DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Celia O’Keefe
v
Ramsay Health Care Australia Pty Limited
(U2021/1346)

Application for an unfair dismissal remedy – Application for an unfair dismissal remedy – Applicant resigned from her employment – Whether Applicant forced to resign – Applicant not dismissed – Application dismissed.

Overview

[1] Ms Celia O’Keefe (the Applicant) applies under s. 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy. The Applicant was employed by Ramsay Health Care Australia Pty Limited T/A John Flynn Private Hospital (the Respondent) as a Registered Nurse – Perioperative Educator from 1 July 2009 until she resigned from her employment on 28 January 2021. It is not in dispute that the Applicant resigned from her employment. The Applicant contends that she was dismissed within the meaning in s. 386(1)(b) of the FW Act by being forced to resign because of conduct or a course of conduct engaged in by her employer and was thereby unfairly dismissed.

[2] In summary, the Applicant contends that she was bullied by her manager Ms Renae Balcke and that the Respondent’s Chief Executive Officer Mr Adam Stevenson, failed to deal with a complaint the Applicant made about Ms Balcke’s conduct, giving the Applicant no option but to resign. Initially the Applicant sought the remedy of reinstatement and later, compensation. The Respondent objects to the application asserting that the Applicant was not dismissed nor forced to resign from her employment, but rather that the Applicant resigned voluntarily.

[3] Much of the Applicant’s evidence is subjective and is based on perceptions about her treatment. I do not doubt that the Applicant has a strong belief in the righteousness of her position, and I accept that the Applicant is entitled to ventilate that position. I am also conscious that there is some likelihood that the discussion in this Decision of the Applicant’s allegations and evidence, will cause distress to the persons against whom the allegations are made and that persons who gave evidence on behalf of the Applicant may also be distressed by the discussion of their evidence. However, the Applicant advanced her case in a manner which makes it necessary to examine her allegations in some detail.

[4] Other than the course of conduct the Applicant relies on in asserting that she was forced to resign her employment and was dismissed within the meaning in s. 386(1)(b), the Applicant does not contend that her employment was terminated on the employer’s initiative as provided in s. 386(1)(a). For reasons which will become apparent, it is only necessary for me to consider whether the Applicant was dismissed within the meaning in s. s. 386(1)(b) of the FW Act. To determine this point, it is necessary that I consider whether, on an objective analysis of all the circumstances, the conduct or course of conduct alleged by the Applicant to have forced her to resign, was the principal constituting factor leading to the resignation and was intended by the Respondent’s managers to bring the Applicant’s employment to an end or had that probable result, such that the Applicant had no effective or real choice but to resign.

[5] I have not made a finding as to whether the conduct described by the Applicant and attributed to Ms Balcke, is bullying within the meaning in s. 789FD of the FW Act, or bullying simpliciter. It has not been necessary to make such a finding. I am also of the view that even if all the conduct complained of by the Applicant did occur, that conduct, considered objectively, was not conduct of the kind encompassed by s. 386(1)(b) of the FW Act, and the Applicant was not forced to resign. Accordingly, the Applicant was not dismissed and cannot make an application for an unfair dismissal remedy. My reasons for this conclusion are set out below.

Preliminary matters

[6] The application was originally made against Affinity Health Limited T/A Ramsay Healthcare. The Form F3 Response to the application stated that the Applicant’s employer was Ramsay Health Care Australia Pty Ltd T/A John Flynn Private Hospital. When this matter was identified, with the agreement of the parties, permission was granted for the application to be amended so that it was made against the entity which employed the Applicant. Section 396 of the Act requires that four specified matters must be decided before the merits of the application may be considered. There was no contest between the parties regarding these matters, and I find that:

(a) the application was made within the period required by s.394(2);

(b) the Applicant was a person protected from unfair dismissal;

(c) the Respondent was not a “small business employer” as defined in s.23 of the FW Act; and

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

[7] Consistent with s. 397 of the Act, I decided to conduct a hearing to determine the matter on the basis that there were disputed issues of fact and I considered this to be the most appropriate means to resolve them. The hearing was held in Brisbane on 10 and 11 May 2021. At the hearing, the Applicant was represented by Ms J Urquhart. Ms Urquhart is a lawyer employed in a corporate capacity but was acting in a private capacity for the Applicant. The Respondent was represented by a paid agent, Mr C Muir of Employer Services Pty Ltd. Permission was granted pursuant to s. 596 of the Act for the parties to be represented by a lawyer and paid agent respectively, on the basis that the matter is complex, I was satisfied that it would be more efficiently dealt with if the parties were represented and no issues of fairness arose.

[8] The Applicant gave evidence on her own behalf at the hearing and provided two witness statements. 1 Statements of evidence were also tendered by the Applicant from the following persons without objection and those persons were not required for cross-examination:

•  Ms Louella Cooper, RN and Scrub Scout, at the John Flynn Hospital; 2

•  Ms Paula Archer, Nursing Unit Manager of Scrub Scout at the John Flynn Hospital until 5 February 2021; 3

•  Mr Richard O’Keefe, the Applicant’s father; 4

•  Ms Marilyn Westnidge, Registered Nurse and Workplace Representative within the Respondent’s Perioperative Department; 5 and

•  Ms Moira Briggs, Assistant Director of Clinical Services – Perioperative for the Respondent from October 2013 to January 2017. 6

[9] Evidence for the Respondent was given by:

•  Ms Renae Balcke, Assistant Director of Clinical Services – Perioperative for the Respondent; 7

•  Mr Adam Stevenson, Chief Executive Officer of the Respondent; 8 and

•  Ms Denise Hartley, Director of Clinical Services for the Respondent. 9

[10] Prior to the substantive hearing, the Applicant sought orders requiring the production of documents. Orders were made in relation to some of the documents sought. The Applicant also sought orders requiring the attendance of the Human Resources Managers for Ramsay Health Care and the John Flynn Hospital. The orders were issued on the basis that both parties had been granted permission to be represented and the orders contained a note to the effect that the persons required to attend could object and that any objection would be considered. The fact that the orders were issued does not establish a presumption that they cannot be objected to on the usual grounds including relevance or that compliance would be unduly onerous.

[11] The Respondent objected to the attendance of those persons being required. After conducting a hearing to deal with the Respondent’s objection, I upheld that objection. My reasons for doing so were that it was apparent that the purpose of the Applicant seeking the attendance of those persons was to explore why they were not called as witnesses by the Respondent and to determine what, if any, advice they provided to the Respondent’s managers in relation to the events relied on by the Applicant as a basis for her assertion that she was forced to resign.

[12] In my view this is not an appropriate basis upon which persons should be required to attend a hearing. It is for the Applicant to establish the course of conduct on the part of the Respondent’s managers upon which she bases her claim of forced resignation and whether a witness is called to respond to those assertions is a matter for the Respondent and its representative. A failure by the Respondent to call evidence in response to the evidence of the Applicant, may result in the Applicant’s evidence being accepted on the basis that it is not contested. Further, if there is an unexplained failure by the Respondent to call a witness, an inference may be drawn (in appropriate circumstances) that the evidence of the witness would not have assisted the Respondent.

[13] I turn now to consider the statutory framework and the approach to determining whether a person has been dismissed within the meaning in s. 386(1)(b) of the FW Act.

Legislative provisions

[14] Section 386 of the FW Act provides as follows:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.” 

[15] It is also relevant that the term “conduct” is defined in s. 12 of the Act to include an omission.

The approach to considering whether a person has been dismissed

[16] The general approach to considering whether a person has been dismissed is set out in the Decision of a full Bench of the former Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd 10 where it was stated that:

“[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:

‘[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.’ ”

[17] The Full Bench in O’Meara also cited an earlier Decision of a Full Bench in ABB Engineering Construction Pty Ltd v Doumit  11 where it was observed that:

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

[18] The Full Bench in O’Meara went on to observe that:

“In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether ‘the act of the employer [resulted] directly or consequentially in the termination of the employment.’ Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” (footnotes omitted)

[19] In Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli 12 a Full Bench of the Commission noted that:

“[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a “forced” resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the “termination at the initiative of the employer” formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows:

‘1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of 'termination at the initiative of the employer' (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).

1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).

1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:

•  where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or

•  where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.’

[34] It is apparent, as was observed in the decision of the Federal Circuit Court by Whelan J in Wilkie v National Storage Operations Pty Ltd, that “The wording of s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No. 1) and summarised by the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd” (footnotes omitted). The body of pre-FW Act decisions concerning “forced” resignations, including the decisions to which we have earlier referred, has been applied to s.386(1)(b): Bruce v Fingal Glen Pty Ltd (in liq); Ryan v ISS Integrated Facility Services Pty Ltd; Parsons v Pope Nitschke Pty Ltd ATF Pope Nitschke Unit Trust.” (footnotes omitted)

[20] After citing these cases, Commission Hampton in Sathananthan v BT Financial Group Pty Limited 13 distilled the general legal principles into the following succinct and useful formulation:

•  The question as to whether the resignation was forced within the meaning of the FW Act is a jurisdictional fact that must be established by the applicant;

•  A termination at the initiative of the employer involves the conduct (or course of conduct) engaged in by the employer as the principal constituting factor leading to the termination;

•  The employer must have engaged in some conduct that intended to bring the employment relationship to an end or had that probable result;

•  Conduct includes an omission; 

•  Considerable caution should be exercised in treating a resignation as other than voluntary where the conduct of the employer is ambiguous and it is necessary to determine whether the employer’s conduct was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign; and

•  In determining the question of whether the termination was at the initiative of the employer, an objective analysis of the employer’s conduct is required.

[21] I have applied these principles to my consideration of the evidence in the present case.

Evidence

[22] The Applicant’s case in relation to forced resignation can be summarised as follows. The Applicant has been a Registered Nurse since 1999, a Perioperative Nurse for 21 years and a Perioperative Educator for 17 years. The Applicant states that her qualifications include: a Bachelor of Nursing with distinctions from the University of Sydney; three post-graduate certificates in Perioperative Nursing, Paediatric Nursing, in Midwifery for RNs. The Applicant has also been awarded a scholarship to attend the American Operating Room Nurses Conference in Chicago and a scholarship to attend the American Academy of Orthopaedic Surgeons Conference in Washington DC. Over her career, the Applicant has attended significant numbers of conference and workshops to ensure that she can provide the most up to date information to nurses and ensure the safety of patients.

[23] As previously noted, the Applicant was employed by the Respondent as a Level 3 Registered Nurse - Perioperative Educator from 1 July 2009 until she resigned from the role effective 28 January 2021. The Applicant said that in accordance with her contract of employment, she officially reported to the Staff Development Manager and to the Assistant Director Clinical Services (ADCS) Perioperative, which were both Level 4 roles. At the time the Applicant commenced employment those roles were respectively filled by Ms Anna Davey and Ms Gayle Wilson.

[24] The Applicant tendered a position description for her role 14 and her contract of employment15. The position description indicates that her position is Level 3 reporting to the Staff Development Manager. There is no apparent reference in the position description to the ADCS Perioperative position. There is a reference to a position titled “Perioperative Nurse Manager”. The contract of employment also refers to the Applicant’s position reporting to Staff Development Manager Anna Davey. There is no reference in the contract of employment or the position description, to positions that the Perioperative Educator reports to, being designated at a particular Level, notwithstanding that these positions may have been designated at Level 4 at the relevant time.

[25] The persons said by the Applicant to have been involved in the circumstances related to her resignation include:

•  Ms Renee Balcke – Assistant Director of Nursing (ADCS) Perioperative Services who was the Applicant’s direct manager;

•  Mr Adam Stevenson – Chief Executive Officer (CEO) of the Respondent;

•  Ms Michelle Mulcahy – Human Resources Business Partner for the Respondent;

•  Ms Angela Murray – a Level 2 employee who was Novice Nursing Co-ordinator, reporting to Ms Archer;

•  Ms Denise Hartley – Director of Nursing;

•  Ms Paula Archer – Intraoperative Nursing Unit Manager;

•  Ms Gretchen Thorpe – Acting Anaesthetic Nursing Unit Manager;

•  Ms Louella Cooper – Registered Nurse Perioperative; and

•  Ms Marilyn Westnidge – Registered Nurse and Workplace Representative.

[26] It is necessary to deal with issues that the Applicant had with Ms Balcke and her management. In support of her allegations about Ms Balcke’s conduct the Applicant tendered documents which she referred to as “file notes”. It emerged during her evidence that some of the file notes were records of the Applicant’s recollection of meetings or interactions with Ms Balcke and other documents were emails which the Applicant sent to Ms Balcke and which she asserts Ms Balcke did not respond to. The Applicant recorded her views about this non-responsiveness by hand-writing notations on the emails. The file notes tendered by the Applicant comprised three records of meetings or interactions with Ms Balcke and ten emails annotated by the Applicant. These documents were not provided to the Respondent prior to the Applicant preparing her statement of evidence for the present case.

[27] In relation to the events leading to her resignation, the Applicant said that in early 2020 she began noticing a change in Ms Balcke’s behaviour towards her which took the form of ignoring, belittling and making decisions that made it difficult for the Applicant to carry out her role. The Applicant said that her concerns were heightened following a meeting with Ms Balcke on 24 July 2020, where the Applicant was informed of a change to her role so that she now reported to the Level 3 Intraoperative Nursing Unit Manager. The Applicant described this as a unilateral change to her reporting line. According to the Applicant, during this discussion Ms Balcke had a copy of the Applicant’s employment contract on the table in front of her “in a threatening manner”. Also discussed was the Applicant’s involvement in program referred to as the “Novice Program”. The Novice Program provides for nurses who have limited or no experience working in operating theatres, to receive specialised training including from “preceptors” (teachers or instructors) who are intended to be assigned to and rostered with a particular novice. The Novice Program is conducted by Ms Murray, the Novice Nursing Co-ordinator.

[28] The Applicant tendered a file note of the meeting of 24 July 2020, which contains numerous observations on the part of the Applicant about Ms Murray’s lack of qualifications and experience necessary to perform her role and issues about the Applicant’s involvement (or non-involvement) with the Novice Program. The Applicant said that it was after this meeting, on the advice of her father, that she commenced keeping detailed file notes recording her interactions with Ms Balcke and her concerns about being bullied.

[29] Ms Briggs said in her evidence that the during the period of her employment as ADCS – Perioperative, the Applicant was employed as a Perioperative Educator, reporting directly to Ms Briggs and was a key member of the team with whom Ms Briggs had an excellent working relationship. Ms Briggs also said that as it was important for the ADCS to be available for and to support the Perioperative Educator, and she had regular meetings with the Applicant to discuss aspects of her role. Further Ms Briggs said that a core component of the Applicant’s role was to sit on the Policy Document Control Committee which oversees all documents across the Hospital and requires Perioperative Education input. Ms Briggs was happy for the Applicant to attend as her representative given that the Applicant was responsible for writing and reviewing all perioperative policies. Ms Briggs said that she transitioned to a different role prior to her retirement and during this period had a discussion with the Applicant in which the Applicant informed her that she was distressed about her present circumstances, that she and other staff were unhappy in the workplace.

[30] The Applicant also detailed incidents described by her as ostracising and bypassing, diminution of her role, and unreasonable direction or instruction given to her by Ms Balcke. In relation to the diminution of her role, the Applicant referred to her removal from the Policy Document Control Committee (PDCC) which oversees documents, forms or policies across the whole hospital. The Applicant said that the PDCC requires perioperative education input, on the basis that perioperative accounts for approximately half the hospital with general medical wards accounting for the other half. The Applicant tendered minutes of a meeting of the PDCC conducted on 4 November 2020 recording that it was decided that the Staff Development Manager represents educational requirements and that to reduce duplication, other educators are not required to attend. 16

[31] The Applicant said that she was informed by Ms Balcke that she no longer needed to attend the PDCC meeting on the basis that both Ms Balcke and the Staff Development Co-ordinator (who is the head educator) also sat on the Committee. The Applicant said that the Staff Development Co-ordinator had no knowledge of the specialised perioperative environment and Ms Balcke had no experience in writing policy to the best of the Applicant’s knowledge. Based on her qualifications and experience, the Applicant continued to write and review all perioperative policies but now required Ms Balcke’s guidance as the Applicant no longer attended PDCC meetings. The Applicant said that often she did not receive responses to emails she sent to Ms Balcke seeking such guidance. The Applicant also detailed her exclusion by Ms Balcke from involvement with the Novice Program and said that although this responsibility is not contained within her position description, she was tasked with it before Ms Murray was employed.

[32] Another issue in relation to Ms Balcke is what the Applicant and witnesses on her behalf, characterise as “conflict of interest” between some of the persons identified above. In this regard, the Applicant states that Ms Balcke, Ms Murray and Ms Mulcahy have a close friendship extending beyond the workplace. Ms Murray and Ms Mulcahy are sisters and Ms Murray is engaged to the former CEO of the Respondent, who is now employed by the Respondent’s parent company at Pindarra Private Hospital. The Applicant contends that this conflict of interest created significant issues within the perioperative area. Ms Westnidge and Ms Archer supported the evidence of the Applicant in relation to the conflict of interest associated with the relationships between Ms Balcke, Ms Murray and Ms Mulcahy. Ms Westnidge maintained that this should have been acknowledged and managed by the Respondent but was not. Ms Archer said that the conflict of interest created issues within the perioperative unit and undermined her supervision of Ms Murray.

[33] The Applicant tendered a file note in relation to the alleged conflict of interest that was said to have been written by her on 25 July 2020. In that document the Applicant opines about the amount of time that is spent by Ms Balcke with Ms Murray while other staff, including the Applicant, have no access to Ms Balcke either in person or by telephone as Ms Balcke’s phone is said to be mostly diverted to the Receptionist. The Applicant goes on in the document to point out the relationships between Ms Balcke, Ms Murray and Ms Mulcahy, and while stating that she does not suggest that Ms Murray was not appointed on merit, states that Ms Balcke: “… has shown exceptionally poor professional judgement in not being open and transparent with her interactions with [Ms Murray] and clearly communicating the reasoning behind her decisions when delegating tasks to [Ms Murray] and constant closed door meetings, to avoid the assumption that is widely held amongst the staff of favourtism”. 17 The Applicant also sets out aspects of Ms Balcke’s position description in the file note and asserts that she has reviewed these and believes that Ms Balcke is “breaching” many of those criteria.

[34] Another issue that the Applicant had with Ms Balcke was the management of the Novice Program. Examples of these issues given by the Applicant were said to be an email and a file note of a meeting that the Applicant had with Ms Balcke on 23 October 2020 in relation to responsibility for allocating preceptors to novice staff and whether this should be done by Ms Murray or the Applicant. The file note records that during the meeting on 23 October, Ms Balcke gave advice to the Applicant about the order that she should have assigned to recipients of the email, which the Applicant describes in the file note as “Incredulous and pathetic to say the least” and goes on to record that she informed Ms Balcke that this advice was “extremely petty” and that the Applicant “did not have time in my day to think up ways that I could offend Angela [Murray].” 18 The file note concludes with an additional observation that it is virtually impossible for the Applicant to make contact with Ms Balcke because her door is always closed and her phone diverted to reception but that the moment it seems that the Applicant is stepping on Ms Murray’s toes, she has a meeting with Ms Balcke the next day.

[35] The Applicant also said that the fact that Ms Murray was asked “on more than one occasion” by Ms Balcke to act in Ms Balcke’s role, which the Applicant notes is a Level 4 role while Ms Murray’s role is a Level 2 role, is further evidence that Ms Balcke inappropriately favours Ms Murray over other staff. The Applicant tendered an email dated 3 November 2020 from Ms Balcke to staff, including the Applicant, confirming that Ms Balcke would be on leave from 17 – 23 November 2020 and that Ms Murray would be acting in Ms Balcke’s role. The Applicant said that this email was the first notification that she had of Ms Balcke’s leave and that in her experience and many years with the Respondent, the Applicant cannot recall a time when a Level 2 employee was utilised to act in the Level 4 ACDS position and that normally the position was backfilled with a Level 3 employee for reasons including clinical safety.

[36] Further matters referred to by the Applicant as evidence of the alleged conflict of interest, were Ms Balcke allowing Ms Murray to undertake tasks and be involved in activities such as interviewing and recruitment and writing documentation for Level 2 RNs, which were variously described by the Applicant as being outside Ms Murray’s scope of practice as a Level 2 Novice Co-ordinator and in the Applicant’s experience not “done nor considered educationally appropriate”. Ms Archer supported the Applicant’s evidence about the inappropriateness of Ms Murray (a Level 2) acting in Ms Balcke’s position (a Level 4 position) during Ms Balcke’s absences from work and the involvement of Ms Murray in writing the Level 2RN Perioperative Portfolio.

[37] Ms Cooper, Ms Archer and Ms Westnidge gave evidence in relation to their views about Ms Balcke and her management. Ms Cooper said that Ms Balcke had held her position for 4 – 5 years. According to Ms Cooper, in the last two years, after suffering a bereavement which Ms Cooper described as “tragic” Ms Balcke has not managed the Department as efficiently as in previous years and has become abrupt, unreliable and maintained a closed door policy. Ms Cooper said that this has had a deleterious effect on staff morale and the running of the Department. Ms Archer also described concerns that she shared with the Applicant about Ms Balcke’s behaviour including lack of interaction, belittling and inappropriate treatment and favouritism to Ms Murray. Ms Westnidge who gave evidence in her capacity as a Registered Nurse and the Workplace Representative in the Perioperative Department, reiterated the evidence of other witnesses about Ms Balcke’s behaviour including her closed door policy and non-responsiveness to emails. Ms Westnidge also confirmed that Ms Balcke spent time interacting with Ms Murray and that Ms Balcke’s conduct towards other staff was “rude and aggressive.”

[38] Matters came to a head on 22 January 2021, when Ms Balcke wrote to the Applicant in relation to competency concerns. The Applicant said that this was the first time in her nursing career where issues were raised with respect to her employment and that otherwise she received good performance reviews and feedback including during her period of employment with the Respondent. That letter [salutations omitted] was in the following terms:

“Re: Request to attend a meeting

It has been alleged that in your position of Perioperative Educator, you have not been undertaking the required competency checks with Theatre employees but instead have been ticking them off as competent without confirming that this is the case.

If this is true, this allows employees to undertake tasks that they may not be competent to do. The obvious risks to patients, doctors and staff are significant.

I need to meet with you urgently to discuss your approach to undertaking the competency checks,

I also need to check your understanding about the “Medical Student Orientation Handbook” and the “Medical Student Orientation Handbook - Operating Theatres” and your preparation and request for approval (see attached). You had documented that Kristina Backwell – Staff Development Manager, had seen and approved these policies. When these were tabled at the Policy and Document Control Committee (PDCC) meeting on Wednesday the 4^th November 2020, Kristina Backwell advised she had not seen these policies.

You are requested to attend a meeting on Thursday 28^th January 2020 (sic) at 11:30am in the Executive Office. I will have Michelle Mulcahy our HR Business Partner at this meeting with me. You are invited to bring a support person with you to this meeting if you would like to.”

[39] Appended to the letter were ten documents evidencing competency assessments undertaken by the Applicant in relation to an employee in a range of areas. In each case, the employee who was assessed has signed the form on 7 July 2020 and the Applicant has signed on 3 July 2020, as the assessor. 19

[40] In relation to this letter, the Applicant said that it was provided to her by Ms Balcke after a lengthy period of inappropriate treatment by Ms Balcke and well after the Applicant documented that treatment. At the time of receiving the letter, the Applicant said that she was distressed by this escalation and was concerned because Ms Balcke was treated as a member of the executive team which Ms Mulcahy supported. The Applicant said that she was also concerned because Ms Hartley (Director of Nursing) had asked who she was when the Applicant went to discuss a matter with Ms Hartley, despite Ms Hartley having been employed for two years and attending PDCC meetings with the Applicant. Further, Ms Balcke was acting in Ms Hartley’s role at the time she gave the Applicant the letter.

[41] The Applicant said she felt targeted as she was only one of four nurses who had completed competencies in that way and the other nurses had not been called to account in a letter. The Applicant also said that she was aware of the friendship between Ms Balcke and Ms Mulcahy and felt unsafe attending a meeting with them and that they had made a pre-determined decision about disciplining her. The Applicant was concerned about being disciplined because she had begun “pushing back” and raising concerns about patient or staff safety and particularly about the Novice Program and its poor delivery. The Applicant also said that Ms Balcke would not respond to her emails and would berate her by raising her voice and changing her tone. The Applicant referred to the meeting of 24 July documented in her file note and said that during that meeting Ms Balcke stated that she would “try to keep her temper under control” but raised her voice in any event.

[42] As a result of her concerns, the Applicant sent an email to the Hospital CEO Mr Stevenson, at 10.43 pm on Sunday, 24 January 2021. The subject line of the email was: “Requiring your URGENT review in regards to unsubstantiated claims made by the ADON – periop.” The email was lengthy, spanning some five A4 pages when printed. The email attached the correspondence received by the Applicant from Ms Balcke in relation to the meeting the Applicant had been requested to attend on 28 January 2021. In summary, the Applicant’s email stated:

•  As Ms Hartley is currently on leave and this letter is in regards to the conduct of Ms Balcke, who is acting in her position, the Applicant feels she has no other option than to direct her serious and substantiated concerns to Mr Stevenson regarding the inappropriateness of Ms Balcke’s letter and the meeting as well as other serious concerns the Applicant has regarding the management of the Perioperative Department;

•  The Applicant “vehemently” denies that in her role as the perioperative educator that she has passed staff members as competent without a formal or general assessment of their clinical skills and sets out estimations of the numbers and kinds of competency assessments she has provided during the previous months including the COVID-19 pandemic with references to anaesthetists who will support her assertions in this regard;

•  The Applicant set out her educational qualifications and experience in detail and stated that “in no means to cast judgement on Renae [Balcke]” the Applicant is “infinitely more qualified and experienced both academically and clinically than Renae [Balcke] and this is why I find it offensive and professionally unsubstantiated that Renae should question my clinical judgement and commitment to patient safety by straight up issuing me with a formal letter regarding an unsubstantiated accusation. In my opinion this only goes to demonstrate a lack of experience, judgement and leadership.”.

•  The Applicant then goes on to detail at length two occasions which she asserts demonstrate her commitment to the safety of our patients and staff, one of which the Applicant believes is “much more deserving of [Ms Balcke’s] fervent investigations than this petty accusation”. The first matter involves an incident where the Applicant intervened by expressing her concerns to doctors to prevent a woman “from a hotspot in Sydney” undergoing cosmetic surgery at the hospital. The Applicant sets out five questions she believes should have been posed to another employee who was involved in the matter including: “I would have to question whether it occurred to [name redacted] the unlikely nature that the chief medical officer would grant an exemption for a patient travelling from a hot spot to have COSMETIC SURGERY WHEN SHE WONT EVEN GRANT AN EXEMPTION FOR PARENTS TO CROSS THE BORDER TO BE WITH A CHILD WHO IS RECEIVING CHEMOTHERAPY.”

•  In terms of patient safety, the Applicant states that she was involved in the disciplining and eventual resignation of an Anaesthetist practicing at JFH who was “aggressive, inappropriate and very very dangerous” and names doctors she asserts will support this assertion and who thanked the Applicant for her involvement.

•  In relation to the reference in Ms Balcke’s letter to the medical student’s orientation manuals the Applicant states that she has email evidence “that clearly catches [Ms Balcke] in a complete and utter lie … and clearly only serves to cast serious doubt on the credibility of any other claims” and that Ms Balcke has tried to “pull the proverbial wool” over the Applicant’s eyes. The Applicant then poses a question to Mr Stevenson that: “You must ask yourself, if someone lies about one thing, what else are they lying about?”.

•  The Applicant also asserted that Ms Balcke’s conduct is most likely a concerted and premeditated attempt to undermine the Applicant and that Ms Balcke has slowly and persistently whittled away the responsibilities of the Applicant’s portfolio including by taking steps to remove the Applicant from the PDCC committee. In relation to this matter the Applicant states: “It seems to me incredulous that Renae [Balcke] would see fit to relieve me of this position. Adam, with a man of your experience would you say this is a rational decision or the decision of a manager that feels somewhat threatened by my knowledge, experience and the respect of my colleagues.”

•  The Applicant described “another incredulous decision”, that Ms Balcke should mandate that she not support the level 2 RN Novice Coordinator in delivering this program in her role as the level 3 RN Perioperative Educator. In relation to this matter the Applicant went on to assert that this “quite bizarre” decision was motivated by the relationship and overt favouritism displayed by Ms Balcke to the Novice Coordinator, evidenced by Ms Balcke appointing the level 2 RN Novice coordinator to act in her position twice when she has been on leave, far exceeding the scope of her role as a Novice Coordinator. The Applicant states that “this is NOT correct succession planning”. Favouritism is also said to be evidenced by the many hours Ms Balcke spends behind closed doors with the Novice Coordinator when the Applicant cannot get a response to an email. Further it is asserted that Ms Balcke has removed from the Applicant’s portfolio the management and overseeing of the New Graduates in the perioperative services which the Applicant has looked after since her employment and a question “what more will she take from me?” is posed.

[43] The Applicant’s email to Mr Stevenson concludes with the following:

“As you can appreciate Adam, I am putting myself very much out on a limb by writing to you. I do not do this lightly and understand the seriousness of what is contained in this letter, I am obviously concerned and apprehensive about the outcome but I can promise you this, I have a beautiful young family that relies on my wage for survival and I would not jeopardise this ever, particularly by making up lies and false accusations. I request only that you take this feedback with an open mind and take some time to investigate and contact the staff and doctors I have referred to in this letter. In fact, I encourage you to speak to anyone in the theatre complex, nurse, doctor, orderly regarding my role as the perioperative educator. I am 100% confident that you will receive very positive feedback and see that I am a genuine, honest, caring and committed nurse. I ask you to please intervene and put a stop to this nonsensical meeting which I will not be attending regardless. In fact, I will not attend any meeting with Renae without appropriate representation.

I appreciate you taking the time to read this letter and I look forward to hearing from you in regards to these matters. I am sure you will agree with me Adam when I say that bullying in the workplace, whether overt or covert, is unacceptable.”

[44] Shortly after sending that correspondence, at 10:49pm on 24 January 2021, the Applicant sent an email to Ms Balcke stating [salutations omitted]:

“I am writing to advise you that I will NOT be attending the meeting scheduled for 10am on the 28th January 2021. In fact I will not attend any meeting with you without proper representation from the nursing union or other legal representation.

I have forwarded a detailed letter of complaint to Adam Stevenson and I shall leave it in his capable hands to proceed as he sees fit.”

[45] At 3.54 pm on Wednesday, 27 January 2021, Mr Stevenson replied to the Applicant’s email of 24 January 2021 by email in the following terms:

“I have read the request to attend a meeting sent to you by Renae and I have seen your response to that request and have also read the detailed email you have sent me.

In your email you have provided numerous examples of your attention to patient/colleague/doctor care and welfare and I thank-you for that.

In relation to Renae’s question about conducting competency checks with theatre employees, you have advised that for novice staff, the comprehensive assessment is usually undertaken by a Level 2RN.

For experienced staff:

“In my professional and knowledgeable opinion, a formal assessment of these staff is not required. Having worked with these staff during surgical procedures and subsequent immediate post-operative recovery and having observed closely these staff in the clinical setting, I have been clearly able to establish very quickly and comprehensively whether that these staff are either competent or not in all the fundamental clinical skills required and overall was happy to sign these staff off on these competencies without performing a formal assessment on each individual clinical skill”.

It appears that this could be the area of concern that Renae was referring to and I have provided her with a copy of this response to review.

In relation to the question of whether Kristina Backwell had reviewed the document that was referred to or not, you have provided an email trail which confirms she had seen the document. Renae has advised you that when she showed the document to Kristina, Kristina said she had not seen it. You have accused Renae of being a liar which is totally inappropriate. The likely explanation is that Kristina had forgotten that she had seen the document.

These simple explanations could have been given to Renae at the meeting you were asked to attend and these matters addressed at that time. I was surprised with your response to this request which was:

[text of the Applicant’s email to Ms Balcke in relation to not attending the meeting]

Celia, your refusal to meet with Renae is not something you are at liberty to do without potentially serious repercussions. Renae was asking you to attend a meeting to discuss concerns she had become aware of which as a manager is her responsibility to do. You are obliged to comply with lawful and reasonable management requests as part of your employment contract – I notice you were invited to bring a support person with you if you wanted to do so and this could have been someone from the nursing union or other legal representation.

I will ask Renae to cancel the meeting request for the 28^th whilst she considers your responses. I will ask Renae to copy me in on any further correspondence.”

[46] At 9:03pm also on 27 January 2021, the Applicant sent an email in the following terms to Mr Stevenson resigning her employment:

“Thank you for responding to my email regarding competency assessment in the operating theatres. I stand by my assertion that assessing experienced nursing staff by observing them working within the clinical setting is a legitimate way to assess their clinical competency. We have assessed staff this way for many years and I have no doubt you would find that across the hospital any experienced nursing staff employed would have not had formal assessment of all their clinical skills before they are allocated to clinical practice. I have no double that you’ll find that Renae is aware of this too.

Should she have had any questions about this I suggest the most professional and reasonable thing to do would have spoken to me about this first instead of issuing me with a formal letter to attend a meeting in the executive offices with herself and the HR manager, especially since I would never intentionally put the safety of patients at risk and in fact have always had the courage to advocate for patient safety, even in the most difficult of circumstances as highlighted in my previous letter. In hindsight, perhaps I should not have refused to attend the meeting, however, I certainly had no confidence that it would be fair and unbiased as you will see from the points below.

In regards to the current nursing staff that required signing off as competent on clinical skills to complete the competency matrix the same principle applies as above, having worked closely with these staff over many years I can confidently say whether they are competent or not. Further to this I have the following questions:

•  Did [name redacted], the Clinical Educator, who signed off the majority of current intraoperative nurse in the same manner, receive a formal letter to attend a meeting in the executive offices with Renae and the HR manager

•  Did [name redacted], NUM of PACU, who signed off the majority of the PACU staff in the same manner receive a formal letter to attend a meeting in the executive offices with Renae and the HR manager

•  Did [name redacted] previous acting NUM of anaesthetics, who signed off the majority of the anaesthetic staff in the same manner receive a formal letter to attend a meeting in the executive offices with Renae and the HR manager

I expect not, which in itself speaks volumes. Adam, please know that I have the upmost respect for [names redacted] and in no way do I believe they have acted unprofessional as I haven’t but wanted to highlight to you just one example of the inconsistency and victimisation that I have received.

Adam, I can’t say I am not disappointed and wished you had taken time to speak to the nursing staff I mentioned in my previous letter in regards to my contribution to the preoperative services over the last eleven and half years and their thoughts of the Preoperative Services Manager, particularly the recently resigned NUMs of the operating theatres. I’m also disappointed that your email makes no mention in regards to the other issues I bought (sic) up in my previous letter. I’m sure you will agree that where there is smoke there is fire.

It is with deep regret that I find myself in a position that is no longer tenable and I can no longer work in such an unhappy and dis-functional environment, I tender my resignation from tomorrow 28^th January 2021 giving 2 weeks notice which leaves my last shift as 11^th February 2021.

Of course, no one is indispensable, Renae included, but with my wealth of experience, dedication to patient and staff safety, rapport with and support of the nurses, support staff, surgeons and anaesthetist, graduate nurses, students and all the other educators in the hospital, I am afraid that my resignation will only be a loss to the hospital. I shall not be surprised in the least if my replacement is the current Level 2RN Novice Coordinator.

I am more than happy to attend an exit interview with yourself at your convenience. If you wish, I can provide you with all of my file notes at that time. ”

[47] The Applicant explained her decision to resign her employment by stating that when she was asked to attend a meeting with Ms Balcke and Ms Mulcahy on 28 January 2021, she felt frustrated (in relation to her ongoing concerns) and despondent. The Applicant was also concerned that she would not be given a fair hearing if she attended a meeting with the person against whom she had raised a complaint, due to clear conflict of interest. Further, the Applicant said that she had relayed these concerns in great detail to Mr Stevenson in her 24 January email so that he would understand those concerns, particularly the Applicant’s concern about attending a meeting with Ms Balcke and Ms Mulcahy.

[48] In relation to Mr Stevenson’s response to her email of 24 January 2021, the Applicant said it was not reasonable that she attend a meeting with a person against whom the Applicant had made a complaint of bullying, and that despite her complaint specifically referring to bullying by Ms Balcke, Mr Stevenson referred the matter back to Ms Balcke. The Applicant also said that Mr Stevenson did not offer her any support nor refer her to the Respondent’s policy, being the Ramsay Health Care Discrimination, Bullying and Harassment Policy. The Applicant contended that if these factors had not existed, she would not have resigned. The Applicant tendered a copy of that policy which she had obtained after her resignation.

[49] The Applicant also set out in her witness statement Facebook posts making derogatory comments about Ms Balcke, expressing sorrow at the Applicant’s departure and support for the Applicant. Those posts include statements such as: “I salute your principle”; “Good luck and bring on the next journey where you are appreciated and acknowledged”; and “Hold your head high”. The Applicant gave further evidence about matters that led to her resignation including information she received from Ms Archer about a head of department meeting where Mr Stevenson stated that he had received feedback in regard to poor performance and treatment of heads/NUMs from the Nursing Executive and encouraged anyone with concerns about Ms Balcke and others to see him to discuss those concerns. The Applicant said that she and Ms Archer discussed that this may be the opportunity to bring forward their concerns regarding Ms Balcke and were keen to involve Ms Thorpe and request a meeting with Mr Stevenson. Two weeks later, Ms Archer told the Applicant that she had attended another heads of department meeting where Mr Stevenson stood in front of the group with Ms Balcke and others and stated that he stood 100% behind his Nursing Executive. This caused the Applicant and Ms Archer to believe that their concerns would not be listened to and they decided not to proceed further.

[50] Ms Archer gave evidence about the meetings called by Mr Stevenson which she attended in September 2020. At the first meeting Mr Stevenson encouraged staff to feel comfortable and safe to report concerns they may have about Ms Balcke, Ms Brocket or Ms Hartley. Ms Archer confirmed that she relayed this to the Applicant and that they discussed that this might be the opportunity to bring forward their issues with Ms Balcke. At a meeting two weeks later, Mr Stevenson stood in front of the group with Ms Balcke, Ms Brocket and Ms Hartley and stated that he stood 100% behind his nursing executive. Ms Archer confirmed that she also relayed this to the Applicant and they decided that it was a clear indication that their concerns would not be listened to and decided not to proceed further with raising those concerns with Mr Stevenson.

[51] Also in support of her contention that she was forced to resign her employment, the Applicant said that at the time of her resignation: she had been employed by the Respondent for over 11 years; was well respected within her role; was a single parent with two small children; and had no other role to go to. The Applicant further stated that she has never left a role without having another one to go to but was so impacted by the behaviour of Ms Balcke and the Respondent’s inaction, that she had no other option.

[52] On 8 February 2021, after the Applicant’s resignation took effect, she attended an exit interview in accordance with the request contained in her resignation letter. The Applicant said that she asked for the interview to be attended by Mr Stevenson and Ms Hartley rather than Ms Balcke and Ms Mackay. The Applicant also said that on the one hand she felt there was no point in attending and on the other hand she made the request for an exit meeting after a number of colleagues requested that she do so, so that, in their words, quoted by the Applicant: “something could be done about Ms Balcke’s treatment of various members of staff.”

[53] The Applicant tendered notes of the exit meeting signed by the Applicant and her father and dated 12 March 2021. The meeting notes indicate that the Applicant questioned Mr Stevenson about why he had not followed up on the matters raised in her 24 January email and took issue with Mr Stevenson’s response that a meeting had been conducted with some 50 staff from theatre on the previous day, stating that this meeting had not addressed her concerns but was about the novice program. The notes also indicate that the Applicant made numerous comments about Ms Balcke’s “aggression and bullying” and that she explained her method of competency assessment and that other senior members of staff who assessed competency in exactly the same way, had not received a letter from Ms Balcke. Further, the notes indicate that the Applicant raised issues with Ms Murray and alleged favouritism shown to Ms Murray by Ms Balcke and in relation to her removal from the PDCC. It is then stated in the notes that the Applicant read out each of the criteria in Ms Balcke’s position description (which the Applicant had with her at the meeting) and asked Mr Stevenson and Ms Hartley whether they believed that Ms Balcke met the criteria in that position description. The meeting notes state that neither Mr Stevenson nor Ms Hartley made any answer.

[54] The meeting notes also state that the Applicant informed Mr Stevenson and Ms Hartley that up to ten staff were seeking employment elsewhere and questioned why Mr Stevenson had not been concerned about several key nurses in the theatre department stepping down from their roles or resigning from the Hospital and asked what action would be taken and would she receive feedback. According to the notes, the meeting concluded when Mr O’Keefe stated that it was going around in circles and Ms Hartley stated that she and Mr Stevenson would talk about the Applicant’s feedback, assured the Applicant that she had been heard and wished her luck for her future endeavours.

[55] The Applicant stated that during the meeting Ms Hartley specifically denied that she was aware of the allegations of aggression and bullying on the part of Ms Balcke and Mr Stevenson was silent about this. The Applicant submitted that this was dishonest, based on Ms Archer’s evidence that at 6.43 am on 8 February 2021 (prior to the Applicant’s exit interview on that date), that she had sent an email to Mr Stevenson and Ms Hartley in relation to her resignation, dealing with the following matters:

•  “calling out” Ms Balcke’s behaviour towards Ms Archer and the team and providing examples Ms Balcke’s unavailability and non-responsiveness to emails;

•  Describing the level of pressure placed on Ms Archer by Ms Balcke leading to significant health impacts beyond Ms Archer’s resignation; and

•  Confirming the concern of Ms Archer and other staff members in relation to the Novice Program. 20

[56] Ms Archer also stated that after she sent this email, Ms Hartley attempted to contact her and then sent an email at 7.38 am on that date, acknowledging Ms Archer’s email and thanking her for reaching out. 21

[57] Mr O’Keefe supported the Applicant’s evidence in relation to the exit interview on 8 February, and said in his statement that he repeated a comment to Mr Stevenson and Ms Hartley during the meeting that they had already lost experienced staff and had now lost “one of the best”, referring to the Applicnt. Mr O’Keefe also recounted occasions when he had observed the Applicant to be distressed as a result of Ms Balcke’s treatment. Mr O’Keefe said that he had a discussion with the Applicant on the evening of 22 January 2021 in which the Applicant informed him that in her view Ms Balcke intended to discipline her in relation to the matters raised in the letter of that date and said: “How dare she question my professionalism and commitment to staff and patient safety.” Mr O’Keefe also said that the Applicant stated her view that Ms Balcke was attacking her and other staff until they resigned and that Ms Balcke would put her friend Angela [Murray] into the Applicant’s position. The Applicant composed her letter to Mr Stevenson of 24 January 2021 and read it aloud to Mr O’Keefe, who maintained that the Applicant was asking for help and for Mr Stevenson to investigate the matters she had raised.

[58] According to Mr O’Keefe, the Applicant informed him that Mr Stevenson had responded and suggested that refusing to attend the meeting with Ms Balcke was a breach of her employment contract, that she could not believe that her complaint had been referred back to Ms Balcke and no support was offered by Mr Stevenson. Mr O’Keefe also spoke to the Applicant before she resigned and said that the Applicant told him it was hopeless and that she had done all she could and the situation was escalating.

[59] In a supplementary witness statement, the Applicant said that she did not resign her employment due to receiving the letter from Ms Balcke dated 22 January 2021, and that her concerns about Ms Balcke’s behaviour led to stress and anxiety over 2020 and into 2021, which was reported to her doctor several times. In support of this assertion, the Applicant tendered a letter from her Doctor dated 27 April 2021, stating that:

“I have been asked to confirm that the above named patient has presented with mental health issues precipitated by her employment.

Ms O’Keefe describes perceived bullying and feelings of being unsupported in her workplace since 2020. This has led to significant psychological stress and anxiety symptoms.” 22

[60] The Applicant also disputed that she had obtained another job when she resigned and that she stated this to Ms Hartley. The Applicant said that soon after her resignation, she obtained a contract position for a six month period for which she is paid as a Level 1. This is substantially less than the hourly rate the Applicant was paid while working for the Respondent, requires her to travel a greater distance to work and is not within perioperative education, which is her area of expertise. The Applicant also said that her position with the Respondent was part time and she worked during the day, and that to earn the same amount she now works longer hours over an extended period, which does not suit her personal circumstances.

[61] Under cross-examination, the Applicant agreed that she considered Ms Balcke to be “professionally inferior” to her but rejected the proposition that she resented the fact that Ms Balcke sat above her in the Hospital hierarchy. The Applicant agreed that she was distressed and upset that Ms Balcke sent her the letter of 22 January 2021, and that it was her view that the matter could have been raised informally. The Applicant rejected the proposition that the reference to bullying at the conclusion of her email is ambiguous but accepted that this is the only part of the email referring to bullying. The Applicant also accepted that nowhere in the email does she state that she is making a bullying complaint against Ms Balke.

[62] The Applicant agreed that the point of her email to Mr Stevenson was that she wanted him to urgently review the claims against her in Ms Balcke’s letter and to speak to the 26 people she had nominated and decide that she was an impeccable employee. The Applicant accepted that in his response of 24 January 2021, Mr Stevenson stated that he would ask Ms Balcke to cancel the meeting, but said that she did not see this as a win. The Applicant rejected the proposition that Mr Stevenson’s response was measured. The Applicant also rejected the proposition that the statement in her resignation letter to the effect that in hindsight she should have gone to the meeting with Ms Balcke, was an acknowledgement that she had over-reacted. In response to the proposition that she was hoping that Mr Stevenson would come running after her and beg her to stay, the Applicant said that she was hoping for a response from Mr Stevenson.

[63] In relation to the change in the reporting structure in her contract of employment, the Applicant said that she had no reason to doubt Ms Balcke’s advice to her that the change was made by Ms Hartley. In response to the proposition that the file notes did not show that Ms Balcke was bullying her, the Applicant said that: “My perception of her treatment of me was bullying.” 23 In relation to the unanswered emails about which she complained, the Applicant agreed that she had identified ten such emails and that at the top of one email was an email from the Applicant to Ms Balcke stating: “thank you for your email”. In response to a question as to whether she had ever gone to Ms Balcke and asked her to look at a particular email, the Applicant said that Ms Balcke’s door was never open, her phone was diverted most of the time and the few occasions on which the Applicant had knocked on Ms Balcke’s door, Ms Balcke had rebuffed her. The Applicant conceded that her assertion that Ms Balcke removed her from the PDCC was incorrect but maintained that Ms Balcke should have supported her staying on that Committee.

[64] The Applicant agreed that notwithstanding her evidence that she had not been given assistance from the Respondent’s Human Resources Department, she had not sought such assistance but said that this was because she did not feel that she would be given assistance because of the conflict of interest based on the friendship between Ms Balcke and Ms Mulcahy. The Applicant also agreed that she had no evidence of Ms Mulcahy failing to deal with complaints against Ms Balcke but just assumed that Ms Mulcahy would act improperly.

[65] Further, the Applicant agreed that at the time she was asked to attend a meeting with Ms Balcke and Ms Mulcahy she had not raised any concerns about Ms Balcke with any manager of the Respondent. In response to a question as to whether she knew that there was a bullying policy in the Hospital, the Applicant said: “Absolutely, yes.” 24 The Applicant said that notwithstanding that she knew about the bullying policy she maintained that upon receipt of her email of 24 January 2021, Mr Stevenson should have referred her to the policy and offered her support or advice. The Applicant agreed that the first time she discussed bullying with her doctor was on or around 27 April 2021 when he wrote the letter she had tendered to the Commission. The Applicant also agreed that she had not said anything in her witness statements about having to attend a doctor because of the effects of bullying.

[66] In response to a question as to what she would expect would be required to facilitate her return to the Respondent’s employment, the Applicant said that she would expect mediation with Ms Balcke and that Ms Balcke would be spoken to and closely monitored with respect to her work practices. The Applicant also said that it is her understanding that since she resigned, there have been significant changes and meetings between Ms Hartley and Mr Stevenson to discuss issues relating to Ms Balcke. Further, the Applicant said that there had been positive moves such as Ms Balcke taking two months long service leave and being replaced by an ADCS from Pindara, who had made some significant changes.

[67] Ms Archer said that by February 2021, things had become so bad at work that she resigned from her employment as of 5 February 2021. Ms Archer sent an email to Mr Stevenson and Ms Hartley at 6.43 am on 8 February 2021 in relation to her resignation. In that email, Ms Archer states that: “Trying to navigate Renae [Ms Balcke] and her grief, while keeping the Department functioning and performing in my role has had a huge impact on me.” Ms Archer also goes into detail in relation to the impact that Ms Balcke’s behaviour has had on her mental health. The email contains information of a personal nature which it is not necessary to detail. It suffices to say that the email describes significant impacts. The email also contains the following statement: “Please look out for Renae. Her grief is understandably overwhelming. I cannot imagine what she is going through. I have expressed my concerns to Angela as they are close.” 25

[68] Ms Westnidge said that concerns about the Novice Program had existed since 2020, when a second group of Novices commenced before the first group had completed the Program. Ms Westnidge also said that concerns about the Novice Program were raised with Ms Balcke and Ms Murray. Mr Stevenson corresponded with staff and on 5 February 2021, held a meeting in relation to this matter. After correspondence from Mr Stevenson to staff, this matter has not been resolved.

[69] Further, Ms Westnidge said that approximately one week after the meeting on 5 February 2021 and after the resignations of the Applicant and Ms Archer, Ms Balcke “suddenly” took two months of long service leave and Ms Murray also took an extended period of leave. It was also announced that Ms Hartley would move to an alternative role and that recruitment for her position of Director of Clinical Services would commence shortly. In addition, an announcement was made that staff would have the opportunity to meet with either Mr Stevenson, Ms Hartley or Ms Hepworth (Queensland HR Manager) to discuss any concerns they may have in relation to the Novice Program and that the Respondent’s Employee Assistance Program providers would be on site for several weeks to assist staff. Ms Westnidge said that while she did not attend an interview, staff who did advised that the interviews were not limited to concerns about the Novice Program. On 19 March 2021, a further letter was sent to staff referring to prior interviews and offering to discuss a range of issues with staff including communication within the Perioperative Department.

[70] In relation to the PDCC, Ms Hartley said in her evidence that in August 2019, during the annual review of Terms of Reference and membership of that Committee, she requested that the Perioperative ADCS and the Health Information Manager be added to its membership. This was approved by the committee. According to Ms Hartley, during 2020, the format of the meeting had been changed so that documents would be circulated for feedback, approved by a senior manager and tabled for final ratification at the meeting. Ms Hartley said that at the 2020 review of Terms of Reference and membership, she put forward the suggestion that they did not require two perioperative representatives on the committee. Ms Hartley’s evidence was that the Perioperative ADCS needed to attend in order to have an overall awareness of documents coming through for approval and therefore, she felt the Educator need not attend the meeting. Ms Hartley stated that this was agreed to by the PDCC members and as a result, the Educator was not required to attend the meetings.

[71] Ms Hartley also stated that in mid to late 2020, a number of serious incidents occurred in the Perioperative Department, resulting in adverse outcomes for patients. Ms Balcke, supported this evidence, stating that in July, August, October and November of 2020, four similar incidents occurred which impacted on patient safety, and were due to human error. Investigations into the incidents found that not all employees had their competency assessments up to date. Ms Balcke said that as a result, in-service programs for staff involved in the procedure were carried out over the period from August to November 2020 and reinforcement of the policy in relation to equipment used was undertaken. Ms Balcke said that further investigation into the assessment of competencies within the department identified serious deficiencies, being that a number of staff members advised that although their records showed they had been assessed as being competent in a task, they had not actually been physically assessed.

[72] In this regard Ms Balcke said that a review of signed cover sheets showed in a number of cases that the date the Assessor signed the sheet and the date that the employee signed the sheet were different. She annexed examples of such documentation signed by the Applicant. 26 The documentation tendered by Ms Balcke comprised assessment records for HR purposes indicating that an employee had been assessed with respect to the performance of specified tasks. Each document states as follows:

•  During the assessment the assessor assigns a category corresponding to the performance level for each of the performance criteria;

•  If the performance falls into “NYC” [Not Yet Competent], comments must be included, comments are optional if category “C” [Competent] is demonstrated/achieved; and

•  The completed competency is to be recorded in the hospital training record.

[73] The assessment records also indicate that action is required of the assessor to give feedback to the nurse being assessed in relation to aspects of the performance which are satisfactory or below the criteria. On each of the assessment records tendered by Ms Balcke, the Applicant has completed details indicating that the nurse has been assessed as competent and has signed the form and dated it 3 July 2020. The nurse who was assessed has signed and the date beside the signature on each form is 7 July 2020.

[74] Ms Hartley’s evidence in relation to assessment was that when an employee has a competency assessed, the usual process is to have the assessor watch the employee undertake the task and then either determine whether the employee is competent or not and record this on the front cover sheet of the assessment document. According to Ms Hartley, it is usual for both parties to sign this page on the same day, however, this had not been occurring in all cases.

[75] Ms Balcke stated that as the Assistant Director of Clinical Services – Perioperative, it was her responsibility to be personally involved in this investigation, and once the details of the competencies were identified, it was her responsibility to speak with the Educator who was responsible for ensuring employee competencies were regularly assessed. Ms Balke said that she had also been intending to speak to the Applicant about the Medical Student Orientation Handbook and the Medical Student Orientation Handbook – Operating Theatres, and for this reason she included this subject in the meeting request. Ms Balcke sent the letter to the Applicant on 22 January 2021, asking the Applicant to meet with her to discuss these matters. Ms Balcke said that she had been advised by HR to clearly explain why she wanted to meet with the Applicant, so the Applicant would not be caught off guard and would have sufficient time to prepare. The HR Manager was also going to be present at the scheduled meeting, to ensure due process was followed. While it was not a performance management meeting, Ms Balcke gave the Applicant the option of bringing a support person if she wished. Ms Balcke said that the Applicant responded on 24 January 2021 stating that she would not meet with Ms Balcke and advising that she was sending an email to Mr Stevenson.

[76] Thereafter the Applicant and Mr Stevenson exchanged correspondence culminating in the Applicant’s resignation letter being sent to Mr Stevenson on 27 January 2021. Ms Balcke stated that on 28 January, she was advised by Mr Stevenson that the Applicant had resigned with the resignation taking effect that day. Ms Balcke said that it was felt that the Applicant having to work out the two weeks’ notice she had provided was likely to be disruptive and therefore, it was appropriate to pay out that notice period and allow her to leave. Ms Balcke said that she asked Ms Michelle Mulcahy from HR to be with her to deliver the news to the Applicant that she was not required to work out the notice period and could leave that day. Ms Balcke said that the Applicant stated that she was not surprised by this.

[77] Mr Stevenson said that the Applicant attended the exit interview on 8 February with her father as support person. Ms Hartley was also present at the exit interview and tendered her notes of that interview.  27 Ms Hartley’s notes reflect that the Applicant said she did not know why Mr Stevenson did not take the time to speak to the nursing staff mentioned in her email of 24 January 2021 and that the Applicant detailed her assertions that Ms Balcke was a poor manager. The notes also indicate that the Applicant stated that Ms Murray was working outside her scope. Further the notes indicate that the Applicant was unimpressed about receiving a letter from Ms Balcke about her management of staff competencies and did not understand why Ms Balcke did not just talk to her about this matter. The notes conclude by recording that the Applicant stated that the Respondent had lost a really good staff member (with reference to herself) and that the Applicant had only come to the exit interview because other staff had asked her to do so and that those staff supported her. Mr Stevenson’s notes also indicate that the Applicant said that it was ok for her because she had a job to go to, but that she was concerned about other senior staff leaving the Respondent.

[78] Under cross-examination, Ms Balcke said that she was not the Applicant’s direct manager and that the Applicant reported to Ms Balcke through the Perioperative Nursing Unit Manager. NUMs of other perioperative areas and some non-clinical managers also report to Ms Balcke. Ms Balcke also said that Ms Murray does not report directly to her. Ms Balcke agreed that she has friendships with Ms Mulcahy and Ms Murray outside of work but said that she was not aware of the views of Ms Cooper, Ms Westnidge, Ms Archer and the Applicant that this created a conflict of interest. Ms Balcke also said that she had personal relationships outside of work with some of the persons making the statement about conflict of interest. Ms Balcke disputed that she had been described as having a closed door policy and said that there were times when her door was open and times when it was closed, depending on the situation.

[79] In relation to the meeting with the Applicant on 24 July 2020, Ms Balcke said that there was a misunderstanding as to where the Applicant sat in terms of reporting and that Ms Balcke viewed that the Applicant was trying to ascertain information from her that the Applicant should have been seeking from her direct manager. In response to a question about who the Applicant reported to prior to Ms Balcke’s appointment, Ms Balcke said that she understood that the Applicant reported to the Staff Development Manager and not directly to the ADOC [then Ms Briggs].

[80] Ms Balcke said that she had a copy of the Applicant’s contract with her at the 24 July 2020 meeting as she had been made aware that there was some confusion about who the Applicant reported to. Ms Balcke was not aware as to whether the Staff Development role was a Level 4 role. Ms Balcke also said that the Level 3 that the Applicant was reporting through was a NUM, which is above a Level 3. Ms Balcke also referred to organisational change across the Respondent’s operations in relation to reporting lines and said that as far as she was concerned, when she commenced in 2017, the Applicant did not report directly to her. As a result, Ms Balcke’s view was that the Applicant should have been seeking information from the NUM to whom she directly reported and not Ms Balcke and this was clarified with the Applicant at the 24 July 2020 meeting.

[81] In response to the proposition that the Applicant designed and developed the Novice Program, Ms Balcke said that this was the Applicant’s view but the Ramsay Novice Program was used. Ms Balcke agreed that the Applicant had input into that program. Ms Balcke said that she was not aware of staff raising issues with the delivery of the Novice Program prior to the Applicant’s resignation, and the concerns Ms Balcke was aware of were related to the appropriate allocation of preceptors to the novices which was not part of the role of Novice Co-ordinator. Ms Balcke also said that the meeting on 24 July 2020 was about the Applicant’s role in ensuring that the education of ongoing staff was continuing while the Novice Co-ordinator was there to manage the novice rollout and liaising with NUMs in relation to allocating preceptors and getting study days organised.

[82] In response to the proposition that she told the Applicant that she was to have nothing to do with the Novice Program, Ms Balcke said that she was pointing out to the Applicant that her role was Perioperative Educator and that the Applicant had to oversee training and ongoing education for the staff in the Department and had enough to do in this regard. Ms Balcke was also cross-examined at length about a reference in her witness statement to four incidents impacting on patient safety in July, August, October and November 2020, where investigations identified that not all of the employees involved had been assessed as fully competent in relation to the procedure insofar as their competencies were not up to date. In response to the proposition that she had not provided “fulsome details” 28 of the incidents to the Applicant at the time of writing the 22 January letter, so that the Applicant could respond, Ms Balcke said that she was not asking the Applicant to respond to the four incidents. Rather, she was requesting the Applicant attend a meeting to discuss how she completed competency checks. Ms Balcke agreed that she did not provide a basis in the letter for the allegation about how the Applicant was completing competency checks.

[83] Ms Balcke also said that she was not aware of other nursing staff who carried out competency checks in the same way. Further, Ms Balcke said that there was no direct linkage between the four incidents referred to in her witness statement and the Applicant and the incidents caused her to generally examine how competencies were being assessed in the Department and to uncover the inconsistencies in the assessment records appended to her witness statement. Ms Balcke disagreed with the proposition that the letter was not clear in relation to the competency assessment allegation. Ms Balcke also said that the NUM to whom the Applicant reported did not attend the meeting because the NUM was on a period of leave and the role was being filled by two Level 2 employees and it was not appropriate that they attend.

[84] Mr Stevenson agreed under cross-examination that at the meeting he attended with heads of departments in late September 2020, feedback was given to him about poor performance and treatment of NUMs and heads of department by the nursing executive, including Ms Balcke and Ms Hartley. In relation to the evidence from Ms Archer about the statements he made at the first and second meeting, Mr Stevenson maintained that he said a lot more at the second meeting than simply that he stood behind the nursing executive. Mr Stevenson maintained that he also said that he trusted that the nursing executive would lead with a consistent approach that would apply whether staff came to see the CEO or any other manager and that this approach would align with the Respondent’s values.

[85] In relation to the proposition that his statement at the second meeting would have caused anxiety, Mr Stevenson said that he could not help how people perceived his words or what they chose to hear. Mr Stevenson also disagreed with the proposition that the first discussion with department heads was supportive and the second discussion was different. In response to a question from the Commission, Mr Stevenson said that the meetings in September 2020 were in relation to concerns raised around clinical management and the way that the Hospital had changed following changes in executive leadership in the previous twelve months.

[86] Mr Stevenson said that he did seek advice from the Respondent’s Human Resources Department in relation to his response to the Applicant’s email of 24 January 2021. Mr Stevenson said that this discussion was focused on responding to the matters at hand, which were the matters that subject of Ms Balcke’s letter to the Applicant on 22 January. Mr Stevenson agreed that the Applicant’ email raised matters other than the meeting request made by Ms Balcke and said that it was decided that there was no need to respond to those concerns at the time. Mr Stevenson also agreed that he did not write to the Applicant acknowledging the additional concerns she had raised or informing her that they would be looked into. Further, Mr Stevenson said that he did not consider that the concerns raised by the Applicant were “great enough to enact the [Respondent’s Discrimination, Bullying, and Harassment] policy”. 29 Mr Stevenson also said that in his view the Applicant was raising the issues relating to Ms Balcke because her performance was being questioned, and that the Applicant was “trying everything that she could to get out of a performance management meeting”.30 Mr Stevenson rejected the proposition that his conduct was contrary to the Respondent’s Discrimination, Bullying, and Harassment Policy and said that in his view his response to the Applicant’s email was appropriate. Mr Stevenson accepted that he did not ask the Applicant if she would like to go further with the matters raised in her email, notwithstanding that she was asking for his help.

[87] Mr Stevenson also said that in his view the Applicant’s response to a simple request to attend a meeting with Ms Balcke to manage or question her performance, was “interesting”. Mr Stevenson formed this view on the basis that the matters in the Applicant’s email had never been raised with him, or anyone else, until the Applicant was asked to go to that meeting. 31 Mr Stevenson said that he did not investigate the matters raised in the Applicant’s email, because he did not understand what the Applicant wanted him to investigate. Mr Stevenson also agreed that he formed a view that the Applicant had an ulterior motive for raising those issues. Mr Stevenson said that he was surprised to receive the Applicant’s resignation given that he had responded to her email by delaying or cancelling the meeting with Ms Balcke but did not think to query the Applicant’s resignation.

[88] Mr Stevenson accepted that at the exit meeting, he did not respond to questions about whether he knew of claims made about Ms Balcke’s conduct by Ms Archer, in circumstances where there was an email in his inbox before the exit meeting setting out those claims. Mr Stevenson first said that he could not recall whether he read Ms Archer’s email before the exit interview with the Applicant and later said that he had not read that email at the time.

[89] Mr Stevenson agreed that within a few weeks of the Applicant’s resignation, Ms Balcke took two months leave and that Ms Murray had also taken leave and then moved out of the Novice Co-ordinator role. Mr Stevenson said that meetings held after the Applicant’s employment ceased were in relation to the Novice Program and were not related to the matters raised by the Applicant’s resignation. Ms Hepworth was brought in and the Employee Assistance Program made available, in response to a clinical incident which occurred, rather than because of issues associated with the Applicant’s resignation. Mr Stevenson disputed that upon Ms Balcke’s return staff had stated that they did not wish to work under her, but said that there had been discussions about the concerns of staff that improvements that had been made during Ms Balcke’s absence would not be continued.

[90] Under cross-examination, Ms Hartley said that there was a change to organisational structure across Ramsay Health Care generally, in or around 2018 or 2019, whereby speciality educators, such as the Applicant, were to report through NUMs in their area of speciality. Ms Hartley discussed with Ms Balcke a need to change the Respondent’s organisation chart to be consistent with this structure. Ms Hartley agreed that this change would have affected the Applicant and that it was a matter about which there should have been consultation. In relation to moving the Applicant off the PDCC, Ms Hartley said that it is a high level committee and in her view the Applicant’s time was better spent in undertaking hands on education rather than sitting on the PDCC. Ms Hartley also said that the Applicant had reporting lines to two people on the Committee – Ms Balcke and Ms Blackwell, the Staff Development Manager at the time. Ms Hartley agreed that it would be important for Ms Balcke or Ms Blackwell to provide information to the Applicant to enable her to undertake drafting tasks that she was still performing.

[91] Ms Hartley was also cross-examined about Ms Archer’s resignation letter of 8 February and accepted that she received that email before the exit interview with the Applicant, also on 8 February 2021. Ms Hartley agreed that the email raised concerns about Ms Archer’s perception of her treatment by Ms Balcke. Ms Hartley did not accept the proposition that her statement at the exit meeting to the effect that she was not aware of bullying claims made by Ms Archer was not truthful. Ms Hartley said that she gets 150 – 200 emails per day, it was early morning and she read the email in about one minute. Ms Hartley also said that she viewed the contents of Ms Archer’s email as being confidential.

Submissions

[92] The Applicant submits that the behaviour of Ms Balcke outlined in the evidence of the Applicant and witnesses on her behalf, if investigated by the Respondent, could have been substantiated as bullying. The Applicant became increasing frustrated and distressed over the period of 2020 and early 2021, due to Ms Balcke’s conduct and treatment of the Applicant. The Applicant also contended that there was a change to her employment contract which would constitute a breach of the term which has her formally reporting to “the Level 4RH Staff Development Officer”. This treatment impacted upon the Applicant's health and wellbeing and resulted in the Applicant speaking to her General Practitioner about her concerns on multiple occasions in the second half of 2020 and in January 2021.

[93] On 22 January 2021 the Applicant received a letter from Ms Balcke setting out two concerns and requested the Applicant to attend a meeting. According to the Applicant, the concerns were not substantiated. The Applicant also contends that her resignation was not an overreaction to this letter and was proportional with:

1. The letter coming from the person who had allegedly bullied her over a period of time;

2. The Applicant having more than 21 years’ service as a nurse with no prior competency concerns; and

3. Confirmation from the two other Nursing Unit Managers and a Clinical Educator who also competed these tasks in the same manner, that they did not receive such a letter.

[94] On 24 January 2021, the Applicant wrote to Mr Stevenson to raise her concerns in some detail and also addressed the competency concerns which she saw as a part of the escalation of her concerns regarding Ms Balcke’s treatment of her. Importantly, the Applicant asked Mr Stevenson to “investigate” her concerns regarding Ms Balcke. In Mr Stevenson’s response on 27 January 2021:

1.There is no acknowledgement of the Applicants' concerns;

2.No commitment to investigating her claims against Ms Balcke; and

3.The matter is referred back to Ms Balcke (the alleged bully).

[95] The Applicant submits that Mr Stevenson's approach is in breach of the Respondent's Discrimination, Bullying and Harassment Policy because of the following action/inaction of the Respondent by not providing for a culture of reporting which was exacerbated by the conflict of interest which existed, whereby the Applicant could not freely approach Human Resources to raise concerns regarding her Manager. Further, the Policy was breached regardless of the existence of written concerns of alleged bullying by Ms Balcke against the Applicant, because Mr Stevenson:

1. Did not acknowledge the concerns;

2. Did not provide the Applicant with support regarding her complaint;

3. Did not provide the Applicant with a copy of the Bullying Policy; and

4. Did not investigate promptly;

5. Gave no indication to the Applicant that the Respondent would investigate the concerns.

[96] On 28 January 2021, based on Mr Stevenson's response, (as the CEO and highest point of escalation within the business), the Applicant resigned from the Role citing in her resignation letter the reasons for her resignation. The Applicant submits that the language used in her resignation email confirms that the resignation was not voluntary and was based on the position being untenable and the Applicant no longer being able to work in such an unhappy and dysfunctional environment. The Applicant also points to the fact that at the exit interview on 8 February 2021, Ms Hartley lied about not knowing of the concerns with Ms Balcke and the Department. The Applicant submitted that her resignation was forced and that she had no real option other than to resign, so that the termination was at the initiative of the Respondent and was in fact a dismissal.

[97] The Applicant acknowledged that the onus is on her to prove that she did not resign voluntarily 32 however it “does not impose a burden of proof ... to establish that there was absolutely no alternative to the resignation”.33 The Applicant submitted that she did not resign voluntarily, based on the following:

a. The Applicant reasonably believed that she could not go to Ms Mulcahy with her concerns without the fear of that being communicated back to Ms Balcke and that due to the conflict of interest the Applicant had no confidence that Ms Mulcahy would provide her with any due process/fairness.

b. The Applicant communicated with Mr Stevenson on 24 January 2021 stating that: “I am sure you will agree with me Adam when I say that bullying in the workplace, whether overt or covert is unacceptable”.

c. Although the Applicant states that she “went out on a limb” by referring the matter to Mr Stevenson, his actions, as per the 27 January 2021 letter were to:

i. not be receptive to or acknowledge her bullying concerns; and

ii. refer the matter back to Ms Balcke (the alleged bully).

d. As such, the Respondent took “some action” 34 (which included inaction) that had the “probable result” of bringing the employment relationship to an end.35

e. Further, the Applicant could reasonably deduce from events to date, that the treatment of her, which was impacting severely upon her health and wellbeing, would continue and that there was no effective or real choice but to resign. This lack of acknowledgement of her concerns by the CEO reasonably explains why the Applicant resigned on 28 January 2021 (that is within such a short time after her letter of 24 January 2021).

[98] In summary, the Applicant submits that but for the conduct of Ms Balcke and the subsequent conduct, which includes a failure to act by Mr Stevenson, the Applicant would not have resigned. In oral submissions the Applicant emphasised that she is not required to prove that she was bullied. Rather, the Applicant is required to establish that she resigned due to the treatment that she received and the failure to acknowledge her concerns. It is contended that the Applicant’s evidence was clear, concise and consistent, establishing on the balance of probabilities that she was forced to resign because of a course of conduct engaged in by the Respondent’s delegates being Ms Balcke, Mr Stevenson and Ms Hartley.

[99] It was also submitted by the Applicant that notwithstanding Ms Balcke’s evidence about the change to reporting lines between Ms Balcke and the Applicant, for practical purposes the custom and practice did not change, with the Applicant still being required to seek approval from Ms Balcke before submitting documents to the PDCC and the provision of mandatory education reports to Ms Balcke.

[100] Reference was also made to Ms Balcke’s evidence that on receiving the Applicant’s 24 January email, she was too busy to read it and that this was not credible. It was also submitted that the Respondent failed to comply with its own Bullying Policy given that the Applicant’s email to Mr Stevenson detailed significant concerns including nepotism, favouritism and perceived bullying and that Ramsay Health HR staff were involved in his response. Mr Stevenson’s response was to form a view that the Applicant’s serious concerns were not worthy of investigation. Further, it was submitted that Mr Stevenson failed to respond promptly to the Applicant’s email and that this failure was also conduct by virtue of being an omission.

[101] In response to the submission that the Applicant did not raise her issues with Ms Balcke until 24 January 2021, the Applicant referred to the decision in Watts 36 where the Commission observed that employees subject to unreasonable behaviour may be willing to ignore it and as time passes, this may change and that in such cases employees should not be criticised for not raising earlier instances at the time they occurred. It was also asserted that the Applicant’s evidence in her witness statement that she sought assistance from her doctor in relation to the bullying she was experiencing prior to her resignation, should be accepted as correct. In the context of these matters, it was submitted that the Applicant viewed the email of 22 January from Ms Balcke as bullying, sent an email indicating her extreme distress about this and other matters to Mr Stevenson and received a response which she viewed as threatening and inappropriate.

[102] The Respondent submits that the Applicant’s resignation came at the end of a sequence of events that unfolded over a period of just five days, during which Ms Balcke wrote to the Applicant on 22 January 2021 and the Applicant sent a resignation letter to the Respondent on 27 January. The Respondent submitted that it was proper of Ms Balcke to write to the Applicant seeking a meeting to address two concerns, as once Ms Balcke had become aware of possible non-compliance in respect of competency assessments, it was her duty to address the matter with the Applicant. The meeting of 28 January 2021 also provided the opportunity for Ms Balcke to discuss with the Applicant the issue of the Medical Student Orientation Manual, which it submitted Ms Balcke had been planning to do. 37

[103] The Respondent noted that the Applicant waited two days before responding, “in brief terms”, to Ms Balcke, on a Sunday night, refusing the meeting. It submitted however the Applicant’s email to Mr Stevenson was, in contrast, a “sprawling work written by an employee who was utterly incensed at being asked by a manager to attend a meeting to address some concerns”. The Respondent submitted that correspondence to Mr Stevenson was a defence by the Applicant of her professional capabilities and commitment to her work and also demonstrated her resentment at being asked to attend a meeting by Ms Balcke, a manager the Applicant considered “professionally inferior to her”: 38

[104] The correspondence contained an ambiguous reference to “bullying in the workplace,” which the Respondent presumed was directed at Ms Balcke. The Applicant requested in that correspondence to Mr Stevenson that he take her “feedback” and investigate the matter by contacting the past and present colleagues referred to in her correspondence.

[105] The Respondent submitted that Mr Stevenson’s response three days later was “measured and gracious”. In his email, Mr Stevenson noted he had read the ‘detailed email’ the Applicant had sent him along with Ms Balcke’s letter to the Applicant. Mr Stevenson thanked the Applicant for the examples she had provided of her attention to patient, colleague, and doctor care and welfare. He referred to the Applicant’s responses to the matters raised in Ms Balcke’s letter and noted those explanations could have been given at the meeting with Ms Balcke. Mr Stevenson continued by saying he was surprised by the Applicant’s response to the meeting request.

[106] The Respondent submitted that Mr Stevenson would have been entitled to respond by directing the Applicant to attend the meeting with Ms Balcke or face dismissal for serious misconduct for refusing to follow a lawful and reasonable instruction; however, instead Mr Stevenson sought to calm matters by asking Ms Balcke to cancel the meeting while she considered the Applicant’s responses to the matters raised in Ms Balcke’s letter. Mr Stevenson’s response offered the Applicant the opportunity to step back from the untenable position she had adopted in response to Ms Balcke’s letter; noting, Mr Stevenson had delivered what the Applicant had asked for in having the meeting cancelled.

[107] The Respondent also submitted that rather than responding in kind and assisting to deescalate the situation, the Applicant decided to resign from her employment. The Respondent contended that the Applicant’s resignation was not the intended or probable result of the Respondent’s actions. In asking the Applicant to attend a meeting to discuss some concerns, the Respondent could not have anticipated that the Applicant would respond in the unreasonable manner she did. There was nothing remarkable in the Applicant being asked to attend the meeting, and therefore the Applicant’s resignation was not a predictable or proportionate response in the circumstances. Further, the Applicant cannot rely on there being no effective or real choice but for her to resign. The Applicant conducted herself unreasonably, declined to follow the rules applying to the employment relationship by refusing a meeting with a manager and, even after the meeting was cancelled, acted unreasonably by resigning. The Respondent submitted that the Applicant’s resignation was an outcome entirely of her own making.

[108] For the above reasons, the Respondent submitted that the Applicant was not forced to resign because of conduct, or a course of conduct, engaged in by the Respondent, therefore the Applicant was not dismissed within the meaning in s.386(1) of the Act and the application should be dismissed.

Consideration

[109] I commence consideration with the event that precipitated the Applicant’s resignation – the letter sent to her on 22 January 2021 by Ms Balcke. Viewed objectively, there is nothing unreasonable about Ms Balcke raising those issues with the Applicant in a letter and it is not to the point that the issues could also have been raised verbally. There is also nothing unreasonable about the contents of the letter. Firstly, the issues raised in Ms Balcke’s letter, particularly with respect to competency assessment, are substantive issues which viewed on an objective basis, warrant being raised in writing. In this regard, Ms Balcke tendered ten examples of competency assessment records which had been signed by the Applicant to indicate that a particular employee had been assessed as competent to undertake a particular task, some three days before the employee being assessed had signed the form. Objectively, this is an arguably irregular method of conducting competency assessments and raises questions as to when the form was completed and who completed the form.

[110] While the Applicant may have had a reasonable explanation for this apparent irregularity in the manner she conducted competency assessments, it is not a trivial matter and Ms Balcke was justified in raising it. The competency recording form makes clear that the assessment is to be undertaken while the nurse is performing the particular task so that feedback can be given if necessary. If the Applicant’s explanation was that other staff undertook assessments in the same way and that the assessment was undertaken in the context where she knew that the particular nurse was competent by virtue of observation on previous occasions, then that explanation could have been provided at the meeting requested by Ms Balcke. It was not reasonable for the Applicant to form a view that because other employees had not received a letter inviting them to attend a meeting to discuss allegations of this kind, that the Applicant could refuse to attend the meeting.

[111] Secondly, there is nothing unclear about the way the allegations set out in Ms Balcke’s letter were framed. The reference to four incidents impacting on patient safety in Ms Balcke’s witness statement in these proceedings, did nothing more than provide evidence about the context in which the issue relating to the manner in which the Applicant was assessing competencies, was raised. Contrary to the Applicant’s submissions, the reference to those incidents in Ms Balcke’s witness statement did not infer that the Applicant was responsible for the incidents. There is no reference to the four incidents in the letter of 22 January 2021 and no indication of an allegation that the Applicant was involved in those incidents. Instead, the letter informed the Applicant that Ms Balcke wanted to talk to the Applicant about an allegation that she had been “ticking off” Theatre employees to indicate that they were competent without actually conducting an assessment. If there was any doubt about the matter, Ms Balcke emphatically denied in her evidence, that the meeting she requested that the Applicant attend had anything to do with the four incidents or that there was a suggestion that the Applicant was responsible for them.

[112] The second issue related to the Orientation Handbooks was clearly articulated in Ms Balcke’s letter to the Applicant of 22 January and although the Applicant had an explanation for this matter, it was not unreasonable for Ms Balcke to have raised the issue in a letter rather than verbally. It would have been equally open for the Applicant to have complained about lack of particularity if the issues were raised verbally and she was requested to discuss them without any information being provided to her in writing. Furthermore, if the Applicant could correspond with Mr Stevenson and Ms Balcke in the manner that she did, in response to the letter of 22 January, there is no reason why the Applicant could not have requested further detail from Ms Balcke about the matters to be discussed at the meeting, if she was in any doubt in this regard.

[113] Thirdly, there was no denial of procedural fairness. The purpose of the meeting was to discuss the allegations. That Ms Balcke said in her witness statement in these proceedings that she had been advised about the contents of the 22 January letter by HR and that the meeting was to discuss concerns about the matters set out, is not a basis for asserting denial of procedural fairness. In short, the meeting was the mechanism by which procedural fairness was to be afforded.

[114] Fourthly, the letter invites the Applicant to bring a support person to the meeting. The attempt to argue that the Applicant was refusing to attend the meeting without a representative, rather than simply refusing to attend, was unconvincing. To the contrary, the Applicant emphatically informed Ms Balcke in her written response on 24 January that she would “NOT” be attending the meeting and did not indicate that she would attend when she could arrange a representative or that the Applicant was having any difficulty in this regard. Rather, the reference to the Applicant wishing to have a representative was to emphasise her distrust of Ms Ms Balcke. The Applicant’s indication that she had made a complaint about Ms Balcke to Mr Stevenson and was awaiting the outcome of that complaint is a further indication that she had no present intention of attending a meeting with Ms Balcke. Further, the Applicant emphasised her position by capitalising the word “NOT” – generally understood as shouting. In short, the Applicant’s response to the request to attend a meeting with Ms Balcke was a refusal.

[115] Fifthly, the fact that Ms Balcke expressed an intention to have a HR representative at the meeting is unremarkable. Ms Balcke provided a reasonable explanation for not having the NUM at the meeting, on the basis that two Level 2 employees were acting in that role at the time because the NUM was leave. Given the Applicant’s views about answering to persons she did not consider to be her professional equals – a matter to which I will return – it is unlikely that the Applicant would have accepted either of the acting NUMs attending the meeting given their classification level was below that of the Applicant.

[116] Viewed objectively, the Applicant’s response to Ms Balcke’s reasonable request that she attend a meeting to discuss valid and legitimate issues, was unreasonable. Rather than simply attending the meeting and providing her explanations, the Applicant sent an email to the CEO of the Hospital, comprising some five pages of vitriol (excluding embedded content from other emails which took the total length of the email to eight pages) directed to her colleagues and manager. While the Applicant’s responses to the matters raised in the 22 January email are contained in the Applicant’s email to Mr Stevenson, they are buried in other non-responsive statements that are rude, inflammatory and disrespectful. Further, the Applicant’s response to Ms Balcke in which she refused to attend the meeting was equally rude and disrespectful. The Applicant had every right to have a representative at the meeting and had been informed of this by Ms Balcke in the 22 January letter, and her statement that she would not be attending without a representative was unnecessary and added to the general tone of that response.

[117] However, the Applicant submits that it is also necessary to consider whether her response to the 22 January 2021 letter from Ms Balcke was reasonable in the context of her allegations about the way that she had been treated by Ms Balcke from 2020. Two observations can be made about this assertion. Firstly, the context in which the Applicant responded to Ms Balcke’s letter, includes the Applicant’s conduct as well as the conduct of Ms Balcke. Secondly, the Applicant’s evidence about her alleged treatment by Ms Balcke is based almost entirely on her perceptions about that treatment. That this is so, was conceded by the Applicant while giving her evidence. That the Applicant’s views are subjective and based on her perceptions is also evident from the fact that the Applicant recorded her views in file notes purporting to be records of meetings and other interactions with Ms Balcke, in circumstances where the file notes contain references to views that the Applicant did not verbalise during the meetings or interactions. The Applicant’s file notes are not objective evidence of her allegations notwithstanding that they may have been made contemporaneously.

[118] Notwithstanding this, I accept that considered objectively, the evidence of the Applicant and witnesses who gave evidence in her case, establishes on the balance of probabilities, that there were issues with Ms Balcke’s behaviour which contributed to the Applicant having a reasonable basis to have concerns about attending the meeting requested by Ms Balcke in the 22 January correspondence. In this regard, I accept that Ms Balcke was unavailable and spent time in her office with the door closed. It appears from the evidence of the Applicant’s witnesses that this conduct commenced at or around the time that Ms Balcke suffered a bereavement. Ms Archer and Ms Cooper, who gave evidence on behalf of the Applicant, acknowledged the impact that this had on Ms Balcke. In her resignation letter Ms Archer said that that Ms Balcke must have suffered overwhelming grief as a result of the bereavement and Ms Cooper indicated that the conduct of Ms Balcke in having a closed door policy commenced at the time of her bereavement. I note that both Ms Archer and Ms Cooper demonstrated empathy for Ms Balcke and acknowledged the impact of Ms Balcke’s bereavement on her conduct, despite alleging that they had been adversely impacted by that conduct. In contrast, the Applicant did not express any sympathy for Ms Balcke.

[119] I also accept that there was a reasonable basis for the Applicant and staff at the Hospital to perceive a conflict of interest involving Ms Balcke, Ms Murray and Ms Mulcahy, because of their family and/or personal relationships. Perceptions in the workplace about such matters are important and can have a detrimental effect on employee morale and workplace culture and it is probable that this was the case prior to the Applicant’s resignation. It does not appear that the Respondent took any steps to recognise or acknowledge the possibility of such an issue, much less to manage it. The Respondent should have managed this issue.

[120] I do not accept that the other matters raised by the Applicant in relation to Ms Balcke’s conduct provide a reasonable explanation for the Applicant’s response to Ms Balcke’s letter of 22 January 2021 and for her refusal to attend the meeting. In my view there is a reasonable explanation for each of the matters raised by the Applicant that is on balance, more probable than the explanation posited by the Applicant. Further, I am of the view that the Applicant’s antipathy to Ms Balcke has coloured her perception to the point where she has drawn conclusions about matters which are not reasonable. These matters were set out in a table tendered by the Applicant’s representative in closing submissions and it is convenient to deal with them in the order they appear in that table. The first such matter is the assertion made by the Applicant in relation to changes to the reporting lines in her contract of employment which are said to constitute a breach of that contract. This assertion is not sustainable. Contrary to the Applicant’s submission that the Applicant’s employment contract “has her formally reporting to ‘the Level 4RH Staff Development Officer’” there is no such term in the Applicant’s contract of employment.

[121] During the course of the hearing, I put the proposition to the Applicant’s representative that the contract does not refer to the Staff Development Officer role as a Level 4, but simply states that the Perioperative Educator reports to the Staff Development Officer and invited the Applicant’s representative to point to the relevant contractual term to support this submission. The representative did not do so. I am also of the view that the Applicant’s contract of employment did not establish a right to report to a person classified at a particular Level. The fact that person in the role that the Applicant previously reported to was classified as a Level 4 does not mean that the Applicant has a right to report to a person classified at Level 4.

[122] I accept Ms Balcke’s evidence that there was a change in reporting structures across Ramsay Healthcare generally. While consultation about this matter may have been inadequate, the change was not something implemented by Ms Balcke and it was not directed at the Applicant. The Applicant’s strongly held view that she should not report to a peer or to a person classified at a Level below her, also make it more probable than not that Ms Balcke was having difficulty with communicating the structure to the Applicant. In this context, it is more probable than not that the meeting on 24 July 2020 was to clarify the reporting structure and it was reasonable that Ms Balcke had a copy of the Applicant’s employment contract to hand. This reporting structure at least partly explains Ms Balcke’s failure to respond to the Applicant’s emails on the basis that Ms Balcke believed that the Applicant should have been directing her queries to the NUM to whom the Applicant reported. However, it would have been desirable for Ms Balcke to have responded to at least some of the Applicant’s emails by informing her that she had referred them to the appropriate person.

[123] In relation to the Applicant being told that she did not have a role in the Novice Program, I accept Ms Balcke’s explanation in relation to the context in which this occurred. The Applicant was responsible for the ongoing training and education of existing staff and Ms Murray as the Novice Co-ordinator, was responsible for scheduling training for novices. In this context, there is nothing inappropriate about Ms Murray also being responsible for scheduling training for graduates, given it is unlikely that they would have more theatre experience than novices. As Ms Balcke stated, the Applicant had enough to do in her own domain.

[124] Further, Ms Balcke disputed that the Applicant had developed the Novice Program prior to the appointment of Ms Murray and said that the program was a Ramsay Healthcare program to which the Applicant had input, and which was simply implemented. I see no reason why the tasks described by Ms Balcke as being performed by the Novice Co-ordinator, such as scheduling of training, could not be undertaken by an employee at a Level below that of the Applicant. Indeed there is no reason why such a task could not be undertaken by an administrative employee or an employee a the same level as the Novices. I also observe that the Generic Level statement for a Level 2 classification in the Respondent’s enterprise agreement, includes planning and development of ward/unit education programs and other staff development activities.

[125] The Applicant’s comments about Ms Murray acting in Ms Balcke’s role while Ms Balcke was on leave are gratuitous. The appointment of a person to act in a role is a matter for the management of the Hospital and not the Applicant. This matter cannot reasonably be seen as action taken against the Applicant by Ms Balcke. This is particularly so when the Applicant’s evidence is that she did not seek to be appointed to act in Ms Balcke’s role while Ms Balcke was on leave. Even if it is “unusual” for a Level 2 employee to be appointed to act in a Level 4 role, this was not “unreasonable management action taken in an unreasonable way” as submitted by the Applicant, particularly given that it was not directed at the Applicant who, on her own evidence, did not seek to act in Ms Balcke’s role.

[126] Similarly, the complaint in the Applicant’s submissions that she was not notified first that Ms Balcke was going on leave and that her role would be filled by Ms Murray during that period, is unreasonable. On the Applicant’s own evidence, she was informed by email on 3 November 2020, that Ms Balcke would be taking leave between 17 and 23 November and that Ms Murray would be acting in her role at that time. Ms Balcke did not require the Applicant’s permission to implement this arrangement and in my view the notice to the Applicant (if such notice was required) was reasonable. Further, other than the Applicant’s chagrin about the fact that Level 2 employee was acting in a Level 4 role, there is no evidence of any impact upon the Applicant resulting from this arrangement.

[127] Other issues raised by the Applicant in her submissions are: Ms Balcke appointing Ms Murray to attend daily meetings and distribute that information and educate the Perioperative Department; Ms Murray being on the interview panel for new staff for the Department; and Ms Balcke allowing Ms Murray to develop Level 2 RN Perioperative Portfolio in circumstances where Ms Murray is also a Level 2. These are all matters which appear to be within Ms Balcke’s purview and the decision as to who undertakes them was a matter for Ms Balcke. The Applicant does not assert a desire to undertake these tasks herself or that she was denied some opportunity to do so. It appears that the Applicant’s major grievance is that Ms Murray is classified at Level 2. As previously noted, these activities appear to be within the parameters of the Generic Level Statement for a Level 2 in the Respondent’s enterprise agreement. It is also probable that Ms Balcke or some other qualified person could have reviewed Ms Murray’s work. On balance, these matters are not unreasonable management action on the part of Ms Balcke.

[128] In relation to the Applicant’s removal from the PDCC, the Applicant conceded that this decision was not made by Ms Balcke. However, the Applicant maintained that Ms Balcke should have objected to the Applicant’s removal from the Committee or supported her remaining as a member. In my view, Ms Balcke and Ms Hartley provided a reasonable explanation for the rationale in removing the Applicant from the Committee and on balance I do not accept that there was anything unreasonable about the removal or Ms Balcke acquiescing in it.

[129] Against these matters, I now turn to consider the Applicant’s response to the 22 January letter from Ms Balcke requesting her attendance at a meeting. On any objective view, the Applicant’s email to the CEO of the Respondent, sent at 10.43 pm on 24 January 2021, was an over-reaction. The tone of the email was that the Applicant was defending her reputation as a professional and competent registered nurse and nurse educator from an unwarranted attack by Ms Balcke. As I have found, the letter from Ms Balcke was reasonable in the circumstances and was not an attack on the Applicant. Further, the letter sought nothing more than a discussion with the Applicant about allegations which, for reasons I have set out above, were sufficiently particularised for the Applicant to have simply attended the meeting and responded. Even if this was not the case, there is no reason why the Applicant could not have asked for more information about the allegations if any aspect was unclear.

[130] I do not accept that the Applicant’s email to Mr Stevenson is evidence that the Applicant was distressed. Rather that email evidences that the Applicant was extremely angry. The examples the Applicant provided in relation to her work history and dealing with issues in the theatre were unnecessary given that no finding had been made against her to bring her professional standing into question. Indeed, the Applicant refers to the allegations as “unsubstantiated” and had the Applicant simply attended the meeting, the likely outcome, based on the information provided to Mr Stevenson by the Applicant, would have been that the allegations were not substantiated.

[131] The Applicant’s email is also laced with criticism of Ms Balcke both on a personal and professional basis including a statement that the Applicant is “infinitely more qualified and experienced both academically and clinically” than Ms Balcke. While that may be correct, Ms Balcke – on the Applicant’s evidence – was her manager and such comments were offensive and unnecessary in the circumstances. The Applicant further demonstrated her view about Ms Balcke’s competence by agreeing under cross-examination that she considered Ms Balcke to be professionally inferior to her. The Applicant’s assertion that her evidence “catches [Ms Balcke] in a complete and utter lie” is also unwarranted in circumstances where the Applicant could have attended the meeting requested by Ms Balcke and provided her with the documents establishing an error on Ms Balcke’s part. Instead, the Applicant reacted angrily to Ms Balcke’s letter of 22 January 2021 and responded with the same conduct she accused Ms Balcke of – by making offensive and unsubstantiated allegations against Mr Balcke.

[132] While there was some basis for the Applicant to be concerned about attending the meeting requested by Ms Balcke, her response was out of all proportion to Ms Balcke’s letter of 22 January 2021. This is particularly so in circumstances where the Applicant believed that she had a complete defence to the allegations and had been invited to bring a representative to the meeting. I am also of the view that if the Applicant was capable of writing a five page email in extremely strong terms to the CEO of the Hospital explaining her position, she was capable of attending a meeting with Ms Balcke. The email to Mr Stevenson expresses anger about Ms Balcke’s conduct rather than any basis for the Applicant feeling unsafe in the presence of Ms Balcke. Furthermore, the rude and disrespectful response that the Applicant provided to Ms Balcke in her email of 24 January 2021 advising that she would not attend the meeting, belies her evidence of being concerned about attending a meeting with Ms Balcke because she felt unsafe. The tone of the email sent by the Applicant to Ms Balcke in response to the meeting invitation is contrary to the assertion that the Applicant felt unsafe in any dealings with Ms Balcke. If the Applicant could write those emails, there is no reason why she could not have summoned the fortitude to attend the meeting, with a support person, as requested.

[133] I now consider Mr Stevenson’s response to the Applicant’s email. In circumstances where Mr Stevenson is the CEO of a large and busy Hospital, I do not consider that there was an unreasonable delay on the part of Mr Stevenson in responding to the Applicant’s email given that it was sent at 10.43 pm on Sunday 24 January and Mr Stevenson’s response was sent to the Applicant at 3.54 pm on Wednesday 27 January. I also observe that Tuesday 26 January was a public holiday and that this provides a further reason for the timing of Mr Stevenson’s response. I do not consider the Applicant’s expectation that Mr Stevenson interview all of the persons referred to in her email was reasonable. On any view, the email was an over-reaction to a simple request for an employee to attend an interview with her manager and it did not warrant Mr Stevenson launching a full-scale investigation into the Applicant’s competence.

[134] I do not consider that Mr Stevenson’s assessment that the explanations provided by the Applicant for the matters raised in Ms Balcke’s email were simple, is an indication that those matters were without substance. For the reasons set out above, Ms Balcke was perfectly entitled to raise those matters with the Applicant and they were not insignificant. The comment that the explanations were simple is an indictment on the Applicant for sending a five page email containing largely irrelevant information, rather than simply attending the meeting and providing the small amount of relevant information in the email, directly to Ms Balcke.

[135] Contrary to the Applicant’s submission, for reasons set out above, the Applicant did not decline to meet Ms Balcke without proper representation and her response could not be construed as postponing rather than refusing the meeting. Rather, the Applicant refused to attend the meeting requested by Ms Balcke. The issue of representation had nothing to do with the Applicant’s refusal to attend the meeting given that Ms Balcke had invited the Applicant to bring a representative to the meeting. There is no evidence that the Applicant sought to postpone the meeting so that she could arrange for a representative to attend with her. The Applicant repeated her refusal to attend the meeting in her email to Mr Stevenson, by stating: “I ask you to please intervene and put a stop to this nonsensical meeting which I will not be attending regardless”. Effectively, that statement is informing Mr Stevenson that regardless of his response to her email, the Applicant will not attend the meeting.

[136] Also, contrary to the Applicant’s submission, Mr Stevenson did not “mischaracterise” the Applicant’s conduct as a “refusal to meet” and in fact, that is an accurate description of the Applicant’s conduct. Further, Mr Stevenson did not state in his email to the Applicant that her conduct was a failure to comply with a lawful and reasonable management request. Rather, Mr Stevenson informed the Applicant – correctly in my view – that she was obliged to comply with lawful and reasonable management requests and that her refusal to do so had “potentially serious repercussions”.

[137] Significantly, Mr Stevenson informed the Applicant that he would ask Ms Balcke to cancel the meeting while she considered the Applicant’s response. Mr Stevenson also indicated that he would continue to monitor the situation by stating that he would ask Ms Balcke to copy him into any further correspondence. To this extent, Mr Stevenson responded to the Applicant’s unreasonable refusal to attend a meeting with Ms Balcke to discuss the matters raised in Ms Balcke’s email of 22 January, by indicating that the meeting would be cancelled and that he would refer the Applicant’s responses to Ms Balcke for her consideration. Mr Stevenson did not direct the Applicant to attend the meeting nor require her to engage with Ms Balcke about the matters set out in Ms Balcke’s email. Had the Applicant simply allowed the process set out in Mr Stevenson’s email to occur, Ms Balcke may have simply accepted her explanations.

[138] It is also significant that Mr Stevenson did not state in his response to the Applicant that he would forward the Applicant’s email of 22 January in its entirety to Ms Balcke. Ms Balcke’s evidence as to whether she received this email or the resignation email or both emails, was unclear. This matter was not pursued in cross-examination, and it is arguable that Mr Stevenson did not forward the Applicant’s email of 24 January to Ms Balcke at the time he received it, but rather intended to forward her responses to the two issues raised in Ms Balcke’s letter of 22 January and did not do so before the Applicant’s resignation. In any event, given the nature of the allegations raised against Ms Balcke by the Applicant, it would have been reasonable for Mr Stevenson to forward the entire email of 24 January to Ms Balcke so that Ms Balcke was aware of the Applicant’s views about Ms Balcke’s conduct.

[139] To the extent discussed above, Mr Stevenson’s response to the Applicant’s email of 24 January was reasonable, insofar as it dealt with the allegations raised by Ms Balcke, the Applicant’s response to those allegations and the meeting request. It was also reasonable that Mr Stevenson did not interview the numerous persons named in the Applicant’s email to establish her competency, given that it was not in question. However, I am also of the view that Mr Stevenson failed to deal appropriately with other matters raised in the Applicant’s email. As the Applicant correctly submitted, in addition to responding to the matters raised by Ms Balcke in the letter of 22 January, the Applicant’s email of 24 January makes serious allegations about conduct that, if established, could constitute bullying. This is so, notwithstanding that the Applicant does not make a direct assertion that she has been bullied nor ask for those allegations to be investigated.

[140] Despite this lack of clarity, Mr Stevenson’s failure to identify and respond to these matters was inappropriate. The Respondent is a large employer with dedicated human resource management professionals to whom Mr Stevenson had access. Mr Stevenson consulted the Respondent’s HR staff about the Applicant’s email of 24 January. Mr Stevenson should have informed the Applicant that her allegations would be investigated, or at least acknowledged those allegations and asked the Applicant whether she wanted them investigated. Mr Stevenson did not do this and instead formed the view that the Applicant had raised the allegations to avoid a performance related meeting. Such a response to the allegations made by the Applicant is inadequate and it was legitimate for the Applicant to be concerned at this response.

[141] However, the Applicant’s resignation, was also a disproportionate reaction to Mr Stevenson’s response, notwithstanding the issues I have identified. The Applicant resigned from her employment by email sent some six hours after Mr Stevenson’s response. The Applicant’s email advising of her resignation is considered and detailed and does not evidence distress. Rather, the Applicant’s email evidences disappointment with Mr Stevenson’s lack of acknowledgement of the Applicant’s views about her value to the Respondent. This is apparent from the Applicant’s statement that her departure will be a loss to the Hospital. Further, the Applicant initiated an exit interview with Mr Stevenson and Ms Hartley and attended that interview. The resignation letter is not consistent with the Applicant being forced to resign by a course of conduct engaged in by the Respondent. Instead, it indicates that the Applicant has, by her own conduct, placed herself in an untenable position with respect to her employment.

[142] The Applicant’s evidence and submissions about the exit interview do not assist her argument that she was forced to resign by a course of conduct engaged in by the Respondent. The Applicant contended that Mr Stevenson did not answer a question she posed during the exit interview and that Ms Hartley gave an untruthful answer. The question posed by the Applicant was whether Mr Stevenson and Ms Hartley knew that Ms Archer had resigned because of similar issues with Ms Balcke.

[143] Four points can be made about the exit interview. Firstly, the exit interview occurred after the Applicant’s resignation and can have had no bearing on her decision to resign. Secondly, it is apparent from the Applicant’s evidence that her views about the exit interview is that she was the interviewer and Mr Stevenson and Ms Hartley were interviewees under some obligation to answer questions she posed. Quite simply, neither Mr Stevenson nor Ms Hartley were under any obligation to answer questions posed by the Applicant and those answers could not constitute a course of conduct which resulted in, or had the probable result, of the Applicant resigning. Thirdly, it is probable that neither Mr Stevenson nor Ms Hartley had an opportunity to read Ms Archer’s email in detail prior to attending the exit interview. Fourthly, given the highly personal information contained in that email it would have been inappropriate for Mr Stevenson and Ms Hartley to discuss it with the Applicant.

[144] In all of the circumstances, I do not accept that the Applicant has established that she was forced to resign from her employment because of conduct, or a course of conduct, engaged in by Ms Balcke, Ms Hartley and/or Mr Stevenson. In addition to the matters set out above, I have had regard to the following matters. The Applicant knew that the Respondent had a bullying policy and took no step to make a complaint about Ms Balcke prior to the request for the Applicant to attend a meeting with Ms Balcke to discuss allegations about her work performance.

[145] The Applicant did not complain of bullying to her doctor until after her resignation. While this is not of itself determinative of whether the Applicant was bullied, the evidence in the Applicant’s supplementary witness statement and written submissions was inconsistent with the letter from the Applicant’s doctor and her evidence under cross examination. In her supplementary witness statement the Applicant said that her concerns relating to Ms Balcke’s bullying behaviour and the stress and anxiety this caused, were reported to her doctor several times in 2020 and into 2021, “predating by a significant period of time, the letter from Ms Balcke.” The letter from the Applicant’s doctor tendered by her is dated 27 April 2021 and does not evidence that the Applicant reported these matters prior to that date.

[146] Under cross-examination, and in response to questions from the Commission, the Applicant said that she did see her doctor about the alleged bullying prior to 27 April and that this was “probably perhaps” the first time she discussed the matter with him. When the Applicant’s representative objected during the Applicant’s evidence about this matter, suggesting that the Applicant had not understood the question, the Applicant immediately said: “I didn’t speak to Dr Jones prior to the 27^th about problems at work.” 39 There was no re-examination on this point. In closing submissions, the Applicant’s representative contended that the witness statement was correct. I do not accept that submission.

[147] I also consider that despite Mr Stevenson’s failure to address the bullying and related allegations made in the Applicant’s email of 24 January 2021, the Applicant did have options other than resigning. The Applicant had no compunctions about sending that email to the CEO of the Hospital. As I have previously observed, the email was in strong and direct terms and was highly critical of Ms Balcke. Upon receipt of Mr Stevenson’s response, the Applicant could have sent a further email to Mr Stevenson making clear that she had alleged bullying on the part of Ms Balcke and was requesting that those allegations be investigated.

[148] Instead, the Applicant wrote a detailed and considered email resigning her employment and initiated an exit interview at which she reiterated her criticisms of Ms Balcke in detail, even going to the extent of reading out criteria from Ms Balcke’s job description and proffering her views to the effect that Ms Balcke did not meet those criteria. The Applicant also took up the cudgels on behalf of her colleagues who remained in employment highlighting to Mr Stevenson and Mr Hartley the likelihood that more nursing staff would resign. Significantly, as is evident from her notes of the exit interview, the Applicant made no mention of being forced to resign and instead focused on the loss to the Hospital resulting from her resignation and the possible resignation of other nursing staff for the same reasons. This is not the conduct of a person forced to resign from her employment by conduct or a course of conduct engaged in by the employer.

[149] I also consider that the Applicant’s assertions that she had no reason to resign and that her position with the Respondent provided her with flexibility which suited her personal circumstances, does not indicate that she was forced to resign. Rather, the evidence indicates that having resigned the Applicant later regretted her decision. This is apparent from the Applicant’s evidence of changes that have been implemented at the workplace after her resignation. The fact that the Applicant may have benefited from those changes if she had not resigned is not a basis for finding that she had no real option but to resign. The Applicant had the option of remaining in her position and participating in any changes that eventuated.

[150] Consistent with the comments of the Full Bench ABB Engineering Construction Pty Ltd v Doumit  40 while there is a narrow line distinguishing conduct that forces an employee to resign, from conduct that cannot be held to cause employment to be terminated on the employer’s initiative, it is important that the line be closely drawn and rigorously observed. It is also important that caution is exercised in treating a resignation as being forced, where the decision to resign is based on the perceptions and subjective response of an employee, made unilaterally.

[151] Resignation to escape a difficult or unpleasant situation in a workplace will not amount to dismissal where the employee has other options besides resignation. This is so even where the situation in a workplace is objectively difficult or unpleasant or where the options are to resign or be subject to an investigation or disciplinary process, as distinct from resign or be dismissed. Here the Applicant opted to resign to remove herself from a situation which she perceived to be unfair and from conduct she perceived to be bullying. While some of the Applicant’s concerns were valid, on balance the conduct the Applicant complains of was not such that I could be satisfied that the Applicant was forced to resign. The Applicant had options other than resignation and it cannot be said that the conduct or course of conduct she complains about had the intended or probable effect of ending her employment. Finally, I consider that even if all the conduct described by the Applicant occurred, it is not a course of conduct that objectively, was so egregious, that it gave the Applicant no real choice but to resign. While I do not underestimate the difficulties the Applicant would have faced if she remained at work, and the adverse impact upon her of resigning from her employment with the Respondent, I do not accept that she was forced to resign by a course of conduct engaged in by the Respondent.

[152] In those circumstances, to allow the Applicant to apply for an unfair dismissal remedy, would allow the Applicant to revisit a considered decision to resign rather than remaining at work and exploring other available options, simply on the basis that after the resignation the Applicant appreciated the difficulty of finding a similar position or perceived some improvement in the workplace she had left and regretted her resignation.

Conclusion

[153] Accordingly, I find that the Applicant was not dismissed as provided in s. 386 of the FW Act and cannot make an application under s. 394 for a remedy for unfair dismissal. The application must be dismissed and an Order 41 to that effect will issue with this Decision.

DEPUTY PRESIDENT

Appearances:

Ms J Urquhart for the Applicant.

Mr C Muir of Employer Services for the Respondent.

Hearing details:

10 & 11 May.

2021.

Brisbane.

Printed by authority of the Commonwealth Government Printer

<PR732523>

 1   Exhibit A7 Witness Statement of Ms Celia O’Keefe Exhibit A6; Supplementary Witness Statement of Ms Celia O’Keefe.

 2   Exhibit A1 Witness Statement of Ms Louella Cooper.

 3   Exhibit A2 Witness Statement of Ms Paula Archer.

 4   Exhibit A3 Witness Statement of Mr Richard O’Keefe.

 5   Exhibit A4 Witness Statement of Ms Marilyn Westnidge.

 6   Exhibit A5 – Witness Statement of Ms Moir Briggs.

 7   Exhibit R1 Witness Statement of Ms Renae Balcke.

 8   Exhibit R2 Witness Statement of Mr Adam Stevenson.

 9   Exhibit R3 Witness Statement of Ms Denise Hartley.

 10   [2006] AIRC 496 (PR973462).

 11   Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).

 12   [2017] FWCFB 3491

 13   [2019] FWC 5583

 14   Exhibit A6 – Annexure 1A.

 15   Ibid – Annexure 1B.

 16   Ibid – Annexure COK-21.

 17   Ibid Annexure COK-7.

 18   Ibid – Annexure COK-4 and 5.

 19   Exhibit R1 Witness Statement of Renae Balcke – Annexure RB1.

 20   Exhibit A2 Annexure PA-1.

 21   Exhibit A2 Annexure PA-2.

 22   Exhibit A7 Annexure COK-SS-1.

 23   Transcript PN262.

 24   Transcript PN454.

 25   Exhibit A2 Annexure PA-1.

 26   Witness statement of Renae Balcke, annexure “RB-1”.

 27   Witness statement of Denise Hartley, annexure “DH-1”.

 28   Transcript PN829.

 29   Transcript PN1135.

 30   Transcript PN1175.

 31   Transcript PN1177.

 32   Australian Hearing v Peary [2009] AIRCFB 680.

 33   Marcia Doyle v Department of Justice 2008 AIRC 350.

 34   Ibid.

 35   O’Meara v Stanley Works Pty Ltd PR976432.

 36   [2018] FWC 1455.

 37   Witness Statement of Renae Balcke at [8].

 38   Attachment AS-1 to the Witness Statement of Adam Stevenson p. 2.

 39   Transcript PN518 – 521.

 40   Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).

 41   PR732533.