors in original)

“Tanya” was Ms Moseby, “Leslie” was Ms Graham, “Cathy” was Ms Tran, “cliff” was Mr Connell and “Nicole” was Ms Smith. The “industrial chick” was the ANMF industrial officer who had accompanied the applicant to her interview with Ernst & Young.

184    I turn next to Ms Morey’s evidence. She said that she arrived at the meeting in the company of an NUM (like herself, a member of the ANMF) from another area of the hospital. They sat in about the middle of the tiered lecture theatre. Ms Morey recalled that, when the applicant entered, she sat in the front, or second-front, row. She said that Mr Gilbert started the meeting with some general comments, including a report on the work which the ANMF had been doing on the number of closed beds in the State, after which the conversation came to the emergency department. Ms Morey described the mood in the room as “sombre”.

185    According to Ms Morey, Ms Smith spoke about the concerns which the ANMF had about the breadth of the Ernst & Young report. Mr Gilbert made the point that there was a distinction between data being inaccurate at times, on the one hand, and data being systematically manipulated, on the other hand. A number of people then spoke. Ms Morey recalled that one of the nurses, Janet Hamilton, said that she was upset and saddened that there was a division in the department, and that the letter had caused that. She said that another nurse, Sue Taylor, said that she felt that a resolution had been “starting to happen” since the ANMF became involved, that the model of care change had come in very quickly, and that staff were still trying to get used to the changes. She recalled Mr Connell making a contribution, and said that he spoke very well. He wanted the department to move on, and to try to join together for a better outcome for the staff. Under cross-examination, Ms Morey rejected the suggestion that he was angry or aggressive. He spoke in a calm manner. He mentioned the division in the staff which had resulted from the letter having been made public. Ms Morey herself spoke at the meeting. She said that she did not want the letter to continue to divide the staff, that she wanted the staff, as a group of people, to be able to move on and work towards a resolution, and that they were never going to be able to move on as a team if they let the letter be the issue that divided them. Ms Morey said that she directed her comments to everybody in the room, not to the applicant. She did not mention the applicant. She recalled that Ms Moseby spoke, but she did not recall what she said.

186    During the meeting, Ms Morey made some “dot point notes” on her mobile phone. Those notes, and Ms Morey’s explanation of them given in her evidence, follow below:

    Closed state beds

Discussed by Mr Gilbert as mentioned above.

    Talking about manipulating data.

Discussed by Mr Gilbert and Ms Smith as mentioned above.

    Concerns about EY report times frame scope.

Mr Gilbert and Ms Smith were talking about the timeframe in which the Ernst & Young review was happening and the breadth of their report.

    Meeting with Siva.

That was Mr Sivarajah, the Chief Operating Officer of the respondent.

    Lack of depth of investigation.

That was Mr Gilbert or Ms Smith speaking of their concern about the depth of the investigation (Ms Morey was unsure whether this was a reference to the Ernst & Young investigation, the internal investigation, or both).

    Kim states patient still in beds 10 mins after LD time.

That was Kimberly Mifsud, a registered nurse in the emergency department. “LD” was Ms Morey’s abbreviation for “left department”, and “LD time” was the time recorded in Symphony as when a patient had been discharged from the emergency department. What Ms Mifsud was saying, in other words, was that patients were still physically in the department 10 minutes after it had been recorded on Symphony that they had left.

    Paul state[s] doesn’t never happen stats will be manipulated. Does it happen rarely, regularly or all the time.

It was at this point that Mr Gilbert acknowledged that there would be times when it would be recorded that a patient had left the department when that had not occurred, but he was questioning whether it happened rarely, regularly or all the time. Was it the manipulation of data or something that happened on occasions?

    Early discharging, discharge lounges

As a part of the ward improvement processes, there was a focus on discharging patients earlier in the day than what had usually been happening. The wards were trying to discharge patients well before 10 am to create capacity at the beginning of the day for incoming patients. A discharge lounge was a specified area within the hospital, not under the “governance” of the emergency department, to which the wards would discharge their patients.

    Sue T. MOC changed [very] quickly. Since ANMF involved more proactive approach much better.

A reference to Ms Taylor’s contribution as mentioned above.

    Cliff spoke very well about changes.

A reference to Mr Connell’s contribution as mentioned above.

    Kelli hands in head.

A reference to the applicant having, as I would understand it, her head in her hands.

    What is end point

Ms Morey did not recall why she made that note.

187    In her evidence, Ms Morey estimated that five or ten minutes were occupied in discussing the rights and wrongs of the letter, within which period she made her own contribution, referred to above.

188    In her evidence, Ms Moseby said that she entered the lecture theatre with Mr Connell (and another companion) and they seated themselves a couple of rows behind Ms Morey. She noticed the applicant sitting right at the front. She described the mood in the room as “apprehensive”, and that there were people there with “very different opinions”. She said that the secretary of the ANMF (whose name she could not recall, but it was clearly Mr Gilbert) said that the initial auditing of the Symphony process and backdating times had revealed that the times had actually not been backdated. But he added that they (presumably the ANMF officials) were not “happy that the audit had come out like this and they were going to get the auditor audited”. At that point Ms Moseby herself said, “Well, when does this stop? Are you going to …”, when she was interrupted by Mr Connell who said, “Where will this stop?”. When Ms Moseby spoke, she did not look at anyone in particular, but addressed her remarks to the ANMF officials at the front of the room. The tone and volume of her voice were, she said, about the same as when she was giving evidence in court. She did not mention anyone by name. Under cross-examination, she emphatically rejected the suggestion that she had said that the author of the letter should be disgusted with themselves or embarrassed that they had written the letter. Indeed, she rejected the suggestion that she knew, at the time of the meeting, that the applicant had been the author of the letter. She rejected the suggestion that she said that the information in the letter was inaccurate and that the ANMF should withdraw the comments made in the letter, including comments relating to Symphony and the four-hour KPI; and that she had said that the author of the letter should be ashamed of herself and embarrassed and that she was disgusted that people had not had the chance to read the letter. She accepted that, at the time, she did believe that people had not had that chance, but she said that she was “disappointed” about that rather than “disgusted”. She was disappointed, she said in her evidence, “at the letter and the way the letter was handled” and (in this respect accepting the way it was put to her by counsel) “about the way the letter had been handled because the process that was followed, in [her] view, broke the department.” But she did not express that sentiment at the meeting. As to Mr Connell, Ms Moseby said that he spoke in his “normal tone”, albeit that he was “passionate” in expressing his concern about “where do we go from here if we’re going to do the same steps of auditing auditors?” When Mr Connell spoke, he addressed the room, rather than anyone in particular. Ms Moseby did not recall Ms Morey saying anything at the meeting.

189    Mr Connell gave evidence about the meeting. He said that he arrived unaccompanied, and sat “probably around the centre of the lecture theatre: maybe just a touch towards the back.” He recalled Ms Morey being at the meeting, but he could not recall where she was sitting. During the meeting, he did not see the applicant: he noticed her only when the meeting had finished. Mr Connell said that much of the meeting was occupied with Mr Gilbert discussing the Ernst & Young audit, saying that it had not been enough, and that more was needed. The ANMF did not agree with the results of the audit. Mr Connell himself spoke towards the end of the meeting. The subject of his contribution was to ask, what else did they want? There had been an independent audit of some of the allegations in the letter, and that had “come out as negative”. No discrepancies had been found, “but the ANMF still wanted more.” He said that they had “quite a bit of work to do to put our team back together.” Under cross-examination, he accepted that he may have said that the department had been broken, but he rejected the suggestion that he had indicated that he was disgusted that the ANMF had caused the grievance letter to be written without Ms Morey having been apprised of the details of it. He did not recall referring to the letter having been released to the media. He did not recall saying, but he thought he did not say, that the trust of patients, and the trust within staff, had been compromised. He rejected the suggestion that he said that the author of the letter should have approached Ms Morey. Indeed, while he had heard that the applicant had collected signatures for the letter, he did not know that she had drafted the letter. He rejected the suggestion that he said that both the author of the letter and the ANMF had acted irresponsibly, and that that had had a detrimental effect on Ms Morey’s health. Mr Connell directed his comments to the ANMF officials at the front of the lecture theatre. The volume of his voice was, he estimated in his evidence, probably a bit louder than he was using in the witness box, because he was in the middle of a large lecture theatre. The tone of his voice was “quite emotional … if anything, … probably a pleading tone.” By “emotional” Mr Connell meant that his tone was “close to tearful”, or “quivery”, rather than angry: “more through, if anything, sadness, I guess, would be the most appropriate emotion”. In fact, he rejected the suggestion put to him under cross-examination that he had been angry in the meeting. Mr Connell did not recall either Ms Morey or Ms Moseby speaking at the meeting: indeed, he said that he did not see Ms Morey at the meeting.

190    In this part of the case, the applicant’s allegations are as follows:

On or about 23 January 2014:

a.    Ms Moseby demanded that the ANMF and the author of the 2 December 2013 letter admit that they had lied about staff backdating discharge times and removing patients from the “Symphony” IT system; and

b.    Ms Moseby and Mr Connell berated the applicant for preparing and sending the 2 December 2013 letter of complaint ….

Despite the substantial volume of evidence that was led about what had been said at this meeting, the applicant’s allegations focus on particular contributions alleged to have been made by Ms Moseby and Mr Connell.

191    It is difficult to trace the course of the meeting on 23 January 2014 by reference to the recollections of participants given so long after the events concerned. Even the contemporaneous jottings of Ms Morey, and the roughly contemporaneous notes of Ms Smith, do not line up sufficiently to provide a consistent picture. But I would accept Ms Morey’s jottings, made at the time as they were, as the more reliable source. The sense I get from them is that it was only after considerable discussion, and contributions from those who appear to have been sympathetic to the position expressed in the grievance letter of 2 December 2013, that anything was said that implied criticism of that position. The contributions of Ms Mifsud and Ms Taylor, for example, were sympathetic. The other early theme of the meeting was the concern of the ANMF officials as to the reliability of the results of the Ernst & Young investigation, and the suggestion that it might be necessary to do further work in that area. That led, although not directly, to the contributions of Ms Moseby and Mr Connell. Understandably, Ms Morey’s own contribution is not referred to in her jottings.

192    Ms Smith’s notes tended to stress the position expressed by the ANMF officials (as she accepted in her evidence) and are, in my view, a less reliable indicator of the general flow of the meeting. What she said under the heading “members” was, for example, compendious in the extreme. But that section of her notes is not inconsistent with the evidence of other witnesses. Although I have not mentioned it above, there was evidence that members were “teary”. Ms Morey herself was one of these. In a broad sense, “anger” was expressed towards the ANMF (although I do not accept that any of the witnesses who has given evidence in this case was “angry” in his or her demeanour). It was said that the emergency department had become “broken” as a result of the submission, and the external publication, of the grievance letter. And there was at least one member who acknowledged that some of the issues which had been of concern had started to be dealt with since the letter was submitted.

193    As to Ms Moseby’s contribution, the evidence of what she said was given by the applicant, by Ms Smith and by Ms Moseby herself. It is of some significance that Ms Morey recalled that Ms Moseby spoke, but could not recall what she said, and Mr Connell could not recall Ms Moseby speaking at all. Had Ms Moseby been saying what the applicant claimed she did, and doing so in an angry and animated way, it is unlikely that these two witnesses, whom I regarded as credible, would not have recalled it. Doubtless the applicant would want to be understood as putting the veracity of the evidence of Ms Morey and Mr Connell in issue, but the applicant received little support from Ms Smith, her own witness, whose recollection of what Ms Moseby had said specifically was, I would have to say, imperfect. Even the applicant did not give evidence that would make good the allegation as pleaded, namely, that Ms Moseby had demanded that the author of the letter admit that “they” had lied about staff backdating discharge times and removing patients from the Symphony system.

194    The electronic message to which I referred in para 183 above was tendered by the respondent. Unsurprisingly, there was no objection by the applicant. Although in other circumstances it might have been regarded as self-serving, as things happened it provides solid, broadly contemporaneous, evidence as to at least one aspect of Ms Moseby’s contribution in the meeting on 23 January 2014. The applicant was cross-examined with a view to having her accept that the message was replete with exaggerations, but, save that she accepted that the reference to “a solid hour and a half” was an exaggeration, she adhered to what she had written. However, in point of content, the message does not take the applicant very far. The only reference in it to what Ms Moseby had actually said is that she wanted the ANMF to apologise and to admit that they were wrong about the nurses in the emergency department falsifying discharge times. I accept that Ms Moseby did make such a comment. To the extent that her evidence contained denials of having done so, I reject them. Otherwise, I do not accept the applicant’s evidence that Ms Moseby said anything that was critical of the applicant herself. I allow for the possibility, although I do not find, that Ms Moseby referred to the “author” of the letter, but I accept her evidence that she did not then know that the applicant had been the author. Whether used by Ms Moseby or by anyone else present, I believe that such a reference was, if anything, an impersonal way of dealing with a sensitive matter – one which permitted a view to be expressed on matters of content without causing antagonism at the individual level. Ms Moseby did not berate the applicant.

195    Thus I do not accept the applicant’s allegation against Ms Moseby as pleaded, and neither do I accept that anything said by Ms Moseby altered the applicant’s position to her prejudice, injured her in her employment, or discriminated against her.

196    As to Mr Connell, I should commence by saying that he was an impressive witness who gave his evidence thoughtfully and without embellishment. I accept his evidence as set out in para 189 above. With respect to aspects of that evidence where Mr Connell was uncertain, I accept the applicant’s evidence that he said that the release of the letter to the media had broken the department – a factual, albeit metaphorical, assessment at the time – and that he referred to the trust of patients and staff having been compromised. He spoke emotionally, but not angrily. Nothing he said was directed to the applicant individually – he referred to her neither by name nor as “the author”. The focus of his criticism was the ANMF, not the applicant. I accept that Mr Connell had heard that the applicant had collected signatures for the letter, but he did not know that she had drafted it. Even the applicant herself did not perceive his comments to have been directed at her, as distinct from the ANMF officials at the front desk. I accept the evidence of Ms Morey and Ms Moseby that the thrust of Mr Connell’s contribution was a positive one, with a focus on repairing the damage that had been done to the emergency department by the differences of opinion which had emerged since the letter had been sent.

197    I reject the allegation that Mr Connell berated the applicant at the meeting on 23 January 2014; and I reject the contention that his contribution at that meeting altered the applicant’s position to her prejudice, injured her in her employment, or discriminated against her.

198    I would add that, in my view, nothing said or done by any of the speakers at the meeting on 23 January 2014 was the act of the respondent, or said or done on behalf of the respondent within the meaning of s 793(1) of the FW Act. This was an ANMF meeting, called, organised and conducted by ANMF full-time officials. The respondent had nothing to do with it. For the respondent to have instructed nurses as to what they should say, as would have been its entitlement if they were at the meeting on its behalf, would have been unthinkable. I appreciate, of course, that the fact that managerial nurses, such as Ms Morey, attended and participated might have blurred traditional distinctions to an extent, but that was no more than the inevitable result, as it seems to me, of the representational penetration of the ANMF itself. Those who spoke at the meeting, even those in managerial roles, were doing so as ANMF members.

OTHER ALLEGATIONS OF DIFFERENT TREATMENT BY MS MOREY

199    Additionally to the matters discussed earlier in these reasons which, to the extent that it was possible to locate the events concerned in point of time, related to the period more or less immediately following the receipt of the grievance letter, the applicant relied on three later instances of the way Ms Morey treated her differently. To explain the first, I need to refer to something called a “code grey”. This was a procedure by which any staff member confronted with a violent or aggressive incident could, using a duress button on his or her personal phone, call up a response team to assist with the situation. The response team would comprise the nursing co-ordinator, the medical staff in charge, five other staff members of the hospital, three security staff and a personal services attendant. According to Dr Goldie, the code grey system had been a success.

200    When the applicant was on duty on 24 April 2014, an ambulance arrived under police escort with a patient who was under the influence of alcohol. He was extremely abusive and violent. He was placed in the resuscitation area and the applicant called what she described as an automatic code grey, on account of her understanding of the respondent’s then requirement in the event of someone being brought to the hospital under s 10 of the Mental Health Act 1986 (Vic). The NIC, Kath Hogarth, came around to see what the code was. She told the applicant that she knew about the patient in question, and his anticipated arrival (he was, according to the applicant, “a revoked … community treatment order”). Some time later, one of the nurses with whom the applicant was working said to her, “You know they’re around there talking about you, saying you shouldn’t have called a code grey?” The “they” being referred to were Ms Hogarth and Ms Chalkley (the nursing co-ordinator that evening). The other nurse continued, “They’re around there saying that you overreacted and that … and there was no need for a code”. So the applicant proceeded to the NIC’s desk, where she found Ms Hogarth and Ms Chalkley. In the applicant’s language in her evidence-in-chief, she expressed her disappointment that, if they had any concerns with her having called a code grey, they chose not to speak to her directly about it, rather than leaving it for her to hear about it from one of her co-workers. The next morning, the applicant saw Ms Hogarth again and said, “about last night, I’m sorry if I came across as rude. That patient was just … attacking all three of us at the time, and I just needed to … go back and be with – help the other girls, and I didn’t mean to be abrupt.” According to the applicant, Ms Hogarth accepted that without hesitation.

201    Ms Chalkley also gave evidence about this incident. As nursing coordinator at the time, she was required to attend when the code grey was called. When she arrived at the emergency department, she discovered that the response team had just been stood down. Ms Hogarth told her that, in her view, the code grey had not been necessary. Just then, the applicant came by and said that if they – Hogarth and Chalkley – had something to say, they should tell her directly. Ms Chalkley was not sure what was going on, as she had “literally just come through the door”, when she was “bombarded with all the stuff about this code grey.”

202    On the following day, 25 April 2014, the applicant sent Ms Morey an email in the following terms:

I just wanted to let you know about something that happened last night on our evening shift, I was ATL and we had a 25 or so year old guy come In with ETOH+++ abusive Into Al. Wendy Irving and Michelle and I were on in resus and this guy was yelling, flailing arms at us, threatening us and swearing +++ at us. Kath Hogarth was in charge and walked around at this time and told us this chap was an expected patient who had absconded from psych earlier In the day and was an invol pt. I was in the process of calling a code grey and I told Kath that. We did need security to assist us with this chap as we cannulated etc. He settled down but continued with inappropriate behaviour and language. I then had a staff member come and tell me that “they are sitting around saying you shouldn’t have called a code grey”. When I asked who I was told Kath was sitting with Tiff who was coordinator and they were discussing that me calling the code was inappropriate. I went around as I was really upset that I had heard second hand that the NIC was discussing this incident without even speaking to me. I told Kath that if there was an issue with me calling a code I would have liked her to speak to me. Tiff asked us if we wanted to step away somewhere quiet to which I said no as I was going back to deal with the patient who was ongoing agitated and swearing at staff. A further code grey was called on this patient later in the shift.

I have spoken to Kath this morning and offered my apology to her if I came across as rude as that was not my intention but I was mortified to hear from a staff member that I was being spoken about in the very public space of the NIC desk and being admonished for doing something wrong that had neither been fed back or followed up nor clarified with me. I also found the lack of follow up with why we called the code and the inference that I called it without reason to be not warranted. I am sorry to burden you with more work and stress but I just felt really upset by the situation and wanted to let you know what happened from my point of view.

(errors in original)

On 27 April 2014, Ms Morey acknowledged the applicant’s email, adding that she would respond the following Monday or Tuesday, once she had had a chance to investigate.

203    On 28 April 2014, Ms Morey spoke to Ms Hogarth. Asked what had happened on 24 April, Ms Hogarth said that she went to the resuscitation unit to check with the staff. While there, she found that there was an intoxicated patient in one of the cubicles. She recognised him as a patient who had absconded from the emergency department earlier in the shift. She informed the staff. She then heard a code grey called for that patient (at this time, as I understand it from other evidence, code greys were called over the public address system). When Ms Chalkley arrived, Ms Hogarth said that the nurses did not need to call a code grey just because the patient was “recommended”. She told Ms Morey that, at the time, she did not know that the patient had been aggressive or violent towards staff. She said that the applicant came to the main desk and, according to Ms Morey’s file note, “very loudly and rudely said in front of Leslie Graham and Tiffany Chalkley, ‘I believe you’re telling people that I should not have called a code grey’.” Ms Hogarth responded to the applicant that she had been under the impression that the code grey had been called on the basis that the patient had been “recommended”, and that she was going to speak to the applicant but did not get the opportunity. Ms Hogarth told Ms Morey that the applicant had apologised to her on the Friday morning, saying that she had been in a bad mood already and acknowledged that she should not have spoken like that. Ms Hogarth added that she acknowledged that she should have queried beforehand (that is, I take it, made an inquiry as to the facts of the matter before making an assumption about why the code grey had been called).

204    On 29 April 2014, Ms Morey spoke to the applicant. In a file note which Ms Morey had made of that conversation, she referred to the contretemps involving Ms Hogarth and Ms Chalkley, stating that, when the applicant approached them she “was quite rude stating she was not happy Kath had said what she did”. Ms Morey enquired of the applicant, and was told, who had told her what Ms Hogarth had said. She asked the applicant whether she had considered the context in which Ms Hogarth had made the comments, and suggesting that, maybe, she should query in private first. According to the file note, the applicant agreed that she may have come across as angry, and told Ms Morey that she had apologised to Ms Hogarth the following day. Ms Morey explained to the applicant that she needed to clarify with others any conversations relayed to her, rather than listening to hearsay from others. The applicant agreed.

205    On 2 May 2014, Ms Chalkley sent an email to Ms Morey in the following terms:

I would like to inform you of some poor behaviour I witnessed whilst I was in Ed last week, I think it was the 24th April, I had come down to ED as there was a code grey called in A1, after the code grey was stood down I went to the desk to speak to Kath as she was in charge of the shift, to discuss the board and any issues, Kath and I were having a conversation she was telling me about the code grey and said that initially she did not understand why it had been called but then that the resus girls had informed her that there had been some aggression, whilst we were in the midst of our conversation, Kelly Somerville marched up to the desk and said in very loud voice, “If you have any problems with me and that code grey, you should tell me” she was agreesive [sic] in her tone. I said to Kelly, that she could discuss this in private. She said “I have said what I want to say” and walked off. She did not give Kath the chance to respond. Kath was not saying anything about Kelly she was just explaining to me the code grey situation. I feel that Kelly was unprofessional in her behaviour and not in line with the icare values.

206    Cross-examined about why it took her from 24 April to 2 May to write her email to Ms Morey, Ms Chalkley said that she did not know, that she had not checked her roster to ascertain which days she might have had off, and that it could have been because she was “probably busy”. She said that she had not, in the intervening period, spoken to Ms Morey about the incident. For her part, Ms Morey accepted that she had completed her investigation prior to receiving Ms Chalkley’s email, and could not recall whether she had, in the meantime, met with Ms Chalkley and asked to put her recollection of the incident in writing.

207    In final submissions made on behalf of the applicant, the events of 24 April to 2 May were relevant because Ms Chalkley’s email post-dated Ms Morey’s investigation “by a week or so, and no explanation has been offered for that.” The incident was, it was submitted, an example of the applicant “being treated differently” – differently, that is, from the way she had been treated before 2 December 2013. That submission cannot be accepted.

208    First, there was absolutely nothing detrimental or prejudicial in the way that Ms Morey “treated” the applicant in relation to this code grey matter. It was the applicant herself who brought the matter to Ms Morey’s attention, and Ms Morey undertook the investigation which, as she apprehended it at the time, was required by the applicant’s correspondence. Ms Chalkley had not been a primary actor: she was a witness only to what the applicant had said to Ms Hogarth. At the time of the investigation, she had not corresponded with Ms Morey, but the facts of the matter were never in dispute. Ms Morey had ample, uncontroversial, material from which to counsel both the applicant and Ms Hogarth in the terms that she did. Her omission to receive Ms Chalkley’s version of events before doing so affected the applicant not a whit.

209    Secondly, this was a specific, one-off, incident. There is no way of knowing how Ms Morey would have handled the matter had it occurred before 2 December 2013. In submissions made on the applicant’s behalf, my attention was drawn to nothing which would sustain a finding that she (Morey) proceeded any differently from the way she would have proceeded before 2 December 2013 in otherwise identical circumstances.

210    The applicant’s second example of what was said to be the way that Ms Morey treated her differently after 2 December 2013 related to a conversation between them, and Mr Connell, immediately after the ANMF meeting on 23 January 2014. Although the versions given by these three witnesses as to how they came to be in conversation near the pharmacy on their way back to work after the meeting were not wholly consistent, it is uncontroversial that they did converse at that time and place. Subsequently, Mr Connell made a file note of the conversation in the following terms:

Jo Morey (JM) and Kelly Somerville (KS) spent 15-20 minutes following an ANMF meeting in January 2014 discussing the impact of the grievance letter process upon both of them. KS described how upsetting the process had been. JM actively listened and was emotionally supportive towards KS. She was very encouraging and warm towards KS and was supportive of KS’s commitment to the grievance process. JM quite obviously demonstrated that her priorities were to ensure the well-being of KS. JM had also described to KS how personally upset she had been by the process and how she had found the EAP of great value. JM encouraged KS to use the EAP services and contact her personally if she needed any further advice or help.

It was submitted on behalf of the applicant that this was the only known occasion on which Ms Morey had caused a file note to be made of a conversation which did not relate to clinical or performance matters.

211    Mr Connell gave evidence that he prepared this file note, on Ms Morey’s request, a week or two after the conversation near the pharmacy. He placed it on the applicant’s student file. Ms Morey did not recall whether she had asked Mr Connell to make the file note, and there is no reason to doubt the accuracy of Mr Connell’s recollection in this respect. Cross-examined as to why she “would” have wanted such a file note to have been made, Ms Morey said that she wanted to make sure that she was not trying to blame the applicant or to change her behaviour towards her. She wanted accurately to reflect her support of the applicant. She knew that the applicant was upset, and was having a hard time. There were others, herself included, who were also having a hard time. She was, in her own words, “an incredibly compassionate person”, and she wanted to let the applicant know that she supported her. As to why she recorded that conversation, as opposed to any other, Ms Morey could not say. She rejected the suggestion that she wanted a record of her treating the applicant in a compassionate way, or to have evidence that was inconsistent with the way that she had otherwise treated the applicant.

212    I do not accept this submission on behalf of the applicant. The making and retention of the file note did not amount to treatment of the applicant, positive or adverse. It was not shown to the applicant. It was the respondent’s record. It related to a very specific occasion rather than to Ms Morey’s ongoing relations with the applicant. It was not suggested to Ms Morey or to Mr Connell that it was inaccurate. In point of content, if anything the file note, and Ms Morey’s evidence about it, tends to indicate that she was conscientiously going out of her way to ensure that the discharge of her managerial responsibility for the applicant’s welfare was not compromised by the very emotional situation in which they both found themselves. I reject the contention that the fact that Ms Morey caused the file note to be made stood as an instance of her treating the applicant differently from the way she had done before 2 December 2013.

213    The applicant’s third example of what was said to be the way that Ms Morey treated her differently after 2 December 2013 related to the terms in which Ms Morey responded to emails which the applicant had sent on 19 February and 25 April 2014. The applicant’s email of 19 February contained a lengthy recitation of an incident which occurred when she was undertaking what she described as her “first proper triage shift”. It is apparent from the context that she was junior to, and less experienced than, the other nurses with whom she was then working. The situation of a patient who had arrived by ambulance was such that the applicant pressed the emergency button. A more senior nurse, described as “Cathy” in the email, turned off the buzzer and dealt with the patient. The applicant’s complaint to Ms Morey concerned the way she had, in effect, been put down by Cathy, in front of other emergency department staff and the ambulance crew.

214    In part, the applicant’s email of 19 February 2014 read as follows:

I just wanted to say I was made to feel that I had unnecessarily panicked and I definitely got the impression that Cathy thought I was over reacting and that’s why she took over the triage. I spoke to Michelle NIC as I am happy to learn from more experienced staff as I get to know the ins and outs or triage. I am not however happy that I was made to feel inadequate and stupid in front of ambos and staff. I’m sure Cathy didn’t mean it to come out that way but I have been in tears many many times because of the way Cathy addresses me and this has been ongoing for a long time. I know everyone is angry at me at present but I am trying my best and still learning. I deleted the triage I had started as Cathy was doing it but I would have made the [patient] a cat 1 and felt really crap when I walked away from the cubicle. I think it just makes things harder to learn if you are put down or made to feel stupid when you are doing your best. Sorry for whinge and I have twice written this and then deleted it but thought I just wanted to ask you or let you know that I felt a bit crap after that. Whinge whinge whinge. Over!

(errors in original)

215    It was Ms Morey’s response that formed part of the applicant’s case in this proceeding. Sent on 20 February 2014, it read as follows:

Hi Kelly

I am acknowledging receipt of your email. When could we discuss in person? I will follow up the identified staff.

Regards

Jo

216    Under cross-examination, Ms Morey accepted that, prior to 2 December 2013, she had had interactions with the applicant by email, and that, on those occasions, she probably did not formally “acknowledge” the receipt of an email from the applicant. The expression of a formal acknowledgement was not her standard practice upon receipt of an email from a staff member. But she denied that her use of the passage, “I am acknowledging receipt of your email” related to the applicant’s involvement in the letter of 2 December letter 2013. Rather, she said that she wanted to make sure that the applicant knew that she was “listening and receiving [the applicant’s] feedback, and … was going to act on it.”

217    The applicant’s email of 25 April 2014 has already been mentioned in para 202 above. Ms Morey’s response of 27 April, also mentioned in that paragraph, was in the following terms:

Ho [sic] Kelly

I am acknowledging receipt of your email, I will respond on Monday or Tuesday, once I have had a chance to investigate,

Regards

Jo

Here Ms Morey used the same introductory passage as she had in the email of 19 February 2014, and on this occasion she accepted what was put to her in cross-examination, namely, that these were not the words that she would have used in an email prior to 2 December 2013.

218    The question of present interest relates not to Ms Morey’s purpose in sending these emails, of course, but to the nature and quality of her interactions with the applicant. On each occasion, the interaction concerned was initiated by the applicant making a written complaint against her treatment at the hands of more senior nurses. Each complaint required action by Ms Morey – whether by way of an investigation or by way of a “follow-up” – but, in the first instance, she had to communicate with the applicant in terms which amounted to an acknowledgement of her complaint. She may not have had to use the very word “acknowledge”, but that word most accurately described what she had to do. I note Ms Morey’s acceptance that she would not, prior to 2 December 2013, have used that word in like circumstances, and I do accept that she did use it on these occasions at least partly because of an elevated consciousness of the applicant’s sensitivity about her relations with co-workers after the divisions in the emergency department brought about by the sending of the grievance letter and its sequelae. But, although these events may, forensically, be perceived as involving a change in the way that Ms Morey interacted with the applicant, it could only be described as a change of the utmost subtlety, as one which, for its identification, required a comparison with hypothetical events before 2 December 2013 rather than with an actual earlier course of conduct, and, most importantly, one which did not involve any detriment or prejudice to the applicant. They could not, therefore, be used as indicative of Ms Morey’s day-to-day practices in her dealings with the applicant.

219    The applicant’s own email had contained a detailed complaint about her treatment at the hands of another nurse. My attention was not drawn to any comparable situation occurring before 2 December 2013. It was both appropriate and reasonable for Ms Morey to have responded in the terms that she did, notwithstanding the otherwise relatively informal tone of that response. The response did not, in my view, bespeak a negative change in the way that Ms Morey related with the applicant by comparison with the period before that date.

220    To the extent that they relate to Ms Morey, I reject the applicant’s allegations referred to in para 27 above. Nothing in the way that Ms Morey interacted with, spoke to or spoke about the applicant altered her position to her prejudice, injured her in her employment or discriminated against her.

THE EXCESSIVE WEEKEND ROSTERING ALLEGATION

221    I deal here in more detail with the matters referred to in para 39 above.

222    The relevant allegation in the Statement of Claim was as follows:

Between about December 2013 and August 2014, the applicant was rostered on excessively for weekend shifts (excessive weekend rostering).

PARTICULARS

The excessive weekend rostering:

A.    Included the [a]pplicant being rostered to work:

i.    3 of 4 weekends in January 2014;

ii.    3 of 4 weekends in February 2014;

iii.    5 of 5 weekends in March 2014;

iv.    3 of 4 weekends in April 2014;

v.    3 of 5 weekends in May 2014;

vi.    4 of 5 weekends in June 2014;

vii.    3 of 4 weekends in July 2014; and

viii.    4 of 5 weekends in August; and

B.    amounted to unreasonable behaviour towards the [a]pplicant creating a risk to her health and safety.

As it was explained at trial by counsel for the applicant, the particulars to this allegation were to be understood as relating to any weekend in which the applicant was rostered to work on at least one occasion.

223    Although nothing will, ultimately, turn on it, and the respondent did not place the weekends on which the applicant was required to work in dispute, the applicant’s particulars cannot be accepted in at least one respect. It is clear from the evidence, including the shifts calendar for 2014, that the applicant worked her final day at the emergency department on 5 July 2014, a Saturday as it happened. She did not work on any other weekend in July, and she did not work on any weekend in August. I shall, however, give attention to the relevant allegation to the extent that it related to the period during which the applicant was working in the emergency department.

224    Was the amount of weekend work which the applicant was required to undertake “excessive”? As it seems to me, to answer this question requires a base line, or point of reference, said to constitute the normal case. There are three possibilities: the requirements of the enterprise agreement, the pattern of the applicant’s work on weekends prior to the period concerned, and the pattern of work undertaken by other nurses.

225    The enterprise agreement was placed into evidence. Counsel for the applicant did not rely on it as a foundation for this submission that his client was required to work excessively on weekends. Neither, so far as I can see, has it anything to say on the subject.

226    The shifts calendar for the applicant for 2013 was in evidence. There was no suggestion that the pattern of weekend work allocated to the applicant in 2014 was any more adverse to her than the corresponding pattern for 2013.

227    There was no evidence of the pattern of weekend work undertaken by nurses other than the applicant.

228    All the applicant has done in this part of her case is to point to the amount of weekend work for which she was rostered over the period covered by her allegation. No basis has been shown for a conclusion that that amount of work was “excessive”. This allegation must, therefore, be rejected.

MS MOREY’S RESPONSE TO THE APPLICANT’S TIMECARD REQUEST

229    I take up here the matters which I introduced at para 42 above.

230    The relevant allegation in the Statement of Claim was as follows:

In about July 2014, immediately following the [a]pplicant's timecard request, Ms Morey berated the [a]pplicant for having worked the shifts without a break, even though the [a]pplicant had foregone her breaks because of staffing constraints in ED (Ms Morey July 2014 conduct).

PARTICULARS

The Ms Morey July 2014 conduct:

A.    included Ms Morey saying to the [a]pplicant words to the effect that:

i.    it was the [a]pplicant's bad luck;

ii.    that there was no way that the [a]pplicant would get paid for not taking a break; and

iii.    it was up to the [a]pplicant to organise it and if she couldn't get a break she should let the NIC know so she could sort out someone to cover;

B.    included Ms Morey turning and walking away mid conversation when the applicant began to explain the circumstances; and

C.    [a]mounted to unreasonable behaviour towards the [a]pplicant creating a risk to her health and safety.

231    In the applicant’s evidence, there was some uncertainty as to when the relevant events occurred. In chief, she was asked whether she worked again subsequently, and she said that she did an evening shift on the following Saturday. She thought it was on 7 July 2014. But this evidence was given without her attention being drawn to the shifts calendar for 2014. The applicant was quite firm in her evidence that her exchange with Ms Morey followed immediately upon two consecutive night shifts. That could only have been a reference to the nights of 28/29 and 29/30 June 2014. According to the shifts calendar, the applicant then worked shifts commencing at 1:00 pm on 2 and 3 July, and a shift commencing at 7:00 am on 5 July. According to the shifts calendar, she did not work thereafter. For its part, the respondent did not deal with the timing of the events which became controversial, and, under cross-examination, Ms Morey raised no objection to a line of questioning which proceeded on the premise that her exchange with the applicant occurred on 7 July. For the reasons I have given, that cannot have been the correct date.

232    There is another reason why 7 July 2014 was not the date of the applicant’s exchange with Ms Morey on the matter of payment for the missed meal breaks. That was the date on which the applicant sent Ms Morey the email to which I have referred in para 43 above. As I have said, the applicant did not work on that day, or thereafter.

233    Returning to the applicant’s conversation with Ms Morey originally mentioned at para 42 above, according to the applicant’s evidence, when she asked Ms Morey to change the time cards for herself and the other nurse to make sure that they were paid for not having a break, Ms Morey became very aggressive and yelled at her, saying, “if you don’t take the time to take a break, that’s not my problem”; and something to the effect, “your time management’s the problem”. The applicant’s evidence was that this was not just something said in a loud tone: Ms Morey was “yelling”. At the time, the applicant was sitting at the computer, and Ms Morey was standing directly alongside her, in “quite an aggressive sort of stance”.

234    Under cross-examination, the applicant confirmed that she was aware of the procedure that, if she could not take a break in a shift, she would, at the time, seek assistance from the NIC. She confirmed that she had received Ms Morey’s email of 3 August 2012. On the occasion in question when she asked Ms Morey to change her time card, Ms Morey said, according to the applicant, that approval for such a change could not be given “after the time” (ie, as I understood it, after the conclusion of the shift to which the requested change would have related). Rejecting counsel’s proposition that Ms Morey was “polite”, the applicant said that, when she (the applicant) started to explain the circumstances in which she and her co-worker had been unable to take their breaks, Ms Morey’s “face became quite angry in appearance, and she turned around and walked away” from the applicant. She also made the comment, “Don’t think that you’ll be paid for it”.

235    Turning to Ms Morey’s evidence, she said in chief that she asked the applicant whether she had told the ANUM that she was not going to get a break, and asked her what steps she had put in place in that regard. Ms Morey said that she was trying to ascertain whether the applicant had asked the ANUM for assistance to get a break, and whether the ANUM had then tried to assist her to get a break. She inquired whether steps had been taken to ascertain whether a staff member from the intensive care unit might have been able to assist, and was told by the applicant that they had been busy. She also asked the applicant whether the nursing co-ordinator had been notified that she could not get a break. As will be apparent, Ms Morey here gave a deal of evidence about things that were said in her conversation with the applicant that had not been put to the latter; and she was not asked to deny, and did not deny, the gravamen of the applicant’s evidence as set out in the two preceding paragraphs. At the end of her examination in chief, however, Ms Morey answered in the negative the question whether she berated the applicant for her working without a break, even though she had forgone a break because of staffing constraints. That question was a reflex of the relevant pleading in the Statement of Claim.

236    Under cross-examination, Ms Morey confirmed that, before she spoke to the applicant, she had spoken to the NIC for the night shift just finished, Julie Landberg. Ms Landberg had told her that the applicant had not had a break that night. Ms Morey knew that the applicant had not had a break the previous night. She confirmed the respondent’s policy that payment for the time of an untaken break would not be made unless approval was obtained during the course of the shift concerned. She confirmed that she asked the applicant how the shift had been, and if she had had a break. The applicant then asked her to adjust her time card. Ms Morey denied that she was angry about that; and she denied that she was frustrated with the applicant. She said that she did not initially refuse the request to adjust the applicant’s time card. In response to the suggestion that she approached where the applicant was seated, and, speaking in an aggressive manner, said that if the applicant did not take the time to get a break, that was not her (Ms Morey’s) problem, she said, “I would never have said that to a staff member.” She denied that she yelled at the applicant, both generally and in telling her that her time management was the problem. She denied that she stood over the applicant while she said those things. All in all, every critical thing that was said about this by the applicant in her evidence, and alleged in her pleading, was denied by Ms Morey.

237    There is nothing in the evidence to suggest that any other person was present on the occasion concerned. In any event, no-one other than the applicant and Ms Morey gave evidence about it.

238    As with the matter concerning the applicant and Ms Moseby dealt with at para 151 above, there is nothing in the objective record to which recourse might be had to resolve the conflict between the evidence of these two women on this occasion. As I have said elsewhere, I accept that the applicant had a tendency to dramatise interactions which may, to others, have appeared unremarkable. I also allow for the prospect that Ms Morey, as an experienced nursing manager with much on her plate, might at times have interacted with the applicant in terms which appeared to the latter to be insensitive. But the kind of emotive response of which the applicant accused Ms Morey would have been, in my assessment, quite out of character for the person who gave evidence in this court over a number of hours. Although the courtroom is an artificial environment, I have also had the benefit of reading many of the emails of which Ms Morey was the originator, and derived some limited sense of the kind of manager she was from much of the other evidence in the case. I feel I know enough about her to be able to adjudge it as unlikely that she treated the applicant in the way alleged.

239    I reject the applicant’s factual case in relevant respects; and I reject her case that her position was altered to her prejudice, that she was injured in her employment and that the respondent discriminated against her.

DISPOSITION OF THE PROCEEDING

240    For the reasons given above, I reject the applicant’s case that the respondent took adverse action against her, in any respect, within the meaning of s 342(1) of the FW Act.

241    The Application must be dismissed.

Associate:

Dated:    2 December 2016