Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for relief from unfair dismissal; whether refusal to comply with reasonable lawful direction; whether direction was reasonable; whether employee could not fulfil the inherent requirements of the position; whether employee engaged in inappropriate and threatening conduct directed towards other employee; whether denial of conduct alleged was dishonest; consideration whether there was a valid reason for dismissal; consideration of proportionality of dismissal as a response to conduct; dismissal not harsh, unjust or unreasonable; application dismissed.

[1] Mrs Saloshna Naicker (Applicant) is a theatre nurse. She had worked as a theatre nurse in various hospitals in South Africa between 1991 and 1997[1] before migrating to New Zealand.[2] There she worked as a theatre nurse in public and private hospitals[3] until migrating to Australia in 2005.[4] In Australia, the Applicant commenced work as an agency nurse, working as a theatre nurse at various hospitals in Melbourne.[5] The Applicant commenced causal employment with Epworth Foundation (Respondent) at its East Melbourne facility in June 2012 and became a full time employee in or around May 2015.[6]

[2] On or around 4 July 2016, the Applicant was placed on special paid leave pending an independent medical examination [7] and investigation. The Applicant was dismissed from her employment with the Respondent on 29 September 2016, effective immediately with a payment of 4 weeks' pay in lieu of notice.[8] Her dismissal was said to be on serious misconduct grounds because she refused to comply with a lawful and reasonable direction, her conduct towards Ms Genevieve Toop, Senior Human Resource Manager and her inability to fulfil the inherent requirements of her role for the foreseeable future.[9] The Respondent relies on a further independent reason for the Applicant's dismissal after an admission she had made during the proceeding before me. The Respondent says that the Applicant dishonestly denied to the Respondent that she used inappropriate language towards Ms Toop during a telephone call on 23 September 2016.[10]

[3] On 20 October 2016, the Applicant applied under s.394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy.

[4] Turning first to deal with the initial matters which must be decided before the merits of an application are considered.[11] These matters were not in dispute, and I find that:

• The application was made within the time prescribed in s.394(2) of the Act;

• The Applicant was, at the date of her dismissal, protected from unfair dismissal within the meaning of s.382 of the Act;

• The Epworth Health Care Nurses Enterprise Agreement 2012 - 2016 (Agreement) covered the Applicant in her employment with the Respondent and applied to her at the time of her dismissal;

• The Respondent was not a small-business employer within the meaning of the Act and so the Small Business Fair Dismissal Code did not apply; and

• The dismissal was not effected for reasons of redundancy, and so it was not a case of genuine redundancy within the meaning of s.389 of the Act.

[5] I have concluded that the Applicant's dismissal was not unfair. These are my reasons for that conclusion.

[6] On 20 October 2015, the Respondent issued a first written warning to the Applicant because of "inappropriate" communication with a colleague.[12] The Applicant disputed that there was a valid reason for the issue of the warning,[13] but on 4 November 2015, Ms Maree Feery, Executive Director of Human Resources, advised the Applicant by letter that the written warning was appropriate in the circumstances.[14] In February 2016, the Applicant lodged a formal complaint that she had been bullied.[15] Her complaint contained eleven allegations.[16] The Applicant did not receive a response in relation to her complaint until June 2016.

[7] On 14 June 2016, the Respondent wrote to the Applicant that "...there is no evidence to support that you have been subjected to discrimination, bullying or inappropriate or unprofessional behaviour in the workplace."[17] Upon receiving the 14 June 2016 correspondence, the Applicant told Ms Valerie Howell, the Applicant's Manager and Ms Toop that she needed 2 weeks off work to "rest and recuperate from the additional work load" given to her.[18] The Applicant took annual leave and wished to return to work on 29 June 2016.[19]

[8] In or around May 2016, the Applicant was on duty with a second nurse. The Applicant is responsible for labelling the specimen. The second nurse on duty was also required to sight the specimen and sign off on the specimen registrar. An incident occurred whereby a specimen had not been labelled as required. No adverse outcome arose for the relevant patient as a consequence of the failure to label the specimen and no disciplinary action was taken against the Applicant or the other nurse involved. Both the Applicant and the nurse were required to undertake a reflection tool, however the Applicant refused to participate in the reflection activity. The Applicant instead completed a "riskman report" alleging that there had been tampering with the specimen.[20] Following an investigation undertaken by the Respondent, it concluded that there was no evidence to substantiate the Applicant's allegation.[21]

[9] On 23 June 2016, during an unscheduled meeting with Ms Toop, the Applicant, accompanied by her husband, told Ms Toop that she was ready to return to work and that she did not wish to pursue her Workcover claim.[22] It is not in dispute that during this meeting, Ms Toop said that she would arrange for the Applicant and her husband to meet with the Group Injury Manager at Epworth in the Pelaco building in Richmond.[23] The meeting occurred that afternoon.[24]

[10] On 24 June 2016, the Applicant spoke with Ms Toop and indicated that she wished to return to work on 29 June 2016. It is not in dispute that the Applicant was advised that she required a letter of clearance from her doctor declaring that she was medically fit to return to work. The Applicant says that Ms Toop also requested that she provide a letter stating that she would not lodge a Workcover claim against the Respondent.[25] Ms Toop denies asking for a letter to that effect but says that she needed "to understand whether she was or wasn't putting in a claim, but I didn't ask for anything in writing, and - because I needed to understand if I could return her to Cliveden or if I needed to find another alternative workplace for Vanessa. So I asked - I said that couldn't happen, we couldn't do that until I had the certificate and sighted the certificate."[26] The Applicant's evidence is that she prepared a letter indicating that she would not at this stage be pursuing her Workcover claim (Letter).[27] The Applicant's evidence is that the Letter was dated 30 June 2016 but that she had to "re-do it"[28] due to the events which transpired to which reference is made further below. Her evidence is that the Letter which was later dated 3 July 2016[29] was subsequently received by the Respondent.[30] It is not entirely clear to me why it was necessary for Ms Toop to ascertain whether the Applicant was intending to pursue a Workcover claim. Such inquiries are fraught with difficulty and capable of being misunderstood or misconstrued. Although nothing really turns on the disputed conversation, it seems to me that Ms Toop made the enquiry and the Applicant understood the enquiry to include that the answer be in writing. It is also not entirely clear why it was necessary for the Applicant to "re do" the Letter. It seems to me to have been unnecessary. If the Letter had been prepared on 30 June 2016, it could simply have been given to the Respondent on 3 July, or the 30 June date on the Letter could have been crossed out and replaced with the date on which it was delivered. For my own part, I struggle to accept the explanation, but as, apart from the fact the Letter was prepared and delivered, it does not have any other particular significance, and as the Respondent did not press the Applicant about the explanation, I will accept it.

[11] On 30 June 2016, the Applicant obtained a medical certificate from Doctor Brian Gamboni, her general practitioner declaring her "fit to return to work as an operating room nurse now." [31]

[12] On the same day, the Applicant spoke with Ms Toop. The time of the phone call and the substance of the conversation are in dispute. In the Applicant's witness statement, she says at [34] that Ms Toop called her at 3.00pm asking her to "urgently" deliver the medical certificate and Letter to the Human Recourses department of Epworth in Richmond.[32] However, during the proceeding, the Applicant's evidence was that she called the CEO's secretary and that the secretary transferred her call to Ms Toop.[33] The Applicant's evidence was that she does not recall the time of the phone call[34] but that it was "definitely before I [she] consumed alcohol, just after 12."[35] Later the Applicant gave evidence that she could not clearly remember the calls and the times of those calls on that day.[36]

[13] Ms Toop's evidence was that she did not ask the Applicant to deliver the certificate "urgently" to Epworth in Richmond but says that at approximately 10.00am on 30 June 2016 she returned the Applicant's call and asked her how she was feeling and enquired whether she had obtained the medical certificate clearing her to return to work.[37] Ms Toop's evidence was that the Applicant indicated that she had obtained the medical certificate but that it was "too windy" for her to come to Freemasons to deliver the certificate and requested whether she could deliver the certificate in person at the Richmond facility, near the Applicant's residence.[38] Ms Toop's evidence was that she advised the Applicant that if she wished to deliver the certificate in person, she could leave it at reception.[39] The Applicant could not remember telling Ms Toop that it was "too windy" but said that she did not make any excuse and that Ms Toop "specifically directed me to Richmond."[40]

[14] Although not a great deal turns on the precise content of the conversation between Ms Toop and the Applicant on 30 June 2016, I prefer Ms Toop's account of the conversation for the reasons which follow. First, there is no apparent reason why Ms Toop would require the delivery of a medical certificate urgently. Secondly, if Ms Toop required the medical certificate urgently, there seems no apparent reason why she would request that it would be delivered to a place at which she was not located, thus ensuring that its delivery to her would be delayed. Thirdly, it is apparent from the Applicant's own evidence that the Applicant had spent the day socialising with a friend with whom she had shared two bottles of wine. And by her own account she was intoxicated at the time of attendance at Epworth Richmond.[41] Fourthly, the Applicant's various accounts of the time at which the conversation took place are unreliable. The accounts varied from 3.00pm to before 12.00 noon, to not recalling. Ms Toop's version of the conversation is inherently more likely and for the reasons stated, the Applicant's recollection of the conversation is not accepted.

[15] On 30 June 2016, the Applicant was not on duty. As I have already indicated her evidence is that she had been socialising with a friend and shared two bottles of wine.[42] She appeared to have started drinking "just after 12.00" that day.[43] The Applicant's evidence is that she attended Epworth at Richmond to hand deliver her medical clearance certificate and the Letter but due the events that took place thereafter, she was unable to deliver the documents.[44] The Applicant's evidence is that upon her arrival, she contacted Mr Simon Benedict, Human Resources Manager of Epworth Richmond.

[16] Mr Benedict's evidence is that he and two other human resource employees Ms Donna Stewart and Ms Shamama Afrin were in the office that day. His evidence is that he and Ms Stewart [45] were concerned for the Applicant's well-being because of the way she represented herself. His evidence is that the Applicant could not concentrate on the conversation and that she was slow to reply to questions and at times the Applicant raised her voice.[46] The Applicant maintains that she did not raise her voice.[47] Mr Benedict's evidence is that reception called for a "code grey" and a security guard, building operator and hospital coordinator attended the human resources department.[48] Mr Benedict's evidence is that after approximately 45 minutes, he and Ms Stewart offered to take the Applicant to see a doctor in the emergency department as they were worried about the Applicant's wellbeing. Mr Benedict's evidence is that he left the emergency department shortly after and that he later received a phone call advising that another code grey was called.[49]

[17] The Applicant disputes Mr Benedict's account and says that she was "not aware of a code grey"[50] but that she "was aware of two nurses restraining" her and "taking" her to the emergency department.[51]

[18] Where the Applicant's evidence about her attendance at Epworth Richmond on 30 June 2016 conflicts with the evidence given by Mr Benedict, I prefer Mr Benedict's evidence for the following reasons. First, Mr Benedict prepared a contemporaneous note recording his interaction with the Applicant on the afternoon of 30 June 2016.[52] The note is consistent with the evidence that he gave. Secondly, as already noted, by the Applicant's own account she was intoxicated when she attended at Epworth Richmond, and so her recollection of the events is likely to be less clear and less reliable to that of Mr Benedict who was sober and who recorded his recollection in a contemporaneous note. Indeed in subsequent correspondence to the Respondent, the Applicant asserts that her intoxicated state when attending Epworth Richmond meant that she did not consent to the procedures undertaken.[53]

[19] The Applicant's evidence is that she was not given a reason for her detention in the emergency room or why tests were conducted.[54] The Applicant says that when she made some enquires, she was provided with a hand written document from Doctor Hikie Weiss. The note reads "we are doing a blood test to determine the electrolyte levels (sodium + potassium) on Mrs Saloshna (Vanessa) Naicker."[55] The Applicant's evidence is that Doctor Weiss told her that the Crisis Assessment and Treatment Team (CATT Team) would contact her to arrange an interview the following day.[56]

[20] The Applicant gave evidence that Mr Benedict told some person to restrain her and escort her to the emergency room, that she was held against her will by two Epworth nurses, that she was not released from the emergency room despite her protests and that, forcibly and against her will, she was made to remove her clothing and an ECG and blood tests were performed without her consent.[57] These are serious allegations, which were made known to the Respondent, and warranted some investigation or enquiry. It is evident that Ms Toop did not make any enquiry[58] nor is there any evidence before me that any enquiry had been undertaken. For reasons that I will later discuss, the absence of any enquiry as to the circumstances of the Applicant's attendance at the emergency department of Epworth Richmond on 30 June 2016 is a factor that I have taken into account in my ultimate conclusion that the purported direction given to the Applicant by the Respondent to consent to the giving of the medical records held by the Respondent to Doctor Felman was not a reasonable direction. Beyond that, I make no finding as to the veracity of the Applicant's allegations, because to do so might have adverse reputational consequences for the medical and nursing staff involved, none of whom were called to give evidence in the proceeding and cannot answer the allegations. It would also be unwise to rely solely on the evidence of the Applicant, as to the veracity of her allegations, because by her own admission, she was intoxicated at the time.

[21] I do note in passing however, that the written note the Applicant says was given to her by Doctor Weiss appears to be no more than a progress and variance record which appears to me to form part of the patient records held by the Respondent.[59] The note does not appear to me to be responsive to any query raised by the Applicant but rather is a contemporaneous record of steps taken by Doctor Weiss in an attempt to diagnose and treat the Applicant on 30 June 2016.

[22] As to the allegation against Mr Benedict, I have already indicated that I prefer his evidence as to the incident over that given by the Applicant for the reasons stated. It follows that I do not accept that part of the evidence given by the Applicant and noted above, in which she alleges that Mr Benedict told some person to restrain her and escort her to the emergency room. I accept Mr Benedict's evidence as recorded in his contemporaneous note, that out of concern for the Applicant's well-being and having regard to the state in which she had presented in, he offered to the Applicant that she be taken to see a doctor in the emergency department and that he and another Epworth employee Ms Stewart thereafter took the Applicant to the emergency department.[60]

[23] On 1 July 2016, the CATT Team assessed the Applicant.

[24] It is uncontroversial that on 3 July 2016, the Applicant delivered the medical certificate and Letter to Ms Fran Kelly, Director of Nursing and Ms McCartney.[61]

[25] It is not in dispute that on 4 July 2016, Ms Jacinta McCarthy, HR Business Partner of Epworth, advised the Applicant that the Respondent had significant concerns about her health and well-being and her ability to undertake her role as a theatre nurse.[62]

[26] On 5 July 2016, the Applicant met with Ms McCartney and Ms Kelly. During that meeting, the Applicant was advised that the Respondent would require her to attend an independent medical examiner. The Applicant signed the necessary consent form so that access to the Applicant's medical records, reports and interviews held by the CATT Team could be released.[63] This is not in dispute.

[27] On 6 July 2016, the Applicant received a letter from Ms Maree Pane, Director of Clinical and Maternity Services. The letter set out that the Respondent had concerns for the Applicant's wellbeing and her ability to undertake her role as a theatre nurse. The letter noted that the concerns were based on a number of incidences and discussions held over the past several months whereby the Applicant's actions, communications and behaviour has been described by a number of people as oscillating between incoherent, highly inflammatory and paranoid.[64] In this regard, Ms Toop's evidence was that the Applicant had indicated to her on a number of occasions that she did not feel safe at work and felt that people at work were "conspiring against her."[65]

[28] The 6 July letter also contained expressions of concern in respect of discussions held between Ms Toop and the Applicant. Ms Toop's evidence was that during discussions with the Applicant she had made troubling statements such as "...I would be upset if I had to cut off your breasts" and "...cutting off people's parts damages me and makes me feel bad..."[66] The Applicant denies making those comments and says that they were taken out of context.[67] The Applicant denies using those words and says that she used professional words such as "mastectomy" and "left axillary clearance".[68]

[29] The 6 July letter also recounts an incident on 4 April 2016. Ms Toop's evidence about this is that she received a call from the Applicant and was so concerned that she called the Police to undertake a welfare check on her at her home.[69] The 6 July letter contains a request that the Applicant sign a medical release form as the Respondent actively wished to partner with the CATT Team in understanding the Applicant's current situation.[70] This is not in dispute. The letter also directed the Applicant to maintain strict confidentiality throughout the process and was advised should the Applicant "fail to comply with this direction, you [the Applicant] will be subject to the disciplinary process." As noted above, it is not in dispute that the Applicant signed the necessary release form.[71]

[30] Although none of this is relevant beyond background information to provide foundation for the Respondent's concerns, I accept and prefer Ms Toop's evidence as recounted above. Ms Toop's evidence was generally consistent and I consider her to be a truthful and reliable witness. The Applicant's evidence was, as should already be apparent, inconsistent. Her recollection was patchy at times[72] and her departure in oral evidence from some matters contained in her earlier written statement, raise credit issues which cannot be ignored.

[31] On or around 6 July 2016, the Applicant received two invoices[73] for the tests conducted by the Respondent on 30 June 2016. The Applicant maintains that she is not liable to pay for those invoices as she did not consent to the tests being conducted.[74] For the reasons given earlier, I do not propose to make any finding about the invoices and in any event, apart from the context, they are not material to any issue I need to decide.

[32] On 14 July 2016, Ms Pane lodged a notification (complaint) against the Applicant with the Australian Health Practitioner Regulation Agency (AHPRA). The complaint outlined the events which took place on 30 June 2016 and detailed the Respondent's concerns regarding the Applicant's health and wellbeing and her ability to work as a theatre nurse. On 16 September 2016, AHPRA wrote to the Applicant advising her that the Board had decided to take no further action and that the matter was closed.[75]

[33] On 18 July 2016, Doctor Joe Chen, the Psychiatry Registrar at St Vincent's Hospital, that is, the senior psychiatrist engaged with the CATT assessment, wrote to the Respondent indicating that the assessment of 1 July 2016 showed that there was "no evidence of acute psychiatric issues" and that that the "incident...appears most likely in the context of alcohol intoxication."[76]

[34] The Applicant provided the Respondent two hand written letters dated 20 July 2016 from her doctors. Doctors Bongiorno and Gamboni wrote that, in their assessment, the Applicant was medically fit to resume normal duties.[77]

[35] On 5 August 2016, Epworth wrote to the Applicant scheduling an appointment with Doctor Dielle Felman, Consultant Psychiatrist, acting as an independent medical examiner, on 10 August 2016. The letter stated that the assessment would consist of an interview by a qualified medical practitioner that involves questions about the Applicant's current and past health, medical symptoms and treatment followed by an examination of relevant areas.[78] Ms Toop's evidence was that she called the Applicant and told her that the Respondent had secured an appointment on 10 August 2016. Her evidence was that the Applicant and her husband expressed concerns about undertaking the assessment.[79] This is not in contest.

[36] On 8 August 2016, the Applicant and her husband met with Ms Toop, Ms Pane and Ms Kelly. Ms Toop's evidence is that she suspected that the Applicant had been drinking as she smelled of alcohol and she appeared to be intoxicated.[80] Ms Toop's evidence was that the Applicant appeared very agitated; she was aggressive and could not stay focused.[81] Ms Toop's evidence was that she advised the Applicant about her concerns that she appeared to be intoxicated and the Applicant said that she was allowed to have a drink as she was not at work.[82] Ms Toop's evidence was that she told the Applicant that she was at work and was being paid to attend the meeting and that the meeting was being held at her request and that her behaviour and demeanour heightened the Respondent's concerns in regard to her.[83] The Applicant's evidence is that she would have had a couple of glasses of wine to distress".[84] The Applicant was asked by Ms Pane to undertake a urine or blood test, to which the Applicant initially agreed but later declined because she says "if I've had two glasses of wine, and if I'm agreeing to a test surely my blood is going to show levels of alcohol.[85] The matter was not taken any further and the Applicant and her husband left the meeting shortly after. That the Applicant attended the meeting having consumed alcohol is not in dispute.

[37] It is not in dispute that on 10 August 2016, the Applicant attended an examination with Doctor Felman. The Applicant provided the 18 July 2016 correspondence from Doctor Chen to Doctor Felman.[86]

[38] On 18 August 2016, Doctor Felman submitted her report to the Respondent.[87] Doctor Felman's report was provided to the Applicant in late August 2016. Doctor Felman expressed a number of opinions in a 10 page report including that on the basis of the information available to her, she would consider an alcohol misuse disorder high on the list of differentials, although she required further information to corroborate this view. Doctor Felman wrote:

"In my opinion, given the stark contrast in opinion of the employer and worker, it would be useful to have some uncensored information to assist in the evaluation of the current situation, including uncensored notes from the Code Grey/hospital presentation and CATT Team notes.

I would also recommend some objective markers for substance use including liver function tests, FBE, CDT (for heavy alcohol use) and a urine drug screen.

I recommend that Ms Naicker be considered totally unfit for work at the current time, while further information is gathered regarding her condition. This information would include independent information and health information."[88]

[39] Doctor Felman's evidence was that it was highly likely that the Applicant had an alcohol misuse disorder but given that the Applicant was adamant that it was not the case throughout the course of the interview, Doctor Felman wanted to give the Applicant the benefit of doubt and requested further information.[89] Doctor Felman was not asked to provide the Respondent with a supplementary report and as at 29 August 2016 Doctor Felman did not have any contact with Ms Toop or the Respondent in respect of this matter.[90]

[40] In light of Doctor Felman's report, on 30 August 2016 the Applicant received a letter from the Respondent requesting that she consent to provide to the Respondent and Doctor Felman details of her admission to the Epworth emergency department on 30 June 2016 and the results of the medical liver function tests, FBE, CDT and urine drug screen that will be sent by her doctor to Doctor Felman to use for a further report to the Respondent.[91] There were two consent documents attached to the Respondent's letter.

[41] On 9 September 2016, the Applicant wrote to Ms Toop advising that she did not wish to release the information in relation to her "admission notes and patient notes" given that "such tests and assessments [on 30 June 2016] were done whilst I was on leave and under severe duress and intoxication and without proper informed consent. This occurred in my private and personal time."[92] She agreed to consent to the release of her results of the liver function tests and urine drug screen that she would later undertake.[93]

[42] On 12 September 2016, the Respondent wrote again to the Applicant. In the letter, the Respondent sought "agreement to release the medical information sought by Doctor Felman from the Epworth" by no later than 4pm on Friday, 16 September 2016.[94] The letter included the following:

"Further while you have agreed to undertake certain tests for liver function, FBE, CDT and urine screening you appear not to have provided your consent for the test results to be forwarded to Doctor Felman and used as information to enable Doctor Felman to write a further report.

We require you, as set out in my correspondence to you (via Doctor Bongiorno) of 30 August 2016, to provide medical release authority, signed and dated by you, that was attached to that correspondence.

The report from Doctor Felman states that you are totally unfit for work until further information is gathered to enable her to prepare a further report.

You have been directed by us to provide us with the information set out in my correspondence and the reasons for that direction. By declining to cooperate and provide all the information you have failed to follow the lawful and reasonable direction. In the absence of all the information sought we are unable to provide Doctor Felman with the information she needs to provide a further report. Without a further report you continue to be totally unfit for work.

In declining to follow our lawful and reasonable directions, which emanate from Doctor Felman's report, it will be open to Epworth, subject to your response to this issue, to conclude that you have engaged in serious misconduct which may then warrant disciplinary action including the termination of your employment.

If the information sought by Doctor Felman is not provided to her, it may be open to us to conclude that you remain totally unfit to perform your duties for the foreseeable future which may cause us to conclude that your employment can no longer continue.

Therefore by no later than 4pm Friday 16 September we seek your agreement to release the medical information sought by Doctor Felman from the Epworth and to return the medical release form to us, a further copy of which is attached. You are also invited by that timeframe to respond to the issue about whether in failing to provide this material you failed to follow a lawful and reasonable direction."[95]

[43] On 15 September 2016, the Applicant wrote to the Respondent stating that "the results from all tests to be carried out on the 16/09/2016, liver function test, FBE, CDT, urine screening will be forwarded to Doctor Felman by Doctor Bongiorno as soon as he receives them".[96] The Applicant continued to refuse the release of the medical information in respect of the events which took place on 30 June 2016.[97]

[44] On 16 September 2016, Doctor Bongiorno forwarded the Applicant's medical results as to the tests carried out to Doctor Felman.[98]

[45] On 21 September 2016, the Applicant received a letter from the Respondent requesting that she attend a meeting with Ms Toop and Ms Pane on 29 September 2016 to discuss the Respondent's concerns.[99] The letter encouraged the Applicant to bring a support person. The letter stated, inter alia, the following:

1. you are unable to fulfil the inherent requirements of your role and will be unable to do so for the foreseeable future; and

2. you have failed to comply with a lawful reasonable directive to provide Epworth with a consent to release relevant medical information required by Doctor Felman in order to further assess your future capacity for work."

[46] On 23 September 2016, Ms Toop telephoned the Applicant. Ms Toop's evidence is that the Applicant became aggressive and made abusive and threatening comments. Her evidence is that during the conversation, the Applicant indicated that she wanted to resign. Ms Toop's evidence is that she told the Applicant to discuss the matter with her husband and that if she wanted to resign, her resignation would be required in writing. Her evidence is that the Applicant said phrases such as "you want that, you want to sack me, I am going to fuck you up, you are going to be fucked over, you are so fucked, I cut off people's body parts, that gets to you, I am very professional."[100] Ms Toop's evidence is that the Applicant changed the subject and spoke about missing her dog and mother in South Africa. She says that the Applicant would again get angry and continued to make abusive and threatening comments. As will become apparent shortly, the Applicant now admits the substance of Ms Toop's recollection of the 23 September 2016 telephone conversation. Ms Toop prepared a file note shortly after the telephone conversation as follows:[101]

Vanessa has received our letter dated 21st September, 2016 to attend a further meeting to respond to allegations that she was unable to fulfil the inherent requirements of the role; failed to comply with a lawful and reasonable direction and failed to provide required information required by IME Doctor Felman.

Vanessa phone at approximately 2.30 p.m. on Friday 23rd September, 2016.

Vanessa was extremely angry and I felt she was under the influence of either drugs or alcohol and upset about attending a further meeting and EF continuing to request further medical information and in particular did not want to undertake a blood test or sign a release for VN admission into Epworth RD.

VN was extremely upset and rambling about jumping from different topics and incidences:

• Illegal detainment of her at Epworth Richmond ED
• Welfare Check in April, 2016 to her home
• Upsets her to cut off people's body parts
• She missed her dog that was in the country and that she loved her dog
• Missed her Mum
• How professional she was and that we were trying to discredit her
• We were trying to sack her

VN advised "...it was all too hard and that she would like to resign..."and continued repeating this statement...

GT advised "...If she would not like to continue with the process and she would like to resign then she would need to notify us of this is in writing...and that she should talk to her husband before submitting anything.."

My colleague Chloe Foster entered the room and I placed Vanessa on speaker phone so I could have a witness to the conversation.

VN: Continued to repeat the above statements and would work herself up into get upset

GT: I was trying to calm her down and kept checking that her husband was there, or that she had support...she needed to calm down...and for her and her husband to come to the meeting and discuss the situation and her concerns..."

VN: advised that her husband would be home from work soon and that her and her husband were going to down to their country property and she would see her dogs...

VN: became angry again started making statements "...You want to sack me...I can't do this anymore I am going to resign... You can't get rid of me.."

VN: got angry and abusive and starting making threatening comments:

• You want that...you want me to resign
• I am going to fuck you up
• You are going to fucked over
• You are so fucked
• I cut off people's body parts...That get's to you
• I have to see people insides, blood and body parts...You shouldn't have to see those things...
• I am very professional

GT: advised that she needed to calm down and that we would discuss everything at the meeting

VN: Continued to say that in a very malicious tone "...I am fucked (meaning GT)...how could we do this to her...I am going to fuck you up..."

GT: advised VN that she needed to calm down and that I knew she was upset however she needed to speak respectfully. I was speaking respectfully to her and she needed to do this too

GT: I advised VN that I couldn't continue the conversation if she continued to abuse and threaten me

VN: responded - how would you feel...And was rambling on about cutting off body parts and seeing people's internal organs...she missed her dog and that she missed her Mum...

GT: I confirmed that VN was OK and confirmed that she was safe and confirmed the time that her husband was coming home. Reiterated the meeting time

VN: advised she did not think she would attend the meeting and what was I going to do if she wasn't safe - call the police on her again...And VN started laughing/cackling

• VN then kept repeating
  • You are fucked
  • I am going to fuck you over and she was cackling
  • You are so fucked

GT: I confirmed that she was well VN assured me she was not going to harm herself and that her husband was going to be home soon. I advised we were repeating ourselves and that after she spoke with her husband if they could notify us of their intention to attend the meeting set up.

[47] On 29 September 2016, the Applicant attended a meeting with Ms Toop and Ms Pane. The Applicant's husband was also present. The telephone conversation which occurred on 23 September 2016 was discussed at the meeting. The Applicant's evidence is that she was "shocked" that the 23 September phone call was brought up in the meeting because she says "if this had happened she could have told me earlier than my last day"[102] and that she "believed" at the time that she did not actually use any inappropriate language. During the course of the meeting, Ms Toop informed the Applicant that the phone call was on loud speaker and that Ms Chloe Jones, Human Resource Advisor, heard what was said. The Applicant was not aware that Ms Jones heard parts of the conversation until the meeting of 29 September 2016. Ms Jones prepared a witness statement but she was not required for cross-examination and her evidence corroborates that of Ms Toop.[103] Ms Toop made a file note of the meeting of 29 September 2016 with the Applicant, which is as follows:[104]

"Purpose: Record of Meeting between Vanessa Naicker, her husband Sangret, Maree Pane, DCMS, and Gen Toop

The meeting commenced with a review of the findings of the IME and the rationale behind the request for further information. Outlined the information and actions required of VN to comply with the requests and then there was a discussion held regarding VN concerns complying with the request and it was reiterated to VN the serious consequences (as outlined in the letter dated 21st September, 2016) if VN failed to comply with what EF considered to be a reasonable request.

VN reiterated her concerns regarding the unauthorised detainment at Epworth Richmond ED and that she was forced to undertake tests and that ED department had called the St Vincent's CATT team to assess her. All of which VN advised she did not agree to and therefore she would not sign the medical release form. VNs husband Sargent also reiterated VN's concern about signing the medical release for the Epworth ED admission.

VN further provided MP and GT with the liver function test results and the invoice for reimbursement. VN and her husband were thanked by both MP and GT for providing this information. VN was assured by MP that the costs of the tests would be covered by Epworth Freemasons

The contents of the letter dated 21st September, 2016 was reiterated to VN and refusal to follow a reasonable direction was considered 'serious misconduct'.

VN was advised that in determining VN ability to fulfil the inherent requirements of the role, in the absence of VN's refusal to consent to providing further information that we would have to base our decision on the information we had received from the IME which stated that VN was "totally unfit for work" advised if VN failed to comply with the request.

During the meeting a discussion was held regarding VN abusive and threatening behaviour during the phone call made to GT on 21st September, 2016. GT advised that I understood that VN was upset by the process however VN's abuse and threats were unacceptable level expected by an Epworth employee.

The details of the phone conversation were discussed with VN in detail.

VN initially denied the allegations as all being a 'bunch of lies' and was then VN was advised that the phone conversation was overheard by HR colleague.

VN then did not respond and sat back in her chair and folder her arms.

GT then asked VN if she still denied the VN was abusive and threatening.

VN stood up in her chair and waived her hands around in the air in an angry manner and was 'huffing' and then VNs husband shook his head and got VN to calm down.

VN did not respond to us but responded to her husband and stated "...they are lying...they are lying..." VN's husband continued to shake his head at VN.

Prior to suspending the meeting VN was asked to confirm her position to which she advised she refused to sign the medical release for the Epworth ED admission.

It was again reiterated that this was considered failing to follow a reasonable instruction and we would need to assess her ability to fulfil the inherent requirements of the role on the information obtained to date.

The meeting was suspended at 3.24 p.m. in order for MP and GT to advise the Executive, Industrial Manager and Legal Counsel the outcome of the meeting thus far and obtain advice and give due consideration to the information provided.

At 3.29 p.m. - A phone meeting was held with the Acting ED HR, Katherine MacHutchinson, Group Industrial Manager, Liz Powne

At 3.58 p.m. - A group phone conversation was held with Nick Ruskin from K and L Gates to obtain advise

A decision was made during this phone conversation that VN employment would be terminated as outlined in the letter of termination:

• DoctorFelman's (IME) report advising "totally unfit for work"
• Refusal to follow a reasonable direction to release required medical information as required
• Verbal abuse and threatening behaviour - in breach of our code of conduct and below the expectations of an Epworth Employee
• Engaged in serious misconduct

When MP and GT returned to the meeting room VN was painting her fingernails and

MP and GT advised VN that we sought Executive, industrial and legal advice and based on all of the information and discussions we were terminating VN employment effective immediately and that VN would receive 5 weeks in lieu of notice in addition to any annual leave entitlement VN had.

VN had then finished painting her nails and stated "...you are terminating my employment without the opportunity to make a workcover claim... You have given us no choice but to go down the legal road, it's nothing personal..."

GT advised VN that a letter would be couriered out to VN that afternoon confirming our discussions and the outcome of the meeting.

GT advised VN that she could access EAP, and reiterated the 5 weeks in lieu of notice in addition to any annual leave entitlements.

VN asked if the pathology invoice would be reimbursed to which GT advised this would be reimbursed via our accounts payable system rather than our payroll system.

[48] During the meeting and up until the commencement of the hearing of this application, the Applicant continued to deny being abusive and using threatening language towards Ms Toop.[105] During the hearing, the Applicant admitted the conduct but says that the vulgar language she used was said with "no intent".[106] The Applicant's evidence in respect of the 23 September 2016 telephone call was inconsistent on a number of occasions and on a whole was largely unconvincing. The admission made during the hearing was laced with justification, akin to provocation and stressful circumstances, and evasive. It was short on genuine acceptance of wrong doing and remorse. This is evident from the various extracts of her evidence recorded in transcript below:

"Yes?---I'm not 100 per cent sure as to exactly what time the call was. I was very distressed and very emotionally upset and I did mention that this situation is fucked up. Basically you are fucking up my life. Not only have you tried to get me de-registered with AHPRA, you are now dismissing me. And I am very, very sorry for using that language. I am deeply sorry but I was really, really upset because this is a turning point in my life now.

Why were you upset?---I was upset on several issues that has, you know, leading up to this termination. It has been, you know, a major struggle with the fact that my bullying and discrimination claim was not dealt with appropriately ..."[107]

"It's alleged against you that you said words along the lines of, "I'm going to fuck you over". What do you say about that? Did you say that?---If I've used any vulgar languages I used it because I was stressed out and I was distressed from the news.

Yes?---I am not denying that I have not used vulgar languages."[108]

"So Ms Toop said that you'd used vulgar language on 23 September. What did you say?---I was - I was really shocked because if this had happened she could have told me earlier than my last day.

So what did you say, if anything, about that? I understand that you've told the Deputy President you were shocked. Did you respond to the allegation that you had used vulgar language on 23 September?---I did ask her did you - I did mention that you did not inform me that you're going to put me on loud speaker.

Did you deny that you'd used bad language on the 29th?---Sorry. When she explained to me I was in a state of shock, I did not believe that I did use vulgar languages at that specific time when it was explained to me. And in her letter I was - I did not believe that I actually did that.

Yes, so you remember what you said? If you don't remember please just tell the Deputy President you don't remember?---I don't remember exactly what I did mention to Ms Toop but my husband was there.

Had you been spoken to at any time before 23 or 29 September about using vulgar language in the workplace?---Not at all."[109]

"That's okay. You were angry, weren't you, about receiving the 21 September letter that I showed you before?---I was distressed. I was losing my job.

You said that you thought that Epworth wanted to get rid of you; wanted to sack you. And you said the words, "You can't make me resign". You said those things, didn't you?---I would have said Epworth was - wanted to sack me.

You would have said that?---I would have said that.

Yes. And you also said that Epworth wanted to get rid of you, and you also said, "You can't make me resign". Do you remember saying those things?---At one stage I offered to resign. Not on that particular day; on the 23rd.

No, I'm not asking you about that, Ms Naicker. I was just asking you whether you used those words on the telephone on 23 September? If you can't remember that's fine, but you just need to say whether you remember using those words?---I can't remember.

You made the following comment, so you used these words to Ms Toop:

You want me to resign. That's what you want. I'm going to fuck you up. You will

You used those words to Ms Toop, didn't you? It's not a difficult question to answer, Ms Naicker. You used those words or you didn't use those words to Ms Toop; which one is it?---I'm already going to be terminated. I've already had this idea on the 21st that I am - my employment is going to be terminated.

You understand that that's not an answer to my question, Ms Naicker. My question is very simple. Did you use these words - - -?---I do recall - - -

You want me to resign. That's what you want. I'm going to fuck you up. You will get fucked over.

That's my question. Did you or did you not use those words to Ms Toop?---I may have used - said, yes, I will - "I am going to fuck you up" in my - being in that angry state of mind.

Yes?---Because my employment is being terminated."[110]

"What do you recall? I mean, getting back to our discussion earlier, there seems to be a concession on your part that you used, during the telephone conversation on 23 September, what you describe as vulgar language. What do you recall that vulgar language being?---I would have used the eff word.

Again, can you try and focus on what you remember; not what you say now that you would've done? What do you remember saying? If you don't remember, that's fine, just say so?---I do - all I do remember that I discussed the situations that has led up to the 23rd, and now it's termination, and it's been, you know, it's been a battle. It's been a struggle. And that I've tried to comply with everything that Ms Toop wanted me to do except that I could not give the consent for 30 June"[111]

"MR TRACEY: Thank you, your Honour. You'd admit this, wouldn't you, Ms Naicker, the language you used to Ms Toop on the phone on 23 September was abusive and threatening language, wasn't it?---Well, she makes me out to be abusive and threatening.

I'm not asking you about making you out to be anything; I'm simply asking you, as a matter of fact, it's right, isn't it, that what you said to her was abusive and threatening; that's right, isn't it?---Well, I said it out of anger and I'm deeply sorry for saying that.

But it was abusive and threatening, wasn't it?---It was - well, I said it because, you know, I was distressed and - - -

I'm not asking you why you said it; I'm simply asking you about the character of what you said?---I said it with no intent. I said it with no intent.

I'm not asking you about your motive; I am not asking you about any of that; I'm asking you whether or not you agree that the character of what you said to her was abusive and threatening?---It was - well, vulgar language is abusive but it certainly wasn't threatening. I wasn't going to go up to her office and physically beat her up or harm her.

I put it to you that by saying, "I'm going to fuck you up" to somebody, that is threatening language isn't it?---Well, if she was so threatened by me she would not agree to meet me on the 29th.

That's threatening language, isn't it? "I'm going to fuck you", that is threatening language, isn't it? I'll give one more chance to agree or disagree with me on that, Ms Naicker?---I was angry at the time. I was distressed, and I did use abusive languages, but it was said with no intent. I did not make a decision to go out to Ms Toop's office and physically do what I said to harm her or beat her up. If Ms Toop had felt that way she would have not met with me on the final day, 29 September.

So you've just said in your evidence that you did use abusive language. That's your evidence, isn't it? That's what you've just said?---I may have."[112]

"You recall also that his Honour asked you some questions about that. Is it right that you denied being abusive and threatening towards Ms Toop during the call on 23 September?---On the 29th?

Yes, you denied that on the 29th?---As I mentioned earlier on, it came to me as a shock. I did not deny it outright, and Genevieve too briefly says that she had a recorded message to that effect.

So she said she had a recorded message to that effect, is that your evidence?---I say that again. She had somebody on loudspeaker who heard the conversation.

She told you about the person on loudspeaker who heard the conversation, and am I right in saying that you said I did not use abusive or threatening language to you?---I do not recall saying anything to her, because I was in a state of shock, being the last day that she is mentioning those abusive language.

What did you say in response when she referred to your abusive language on 23 September?---At that point, I don't recall what I've said, and - well my husband was present for that meeting. I was just basically, you know, just amazed that she's only pointed out this conversation on the video last day of my employment and did not bring it to my attention earlier on."[113]

"And then when you filed your witness statement on 28 December 2016, you knew that you had been verbally abusive to Ms Toop on 23 September, didn't you?---On 28 December?

On 28 December when you filed your witness statement in this proceeding, you knew that you had been verbally abusive to Ms Toop on 23 September on the phone?---When I filed that statement I did it to the best of my ability. I could not recall all the conversations that I've had with Ms Toop. There were numerous conversations.

I'm not asking you about any of that. I'm asking you whether you knew on 28 December, which is the day you filed your witness statement, that you had been verbally abusive to Ms Toop during the phone call on 23 September?---I still felt unsure about it, and that is why when I filed it I did not mention anything about. I still felt very unsure about actually really using the abusive language.

Well let's have a look at your statement in light of what you've just said by way of evidence. Could you go, please, to paragraph 60(d)? Can you read that just to yourself, not out loud but just to yourself? That's not a statement from somebody who's unsure about what she did. That's a statement whereby you deny that you verbally abused Ms Toop at all on 23 September. That's exactly what you're saying there, isn't it?---On the 29th I was not sure.

No, I'm asking you about 28 December when you filed this witness statement?---I still believe at that point in time I still wasn't absolutely 100 per cent sure that I was abusive.

And yet despite being not 100 per cent sure, in your witness statement you have denied verbally abusing Ms Toop?---At that point I was still not 100 per cent sure that I was verbally abusive. There were too many conversations.

You recall this morning when you adopted your witness statement that you said, in answer to a question from my learned friend, Mr Champion, you said that every part of this statement apart from the ones dealt with earlier was true and correct in every detail, you remember giving that evidence?---Yes.

And that included paragraph 60(d), so as recently as this morning you have given evidence - this is when your statement went into evidence - that you denied having verbally abused or threatened Ms Toop on 23 September, that's right, isn't it?---Up until the 28th when I gave my final submissions I still felt unsure.

No, I'm talking about this morning, Ms Naicker, when you adopted this statement as being true and correct in every detail, including paragraph 60(d)?---Well, I have only made my mind up about the verbal abusive language - not around that time - it was when I had to seek legal help and discuss it with my husband and go over it.

Since stating what you've stated there in paragraph 60(d), you've said to me earlier in your evidence, in the questioning from me, that you agree that you were verbally abusive to Ms Toop on 23 September, that's been your evidence, hasn't it?---At that point I was unsure, on the 29th, but now I am sure I must have - you know, I might have used these verbal languages, being in that frustrated state of mind and distressed state of mind.

So you're asking his Honour to accept that almost a year later your recollection of the meeting of 23 September is better than your recollection six days after the 23 September conversation? Is that what you're asking his Honour to find?---No, when I made the statement on the 28th I did not take into consideration about the verbal abusive language. At that point, I didn't think I actually said that. So it had taken me after 28 December to really sit down and think about it carefully.

I put to you that that's simply not believable, Ms Naicker, and that on 29 September when you denied being abusive and threatening on 23 September you were denying that dishonestly, because you knew on 29 September exactly what you'd said on 23 September to Ms Toop, didn't you?---No, it came as a shock to me, and Ms Toop really was really brief about it. It came as a shock to me.

While we're looking at paragraph 60(d) of your witness statement, you also say there that, in addition to:

I deny having verbally abused or threatened Ms Toop on 23 September 2016 as is alleged for the first time in the letter of termination dated 29 September 2016.

You agree with me that that's not correct and it's not correct because, according to your own evidence, Ms Toop alleged verbally at the meeting on 29 September, before that letter of termination, that you were verbally abusive and threatening towards her, that's right, isn't it?---She alleges that I used verbal language towards her on the 23rd.

And she alleged that on the 29th verbally to you, didn't she? Is that right?---I think she has put it in her letter as well.

Yes, she did put it in the letter, but she also said it verbally before she sent you the letter, didn't she?---She did.

So that's not a correct statement that it was alleged for the first time in the letter of termination. It had been alleged verbally before that letter?---On the same day.

Thank you. That letter of the 29th was a letter you received later in the day, is that right, on the 29th - this is after the meeting?---Yes, I think she couriered it to my apartment.

Ms Naicker, you would agree with me that the language you used towards Ms Toop on 23 September was very serious language?---I did say the situation is fucked up. I did say that all the issues that I had to deal with over the months and now my termination has really, you know, fucked my life up - I may have said that."[114]

"MR TRACEY: Thank you, your Honour. When you said that the allegations were all a bunch of lies, that was you denying that you'd been abusive and threatening to Ms Toop on 23 September, wasn't it, Ms Naicker?---That was on the 29th when she mentioned it to me, that I failed to state I didn't do it, and I didn't believe that I did it.

No, you didn't say that. You said it was a bunch of lies?---That was on the 29th when she mentioned the abusive language to me on my last day and I didn't want to believe that I've actually done that.

Your evidence before in questioning from me was that you did not recall what language you used on 23 September. Now you've confirmed in answer to his Honours question that you did in fact describe the allegations about abusive language as "a bunch of lies." I put it to you that that's very different, not recalling versus outright denying, by saying something's a bunch of lies. That's a very different thing, isn't it?---At the time on the 29th, I was in a state of shock when I heard the news, and to me it was, you know, something on the very last day, just out of the blue, and at that point in time I thought it was lies.

And you said so. You said that it was lies, didn't you?---Because I was in a state of shock and I didn't believe that I actually did that."[115]

[49] At the end of the meeting the Applicant was informed that her employment as a theatre nurse with the Respondent was terminated.[116]

Consideration and application of the statutory framework

[50] An order for reinstatement or compensation may only be made if I am satisfied the Applicant was, at the date of the dismissal, protected from unfair dismissal under the Act.

[51] Section 382 of the Act sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal as follows:

"382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold."

[52] There is no dispute, and I am satisfied, that the Applicant was, as at 29 September 2016, protected from unfair dismissal within the meaning of s.382.

[53] The Applicant's dismissal will have been unfair if I am satisfied, on the evidence, that all of the circumstances set out in s.385 of the Act existed. Section 385 provides:

A person has been unfairly dismissed if the FWC is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388."

[54] There is no dispute that the Applicant was dismissed at the Respondent's initiative within the meaning of s.386 of the Act. As I have previously indicated, the Respondent is not a small business employer so the issue of compliance with the Small Business Fair Dismissal Code does not arise, and the dismissal of the Applicant was not a case of genuine redundancy within the meaning of s.389 of the Act.

[55] It remains therefore, for me to consider whether the Applicant's dismissal was harsh, unjust or unreasonable. The matters that must be taken into account in assessing whether the dismissal was harsh, unjust or unreasonable are set out in s.387 of the Act:

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant."

[56] I am obliged to consider each of these matters in reaching my conclusion[117] and I do so below, having regard to the factual findings earlier made and taking into account the helpful submissions filed by the parties.[118]

[57] The words "harsh, unjust or unreasonable" in the context of a dismissal was explained in Byrne & Frew v Australian Airlines Ltd[119] by McHugh and Gummow JJ as follows:

". . . It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."[120]

[58] Ultimately, however, it is the matters set out in s.387 of the Act to which regard must be had.

[59] There must have been a valid reason for the dismissal relating to the Applicant's capacity or conduct, although it need not be the reason given to the Applicant at the time of the dismissal.[121] The reason should be "sound, defensible or well-founded"[122] and should not be "capricious, fanciful, spiteful or prejudiced".[123] Where conduct of the Applicant is relied upon to justify the decision to terminate employment, I would need to be satisfied that the conduct as alleged, occurred.[124] A mere suspicion of conduct does not amount to a valid reason.[125]

[60] The reason for the Applicant's dismissal related in part to her conduct. The termination letter set out the reason for dismissal as follows:

Epworth Healthcare has therefore decided to terminate your employment on the basis that you can no longer perform your duties for the foreseeable future and in any event you have engaged in serious misconduct by refusing to comply with a lawful and reasonable direction and, further, by your conduct toward Ms Toop."[126]

[61] As indicated above, the Respondent also relies on an additional reason for the Applicant's dismissal: that the Applicant dishonestly denied to the Respondent that she used inappropriate language towards Ms Toop in a telephone call on 23 September 2016.[127]

• ➢ Refusal to comply with a lawful and reasonable direction

[62] The Applicant submits that a person's medical information is confidential and that the confidentiality of a patient's medical information is supported by very strong public interest considerations.[128] The Applicant says that there is an explicit statutory protection for the confidentiality of medical information set out in s.141(2) of the Health Services Act 1988 (HSA Act).[129] The Applicant submits that for this reason it exceeds the bounds of a lawful and reasonable direction and therefore cannot constitute a valid reason for dismissal.[130] The Respondent submits that this ground was not the basis for the Applicant's objection or refusal to comply with the Respondent's directions and says that to the contrary, the Applicant was providing quite an amount of private medical information to both Doctor Felman and the Respondent voluntarily at the time.[131] The Applicant says that the direction to provide confidential information as to her attendance on 30 June 2016 exceeded what was reasonable because of the following reasons:[132]

• no authority of which the Applicant is aware has done so far as to require the Applicant to give up a statutory right to the protection of medical information;

• there was no compelling circumstance for the provision of confidential information obtained without informed consent;

• there was a wealth of medical information available to the employer so that it could fulfil its OH&S obligations without requiring the provision of confidential information obtained in the circumstances of 30 June 2016;

• there was an ambiguity as to whether Doctor Felman had even requested blood tests which the Respondent never followed up;

• there was limited medical significance to the blood test results from 30 June 2016 in circumstances in which Doctor Felman was asked to make a prospective psychiatric assessment as to the Applicant's fitness of work;

• if the competing interests are to be balanced (in terms of what is reasonable) there was a genuine reason given by the Applicant for not wishing to release the results;

• the Respondent did not go back to Doctor Felman to understand why blood tests were critical as to a psychiatric assessment of the Applicant's future fitness for work and whether Doctor Felman could make a more definitive assessment of the Applicant; and

• the tests were conducted in the Applicant's private time.

[63] The Respondent says that the records being sought as part of the process by the Respondent was for the purpose of assessing the Applicant's ability to fulfil the inherent requirements of her role, which the Respondent submits is a lawful purpose.[133] The Respondent says that employers may and should in appropriate cases legitimately pursue in the fulfilment of their duty of care to the employee concerned and other employees in the workplace by ascertaining an employee's capacity to perform their role.[134] The Respondent submits that it was a reasonable direction because of the sensitive activity occurring at the workplace.[135]

[64] There is no dispute that the Applicant did not comply with the direction to consent to certain medical records held by the Respondent pertaining to the Applicant's treatment in the emergency department of Epworth Richmond on 30 June 2016 being provided to Doctor Felman. As is evident from the above, that refusal is said to be a refusal to comply with a lawful and reasonable direction. In the context of the present case, whether that reason for dismissal is a sound, defensible or well-founded reason depends in part on whether the Respondent was entitled to give the direction that it did and if so, whether it was reasonable.

[65] It seems clear that an employer is entitled to direct an employee to obtain a medical report if that direction is reasonable.[136] That entitlement may arise from the implied term in the contract of employment that each party will do all such things as are necessary to enable the other to have the benefit of the contract[137] or as a consequence of the employer's duty under occupational health and safety legislation,[138] or it seems to me from the corollary to that duty, the duty imposed on an employee under occupational health and safety legislation that an employee cooperate with his or her employer with respect to any action taken by the employer to comply with a requirement imposed by that legislation.[139] The entitlement might also arise from an employer's duty implied into the employment contract to take reasonable care for its employees.

[66] A direction to obtain a medical report may be reasonable if there is a genuine indication of the need for it,[140] or if there is a requirement to affirm an employee's continuing fitness for work,[141]or if there is a concern about meeting an obligation or duty imposed by applicable occupational health and safety legislation.[142] Ultimately, the question whether it is reasonable for an employer to request an employee to attend a medical examination will always be a question of fact as well a question of what reasonable terms should be applied to a requirement to undertake the medical examination.[143]

[67] It seems to me that in many cases an employer's right to require the provision of a medical report will be accompanied by a right to choose the medical practitioner who will provide a report.[144] It may also be the case that such a requirement may be accompanied by a direction to co-operate with the medical practitioner by providing information necessary for the medical practitioner to prepare a report. It is unnecessary to recite all of the circumstances in which that will be so. It is sufficient to observe that an employer will likely have that right when it seeks to so direct in furtherance of its obligations under occupational health and safety legislation. But as with all such matters, much will depend on whether that direction was reasonable, so for example, a direction to attend a particular medical practitioner might be a lawful direction but might be rendered unreasonable if the employer requires an employee to pay for that examination.

[68] Turning then to the circumstances of this case. There is no dispute about the requirement that the Applicant attend Doctor Felman for examination and indeed the Applicant attended without much demur. The issue is whether the subsequent direction by the Respondent to the Applicant to consent to provide additional medical records to Doctor Felman with a lawful and reasonable direction. I accept on the evidence that the Respondent, through its employees who were dealing with the Applicant, held a concern for the Applicant's welfare, and for her capacity to effectively carry out her duties as a theatre nurse in the workplace. It was concerned for the Applicant's mental health and for the safe functioning of the Applicant in carrying out her duties as a theatre nurse in the event that she returned to the workplace. Consequently, it seems clear that the Respondent was seeking to discharge its obligation to provide to the Applicant, other employees with whom the Applicant worked, and its patients, an environment that is without risk to health or safety, or at least one in which that risk is minimised. Such an obligation is a continuing one and is one that is imposed on the Respondent by, inter alia, occupational health and safety legislation. So far as the Applicant is concerned, a similar obligation is implied by law into the contract of employment that existed between her and Respondent.

[69] In the circumstances, I can well accept that the information that was sought was relevant to the assessment that the Respondent asked Doctor Felman to carry out. It may well be, but I need not decide, that in the circumstance the direction given was a lawful one. However, I am not persuaded that the direction was reasonable in the circumstances. The direction was not reasonable for the following reasons. First, it is to be remembered that that which was sought by the Respondent was a record of a private attendance at the Respondent's medical facility in the capacity of a patient during a period where the Applicant was on leave and not at work. Secondly, the Applicant made serious allegations that the medical procedures and tests conducted while she was at the emergency department of Epworth Richmond were carried out without her consent. The Respondent made no enquiry as to the veracity of the allegations made. As there is a dispute about whether particular medical procedures and tests were carried out without the Applicant's consent and the Respondent had knowledge of the allegation, that it made no enquiries as to the veracity of the allegations before giving the decision, is a significant factor which weighs against a conclusion that the direction was reasonable. Thirdly, knowing that the Applicant would not consent to the release of the material sought, as the Applicant points out, the Respondent made no enquiry of Doctor Felman as to why the material sought was necessary to determine the Applicant's fitness for work and moreover, whether Doctor Felman could make a more definitive assessment without the material. Instead, it persisted with the direction, without knowing whether compliance with it was necessary.

[70] In my view, the direction given and maintained in these circumstances was not reasonable. The failure or refusal to comply with that direction, as a reason for dismissal is therefore not one that can be said sound, defensible or well-founded. It does not provide a valid reason for the Applicant's dismissal.

• ➢ Inherent requirements of the job

[71] The Applicant says that Doctor Felman's report was an insufficient foundation to make good an assertion that the Applicant was unable to perform the inherent requirements of her job.[145] The Applicant relies on parts of Doctor Felman's report to make good her point. The Applicant says that there was no diagnosis, the position was not permanent, there were uncertainties and Doctor Felman required further information. The Applicant says that as of September 2016, the situation was uncertain and events had simply not reached the point at which it could be said that the Applicant was unable to perform the inherent requirements of her job.[146]

[72] The Respondent submits that Doctor Felman's report is clear in saying that at the time, the Applicant was unable to fulfil the inherent requirements of the job. The Respondent says that it was entitled to conclude, as it did, that the Applicant lacked capacity to perform her job for the foreseeable future. The Respondent says that the Applicant lacked capacity and that was a valid reason justifying her dismissal, not only as demonstrated by Doctor Felman's report but also taking into account the Applicant's employment history and all of the Applicant's behaviours to date.[147]

[73] Doctor Felman was asked to answer specific questions by the Respondent concerning the Applicant's fitness and capacity to return to her role as a theatre nurse. These questions together with the answers given are recorded in Doctor Felman's report [148]as follows:

1. Vanessa's capacity to return to her role as a Theatre Nurse at Epworth Cliveden

On the basis of the information available to me I would have significant concerns regarding her returning to that role at the current time.

1. Vanessa's capacity and ability to understand and adhere to Epworth's policies and procedures.

The employer information raises significant concerns regarding her capacity to do this.

1. Vanessa's ability to take reasonable direction instruction from her manager without feeling victimised.

On the available information including background information and Ms Naicker's self-report, it does not appear that this is possible.

1. The nurse's ability to be a flexible, collegiate team member and work within Epworth values and behaviours

There is significant information from the employer to conclude that this has not been possible in recent times and no evidence to indicate that this has changed since being off work. Given the stark difference of opinions between the employer and the worker, it would be reasonable to have additional, uncensored information to assist in this evaluation, including information from the Code Grey and witness statements regarding her alleged presentations at work, if an investigation was undertaken as well as blood test and urine test findings.

1. By referring to the position description, does her condition impact the safe performance of her duties? If so, what is the status of her condition? Is her condition temporary or permanent?

There is information to raise significant concern regarding Ms Naciker's capacity to perform her role safely, in a sustainable manner, although further information is required to clarify this (given the marked difference of opinion between the worker and employer), and determine the cause. On the basis of the information available to me, I would consider an Alcohol Misuse Disorder high up on the list of differentials, although further information would be required to corroborate this, as detailed above.

Given the uncertainties regarding the diagnosis and her prior history of being able to perform her role, it is not possible to conclude that her difficulties are permanent.

1. What are the prospects of a sustained recovery in the foreseeable future?

This will depend on the specific diagnosis. If her condition is substance related (e.g. alcohol) or an adjustment disorder, recovery is possible with engagement in appropriate treatment.

1. Is she currently fit to perform the normal duties, on a sustained basis, in her position? If there is a limit on the number of hours per day that she can safely perform these duties, please explain this.

On the available information I would not consider Ms Naicker fit to perform her duties.

1. What work (if any) can she safely perform in her role at Epworth? When will she be able to perform that work? Which tasks/aspects of her position can she not safely perform?

I recommend that Ms Naicker be considered totally unfit for work at the current time, while further information is gathered regarding her condition. This information would include independent information and health information.

1. If she is deemed fit to perform the duties of her position on a consistent and sustained basis, is there a risk of exacerbating the condition? If so, what is the level of risk and how may it be avoided?

1. If she cannot currently perform certain tasks/aspects of her position on consistent and sustained basis, when (if at all) will she be able to do so?

This is currently unclear given the uncertainty regarding her presentation.

1. If she is fit to work, what adjustments or accommodations, if any, could be made to enable Vanessa to safely perform the normal duties of her position for Epworth?

If and when Ms Naicker returns to work, I recommend that she commence under supervision for the first few weeks, given the reported concerns and the safety critical nature of her role."

[74] It seems to me plain that Doctor Felman held concerns about the capacity of the Applicant to carry out her functions as a theatre nurse safely. But, this alone did not in my view justify the Respondent concluding that the Applicant could not fulfil the inherent requirements of her job. Doctor Felman's report needs to be viewed in light of the written assessment by Doctor Chen, the psychiatric registrar at Saint Vincent's Hospital of 18 July 2016 which is based on an assessment carried out the day following the 30 June 2016 incident.[149] In that assessment Doctor Chen opines that there was no evidence of any acute psychiatric issues and that the incident on 30 June 2016 was most likely the result of "alcohol intoxication". Doctor Chen also noted that there were "no acute risk issues noted" and that the Applicant was discharged and was encouraged to follow-up through her GP.

[75] Doctor Felman's report also needs to be viewed in the context of the Respondent having received medical clearances asserting that the Applicant was fit to resume duties from the Applicant's treating medical practitioners.[150]

[76] Thus, at best the Respondent had conflicting and inconclusive medical evidence. Many of Doctor Felman's conclusions are themselves circumspect. Moreover, as Doctor Felman notes she recommended "that Ms Naicker be considered totally unfit for work at the current time, whilst further information is gathered regarding her condition. This information would include independent information and health information."[151] (emphasis added)

[77] It seems plain that further information was required which included the information the subject of the direction but was not limited there to. The assessment was a holding position pending the provision of further information. It was not a final assessment and does not provide a sound basis from which it can reasonably be concluded that the Applicant was unable to perform the inherent requirements of her position with the resultant conclusion that termination of employment should occur. Indeed, Doctor Felman contemplates that the Applicant may return to work and notes that "if and when Ms Naicker returns to work, I recommend that she commences under supervision for the first few weeks, given the reported concerns and safety critical nature of her role."[152]

[78] The Respondent took no steps, beyond the direction given to the Applicant, to gather, or request that the Applicant gather, further independent information and health information as suggested by Doctor Felman. The Respondent took no steps to consult Doctor Felman further.

[79] In all of the circumstances, whilst I am persuaded that it is likely that the Applicant struggles with alcohol, I am not persuaded that on the conflicting and inconclusive medical evidence available to the Respondent that it was reasonably open to the Respondent to conclude as it did. Nor am I persuaded Doctor Felman's report read in isolation provides a sound, defensible or well-founded reason for concluding that the Applicant was unable to perform the inherent requirements of her job. Doctor Felman's report does not even land on a diagnosis as is evident from the answer she gives to the question: what are the prospects of a sustained recovery in the foreseeable future?"[153]

[80] It follows that I am not satisfied on the evidence that the Applicant was unfit or unable to perform the inherent requirements of her position nor am I persuaded that it was reasonable for the Respondent to so conclude. It follows that that reason for her dismissal does not provide a valid reason for dismissal.

• ➢ Conduct towards Ms Toop

[81] The Applicant now accepts that the language used was inappropriate but says that her unsatisfactory behaviour is mitigated by several circumstances,[154] which are as follows:

• the Applicant was distressed and upset during the phone call and her conduct was not premediated;

• she had been absent from work nearly 3 months; and

• she had a short time before receiving the letter dated 21 September 2016 and it was highly likely that the Applicant's employment was about to be terminated.

[82] The Applicant submits that her behaviour was aberrant on that occasion and says that it is disproportionate to the gravity of the misconduct in respect of which the Respondent acted.[155]

[83] The Respondent says that none of the above factors justifies or mitigates the conduct which occurred on 23 September 2016.[156] The Respondent instead says that the Applicant repeated the language throughout the phone conversation.[157] The Respondent submits that the language used was repugnant to the employee/employer relationship, and it was serious misconduct and that it is also a valid reason for the dismissal.[158]

[84] As I have earlier indicated, I accept the evidence given by Ms Toop as to the content of the conversation and the language used by the Applicant directed to Ms Toop during a telephone conversation between the two on 23 September 2016. The Applicant's account is wholly unreliable not least of all because until the commencement of the hearing of this application she maintained that she did not engage in the conduct at all. I do not accept that the circumstances and events surrounding the conversation, in which the language was used, mitigate the severity of it. It is one thing to be angry or upset about a perceived injustice, it is quite another to channel that anger at another employee who is doing no more than carrying out her duties and to do so in a manner that is patently threatening. Moreover, the Applicant has had a number of opportunities to admit the conduct and to apologise to Ms Toop. Instead, she boldly denied the allegation during the meeting at which the allegation was put on 29 September 2016. Not content with a denial, during that meeting the Applicant made the unfounded (and untruthful) allegation that "they are lying", which was plainly directed to her accuser, Ms Toop. In both of her witness statement and in submissions filed in support of her application several months after the incident, the Applicant maintains the denial.

[85] I would more readily accept that the conduct and language used by the Applicant was aberrant and the product of stress brought about in the circumstances, if the Applicant had taken some steps to make an admission and offer an apology at a much earlier time than that which occurred. I do not accept the Applicant's evidence about how and when she came to the realisation that she may have uttered the words alleged. The explanation is akin to "a road to Damascus" experience, and other than in a biblical sense, is simply implausible and strikes me as a recent invention calculated to negate the severity of the conduct in which she engaged rather than a truthful explanation of that which occurred. That she accepts little blame for her conduct is evident in the oral evidence given by the Applicant about the conversation, to which earlier reference has been made.

[86] The conduct of the Applicant during the telephone conversation of 23 September 2016 directed towards Ms Toop was serious, inappropriate, threatening, inconsistent with her obligations as an employee and I accept the Respondent's submissions that it was repugnant to the employment relationship. It was on any view, conduct of a serious kind and provides a valid reason for the Applicant's dismissal.

• ➢ Dishonesty

[87] The Applicant says that her fleeting denial was not conduct of sufficient gravity to warrant the termination of employment in circumstances in which there was no prior allegation of dishonesty and the Applicant had no forewarning that the issue was to be raised in the meeting. The Applicant submits that it was a reflex reaction, not seriously maintained and is best characterised as a single, foolish act.[159] The Respondent submits that the Applicant's evidence in respect of when she remembered the contents of her conversation with Ms Toop is implausible.[160] The Respondent submits that the Applicant's denials to the Respondent and her inconsistent position while giving evidence to the Commission demonstrate that she cannot be trusted to be honest in the future with her employer.[161]

[88] The Applicant's submissions cannot be accepted. There was no fleeting denial. The so-called fleeting denial continued in the application before me in as much as the Applicant filed a witness statement in which she denied the conduct and approved the filing of an outline of written submissions in which she also disputes having engaged in verbal abuse or threatening conduct towards Ms Toop on 23 September 2016. Moreover, the inconsistency in her evidence before me about the conduct, which she now says she accepts occurred, serves only to underscore that the Applicant does not appreciate the nature nor the gravity of the conduct in which she engaged. In addition, there was more than a mere denial during the meeting at which the allegation was put to the Applicant. The Applicant alleged in effect that Ms Toop was lying. That allegation was plainly false and the Applicant must have known it to be false but made it nonetheless. That conduct simply adds to the seriousness of the false denial. An employee has an obligation to be truthful in answers given to an employer when an employer is conducting an enquiry into conduct of the employee. The Applicant failed in discharging that obligation. I accept that the denial was dishonest. In the circumstances, I am satisfied that the Applicant's dishonest denial provides a valid reason for the dismissal.

[89] The valid reasons I have identified weigh strongly against an unfair dismissal conclusion.

[90] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made,[162] in explicit terms,[163] and in plain and clear terms.[164] In Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport),_[165]_a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 observed:

"As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted."[166]

[91] There is no dispute, and I am satisfied that the Applicant was notified of the Respondent's reasons for dismissing her save for the dishonest denial reason, on which the Respondent also relies. The dishonest denial as a reason could not be put to the Applicant as the fact that there had been a dishonest denial only became clear when the Applicant made the admission to her conduct during the evidence. In these circumstances, this matter weighs against an unfair dismissal conclusion.

Opportunity to respond - s.387(c)

[92] An employee protected from unfair dismissal should be given an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the employee. Each of the allegations including the conduct involving Ms Toop was put to the Applicant during the meeting on 29 September and the Applicant was given an opportunity to respond and did so. She was not given an opportunity to respond to the dishonest denial allegation for the reasons given earlier. In the circumstances, this matter also weighs against an unfair dismissal finding.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[93] If an employee protected from unfair dismissal has requested that a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse to allow that person to be present. It is clear from the plain language of s.387(d) of the Act that this consideration is directed to an employer's unreasonable refusal to allow a support person to be present. It is not concerned with whether an employer offered the employee such an opportunity. In most cases, this section will be engaged if the employee asks for a support person to be present and the employer refuses the request.[167] It may well be appropriate, in some cases, to consider the overall circumstances in which meetings to discuss an employee's performance, capacity and conduct or dismissal occurred to properly determine whether there was an unreasonable refusal by the employer to allow the employee to have a support person present.

[94] There was no refusal in the present case. The Applicant was invited to have, and had a support person present at the meeting to discuss the allegations which resulted in her dismissal. In the circumstances, this matter weighs against a conclusion that the dismissal was unfair.

Warnings regarding unsatisfactory performance - s.387(e)

[95] If an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee's capacity than their conduct.[168] For present purposes, the Applicant was dismissed for conduct and not performance, and therefore this consideration is not relevant. The Applicant was not dismissed for performance reasons. The matter therefore is neutral.

Impact of the size of the Respondent on procedures followed - s.387(f)

[96] The Respondent is a large employer. There is no evidence that the Respondent's size, in and of itself, affected the procedure adopted in effecting the dismissal. Further, the Respondent did not make any submission about this factor and the Applicant submits that this is a neutral factor.[169] In the circumstances, I consider this matter to be neutral.

Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[97] There was no absence of a dedicated human resources function. It is apparent that a human resources manager was involved throughout the process leading up to the Applicant's dismissal and in the dismissal of the Applicant. The Applicant submits that this is a neutral factor[170] and again the Respondent did not make any submission in respect of this factor. In the circumstances, I consider this matter to be neutral.

[98] Section 387(h) provides the Commission with broad scope to take into account any other matters it considers relevant. The Applicant submits having regard to the Applicant's period of service of six years, the dismissal was disproportionate to the gravity of any misconduct to impose a sanction of dismissal in respect of the events which occurred and the in the circumstances in which they occurred.[171] The Applicant says that the dismissal was harsh given that there were no ongoing problems of dishonesty.[172]

[99] I do not consider dismissal to be disproportionate to the conduct in which the Applicant engaged during her conversation with Ms Toop on 23 September 2016. As I have already found, the conduct was serious, inappropriate, threatening and inconsistent with her obligations as an employee. That the Applicant has been employed for six years does not diminish the seriousness of the conduct nor render the response disproportionate. Moreover, the dishonest denial simply diminishes an available credible argument as to proportionality. It must also be remembered that the Applicant was paid 4 weeks' pay in lieu of notice, when the Respondent was likely entitled to simply summarily dismiss the Applicant. That payment further ameliorates any residual harshness that might pertain to the dismissal. None of the matters raised weigh in the balance in a way that would result in a conclusion that the dismissal was unfair.

[100] No other relevant matter was identified.

[101] Taking all of these matters into account and for the reasons given in this decision, I have come to the conclusion that the Applicant's dismissal was not harsh, unjust or unreasonable.

[102] In all the circumstances therefore the dismissal was not unfair.

[103] The Applicant's dismissal from employment with the Respondent was not unfair. The application for an unfair dismissal remedy is dismissed. An order to that effect is separately issued in PR597273.

[9] Respondent's Outline of Submissions dated 14 July 2017 at [3]; Exhibit 1 at NS-26.

[11] Section 396 of the Fair Work Act 2009.

[13] Exhibit 1 at [18], Applicant's Outline of Submissions dated 11 August 2017 at [5a].

[15] Applicant's Outline of Submissions dated 11 August 2017 at [5b].

[21] Exhibit 8 at [10] - [12]; Exhibit 1 at [28] - [31].

[41] Exhibit 1, NS - 21 (second document).

[62] Exhibit 1 at [40]; Exhibit 8 at [18].

[75] Exhibit 1 at [54] - [57] and NS-27, NS-29.

[92] Exhibit 1 at [48], NS-21; Exhibit 8 at [28].

[94] Exhibit 1 at [49], NS-22; Exhibit 8 at [29]. .

[99] Exhibit 1 at [52], NS-25; Exhibit 8 at [31].

[117] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14].

[118] Applicant's Outline of Submissions, 11 January 2016, Applicant's Final Submissions, 26 February 2016; Respondent's Outline of Submissions, 29 January 2016; Respondent's supplementary Outline of Submissions, 19 February 2016 and Respondent's Final Submissions, 2 March 2016.

[121] Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21; (1931) 45 CLR 359 at 373, 377-378.

[122] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

[124] King v Freshmore (Vic) Pty Ltd, Full Bench AIRC, 17 March 2000, (Print S4213) at [23]-[26].

[125] Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.

[128] Transcript PN121, Applicant's Final Submissions dated 11 August 2017 at [37].

[132] Applicant's Final Submissions dated 11 August 2017 at [42].

[135] Respondent's Outline of Submissions dated 11 August 2017 at [18].

[136] See for example Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32 at [61]; Thompson v IGT (Aust) Pty Ltd [2008] FCA 994; (2008) 173 IR 395 at [48] - [49]; Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603; (2002) 118 FCR 395 138 See s. 21 of the Occupational Health & Safety Act 2004 (Vic)

[137] Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32 at [66]

[139] See for example s. 25(1)(c) of the Occupational Health & Safety Act 2004 (Vic)

[140] Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603; (2002) 118 FCR 395

[142] Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32

[143] Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603; (2002) 118 FCR 395 at [68]; Thompson v IGT (Aust) Pty Ltd [2008] FCA 994; (2008) 173 IR 395

[144] See for example Grant v BHP Coal Pty Ltd [2014] FWC 1712 and Burdon v Huon Valley Mushrooms [2007] AIRC 395

[145] Applicant's Final Submissions dated 11 August 2017 at [45].

[147] Respondent's Outline of Submissions dated 11 August 2017 at [20] - [24].

[148] Exhibit 1, NS - 19 at pages 9 and 10.

[151] Exhibit 1, NS - 19 at p 10 (answer to question 4).

[152] Exhibit 1, NS - 19 at p 10 (answer to question 7).

[153] Exhibit 1, NS - 19 at p 9 (answer to question 2 where second appearing).

[154] Applicant's Final Submissions dated 11 August 2017 at [50].

[157] Respondent's Outline of Submissions dated 11 August 2017 at [26].

[158] Transcript PN1340, Respondent's Outline of Submissions dated 11 August 2017 at [27].

[159] Applicant's Final Submissions dated 11 August 2017 at [57].

[162] Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

[163] Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137 at 150-151.

[164] Previsic v Australian Quarantine Inspection Services Print Q3730.

[165] (2000) 98 IR 137.

[167] See also Fair Work Bill 2008 - Explanatory Memorandum at [1542].

[168] Annetta v Ansett Australia (2000) 98 IR 233 at 237.

[169] Applicant's Final Submissions dated 11 August 2017 at [58].

[170] Applicant's Final Submissions dated 11 August 2017 at [58].

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