Alice Lamb v East Wimmera Health Service [2024] FWC 530

1 Fair Work Act 2009 s.365 - Application to deal with contraventions involving dismissal Alice Lamb v East Wimmera Health Service (C2023/7875) DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 14 MARCH 2024 Application to deal with contraventions involving dismissal [1] Alice Lamb, the applicant, is a psychologist, who until 24 November 2023 was employed in that capacity by the East Wimmera Health Service, the respondent. Ms Lamb resigned from her employment with the respondent with effect from 24 November 2023 but says she was dismissed because she was forced to do so because of conduct, or a course of conduct, engaged in by the respondent.1 The applicant applied under s 365 of the Fair Work Act 2009 (Cth) (Act) for the Commission to deal with a dispute in which she alleges she was dismissed in contravention of the general protections provisions of the Act. The respondent disputes that that is so. And so, it is necessary to determine whether the applicant was dismissed. [2] For the reasons which follow, the applicant’s contention that she was forced to resign because of conduct, or a course of conduct, engaged in by the respondent is rejected. Although I accept the applicant had many grievances about her workplace, its culture, the conduct of some of its employees and her perception of the inaction by the respondent about her grievances, and I accept that she ultimately resigned because of these grievances, that is not the same as being forced to resign because of the grievances or the respondent’s conduct, or a course of conduct, in relation to the grievances. As the applicant resigned from her employment, she was not dismissed within the meaning of s 386 of the Act. Therefore, the applicant cannot bring an application under s 365. Consequently, the application in C2023/7875 will be dismissed. [2024] FWC 530 DECISION -- 1 of 8 -- [2024] FWC 530 2 [3] The word “dismissed” when used in the Act, unless the context otherwise requires, has the meaning ascribed to it by s 386.2 Section 386 relevantly provides: “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. . . .” [4] Section 386(1)(b) of the Act appears intended to capture or reflect the common law position sometimes described as constructive dismissal - where the employee is, in effect, instructed to resign by the employer in the face of a threatened or impending dismissal or where the employee resigns in response to conduct by the employer, which gives them no reasonable choice but to resign – the acceptance of repudiatory conduct in which the employer engaged.3 [5] The reference to “conduct” in s 386(1)(b) of the Act “includes an omission”.4 [6] The applicant began her employment with the respondent on 9 March 2023.5 Between that time until around 6 March 2023, the applicant reported to Ms Leanne Jeffrey.6 From 6 March 2023 until her resignation, the applicant’s line manager was Ms Meghan Noonan, who is the respondent’s Director of Primary Care.7 On 24 March 2023, the applicant sent Ms Noonan an email in which she gave notice of her resignation as follows: “I am writing to give my 4 weeks notice. I have been selected for another position starting on the 30th of November, that will cover my Thursday and Friday availability. These positions are more family friendly and have higher renumeration. Would you like me to email the well-being team? Particularly so no more bookings are made with myself. I would like Chinchu to organise a small farewell, perhaps lunch off-campus, when she returns from her annual leave. Otherwise, I just want to leave quietly.”8 [7] The applicant was due to finish her employment on 21 November 2023 but following a discussion with Ms Noonan, the applicant agreed to work until 24 November 2023.9 [8] The applicant gave some evidence about the conduct about which she complained and which she argues left her with no choice but to resign.10 The applicant said that her reasons were “many and varied” and that she had lost trust in the respondent. The applicant said that the conduct included the matters listed below. -- 2 of 8 -- [2024] FWC 530 3 • Constant bullying by colleagues and a particular manager, and the manager was incompetent.11 • In 2021: o an anti-vaccination social worker colleague yelled a conspiracy theory at the back of the applicant’s head while she worked at a computer to the effect that “you will make your girls (referring to the applicant’s daughters) infertile”;12 o the applicant was left with no office space;13 and o the applicant’s manager lost funding for the applicant’s role and blamed the applicant for this, although the manager failed to complete monthly reports to the funding body.14 • In 2022: o a graduate nurse employed to perform administrative/intake work was paid same as the applicant who is a senior clinician/psychologist;15 o the graduate nurse yelled at the applicant, when the applicant was trying to supervise the graduate nurse, with words to the effect that “it’s a fact you look like a lesbian”;16 and o the applicant took Family Violence Leave and was questioned by an executive staff member about how violent her former partner really was, alluding to gossip about the applicant.17 • In 2023: o colleagues repeatedly told the applicant that the respondent would countersue her if something happened to one of her clients;18 and o after resigning, another colleague said words to the effect that “well you did have a lot of personal problems”.19 [9] The applicant said that she experienced constant bad behaviour from colleagues. On one occasion, in the tea room while the applicant was eating her lunch, she was asked, “were you popular in High School?”20 The applicant said that when she started employment she received “nasty” and “inappropriate” emails from a nurse at St Arnaud Hospital.21 [10] The applicant said she would constantly receive incorrect directions from her manager.22 For example, the applicant said the manager would telephone her while the applicant was not at work and tell her to investigate a client complaint about the applicant. The applicant said she would ignore these directions and attempt to avoid the manager.23 The applicant said she was constantly over-booked with clients.24 [11] The applicant said that she raised or reported most of these issues to management frequently,25 but nothing was done, and nothing changed. [12] The applicant gave no particulars about the conduct beyond that which appears above. The veracity of the generalised grievances could not properly be challenged by the respondent. However, that which is apparent from the applicant’s evidence is that most of the conduct the applicant complained of happened while she was reporting to Ms Jeffrey. The applicant accepted that her reporting relationship to Ms Noonan was much better, that Ms Noonan was very supportive of her, and that Ms Noonan did what she could to resolve issues that the applicant had raised with her. -- 3 of 8 -- [2024] FWC 530 4 [13] Ms Noonan gave evidence that the applicant would, during her employment periodically, raise complaints with Ms Noonan about her workload and remuneration. Ms Noonan said the applicant also made numerous other complaints during her employment to which Ms Noonan responded by making every effort to accommodate the applicant. An example of the complaints raised is contained in an email from the applicant to Ms Noonan dated 22 September 2023 which set out the following: “Good evening Meghan (I see you are on leave). I see my line manager in (sic) on leave. I have recently returned from surgery. I returned to work yesterday the 21st to a full day of bookings no time to do case notes or other admin. I did not have access to isoft as per common at EWHS, which led to issues. I am not taking responsibility for this, this is EWHS mismanagement. It impacts patient care. EWHS I am aware rely on staff doing unpaid work in their time off. I am unwilling to do unpaid work in my personal time. I will not come to work under these untenable conditions. I have raised these conditions over and over. Therefore, I will not be coming to work today the 22nd of September. I note, Emily is now full-time who gets paid more or the same as the Allied Health Team to do Intake and Admin, also a mismanagement of EWHS. Leanne bullied me, and now is my line manager again at the moment. Could an appropriate EWHS member please contact me today the 22nd of September to work out my hours for the fortnight. I could work from home to do tasks that need doing in relation to patient care. The fall out of this is caused by EWHS mismanagement. My needy clients will need to be contacted. I will not be blamed for the incompetence and dysfunction of EWHS.”26 [14] Ms Noonan’s evidence was that when she returned from leave on 5 October 2023, she followed up on these complaints by telephone with the applicant, but the applicant indicated she did not wish to pursue any of the complaints, resolving instead to talk about personal matters.27 Ms Noonan said the applicant subsequently sent her an apology by email on 6 October 2023,28 the text of which is set out below: “Dear Meghan. So as you know, I have got frustrated lately, apologies. On reflection, I am experiencing moral injury from the work I do, and what I get exposed to on a regular basis. My view of others and the world etc, is not overly positive at the moment. Also, as a single mother in the local rural community (that is quite patriarchal) I struggle a little too with my different views. I also cannot get out much locally, given I run into clientele everywhere. I manage this by short getaways often, and getting out of the EWHS catchment zone. I thought this is worth sharing with management, as it is a real staffing issue. Furthermore, I find there is a disrespect for women in this area, and -- 4 of 8 -- [2024] FWC 530 5 awful undercurrents of that in the community. I plan on sending my girls to Maryborough Christian High School as a result. I have recently done 12 hours of CPD on supporting Police Officers in my other employment. This training acknowledged the problems of rural police postings and I relate, also working in a rural area and doing the type of work I do. However, in comparison, I do not have my colleagues, being the only Psychologist, to bond with, as Police Officers do. Although I do have some supports locally, but most of my friends do not live in the area (Ballarat, Melbourne, Tasmania). I also learnt recently, from my surgeon, that my bowel was 3mm off my skin! Prior to surgery. I was physically examined many times, it was not picked up, or followed up well. So I do not trust local health services, understandably. I need to go to Ballarat for all my medical needs. Which obviously takes time out of my work hours. It’s a reality of living and working rural. My other frustration at work is and always has been, I deal with a lot from my clients, and then do not have the capacity really to deal with frustrating behavior from some and particular colleagues. At times it gets the better of me. Thought I may have owed you some further explanation. I hope you had some pleasant and well deserved time-off with your family.”29 [15] Ms Noonan said the applicant alludes in the 22 September 2023 email to “mismanagement” of the respondent with respect to the remuneration of one of her co- workers.30 And that the applicant also felt aggrieved at her remuneration when compared to that co-worker.31 Ms Noonan said that there is no comparison between the remuneration of the applicant and her co-worker, who was employed by the Respondent under a separate industrial instrument as a nurse.32 Ms Noonan said the applicant's perspective “did not reflect the realities of employment at public health services”.33 On this Ms Noonan is plainly correct. The applicant’s real grievance is the differential outcomes of enterprise bargaining as reflected in the differential industrial instruments which resulted. [16] Ms Noonan’s evidence was that the applicant initially disputed her pay in around early May 2023, which Ms Noonan investigated.34 Ms Noonan concluded that the applicant was correctly classified as a Psychologist, Grade 2 under the Medical Scientists, Pharmacists and Psychologists Victorian Public Sector (Single Interest Employers) Enterprise Agreement 2021- 2025 (Agreement).35 Ms Noonan advised the applicant that her pay was consistent with her classification under the Agreement, and that her classification was correct considering her responsibilities.36 Ms Noonan said the applicant was not satisfied with this outcome, as she believed her work should have been paid at a higher rate.37 [17] Ms Noonan said that during the applicant's employment, Ms Noonan devoted resources to ensure the applicant was satisfied with her hours and work allocations and that the respondent had provided support to the applicant during periods she was experiencing family violence, through – apart from providing paid family violence leave – permitting the applicant to purchase additional leave and changing the dates of purchased leave on multiple occasions.38 [18] Ms Noonan’s evidence was not seriously challenged by the applicant, and I accept it. [19] Mr Geoffrey Lord is the respondent’s Director of People and Culture,39 and commenced employment in that role on 7 February 2022. Mr Lord said that during the applicant’s employment, she had approached him on a few occasions to discuss matters with respect to her -- 5 of 8 -- [2024] FWC 530 6 workload and operational issues.40 He cited, as an example, the complaints raised in the earlier extracted email of 22 September 2023.41 Mr Lord said, in relation to those complaints, that the applicant did not at any stage seek to pursue the matters raised by way of a formal complaint or grievance.42 The applicant did not dispute this but said by way of explanation, that by that stage she had lost confidence in the respondent. That explanation does not appear to be consistent with the explanation given to Ms Noonan in the applicant’s email of 6 October 2023 earlier set out. [20] The applicant led no evidence, apart from articulating several vague and unparticularised allegations of poor conduct by others directed to her, to support her claims that the conduct about which she complains occurred and that it was of such order that she had no choice but to resign. The applicant produced no written complaint to management about the conduct of others which I have earlier summarised, nor any record of the date on which an oral complaint was made, the particulars of the complaint or the identity of the person to whom the complaint was made. On the evidence of Ms Noonan, which I accept, the respondent either endeavoured to deal with all matters that the applicant had raised, albeit not always to her satisfaction, or did not pursue matters further because the applicant indicated that she did not wish to do so. Moreover, the applicant was covered by the Agreement, which has a dispute settlement term through which many, though likely not all, of the grievances raised could be resolved, including by arbitration by the Commission. Relevantly, disputes about classification and pay, reasonable overtime and working hours, work location and flexible working arrangements could all be ventilated through the procedure. Public sector agencies, such as the respondent, also have policies and procedures for dealing with complaints about bullying, discrimination and inappropriate workplace behaviour or conduct. None of these were utilised by the applicant but all were available as an alternative to resigning from her employment. [21] Whilst the applicant doubtless was fed up with her workplace, she resigned because in her words the new position she had secured was “more family friendly and [had a] higher renumeration”.43 Even if all of the conduct about which the applicant complains occurred, the conduct ought properly to have been pursued through the respondent’s processes and through the dispute settlement term of the Agreement. While the applicant had such reasonable choices available, she chose to resign. The applicant was not forced to resign because of conduct, or a course of conduct, engaged in by the respondent. [22] The applicant was not dismissed within the meaning of s 386 of the Act. -- 6 of 8 -- [2024] FWC 530 7 Order 1. I order that that application is C2023/7875 made by Alice Lamb be dismissed. DEPUTY PRESIDENT Appearances: A Lamb self-represented J Ryan of counsel for the respondent Hearing details: Hearing via Microsoft Teams 26 February 2024 Final written submissions: Applicant, 8 February 2024 Respondent, 25 January 2024 and 15 February 2024 Printed by authority of the Commonwealth Government Printer <PR771897> 1 Applicant’s Outline of Submissions dated 8 February 2024 at [2]. 2 Fair Work Act 2009 (Cth), s 12. 3 Explanatory Memorandum to the Fair Work Bill 2008 (Cth)at [1530]. 4 Fair Work Act 2009 (Cth), s 12. 5 Respondent’s Outline of Submissions dated 25 January 2024 at [1]. 6 Supplementary Witness Statement of Geoffrey Lord dated 15 February 2024 at [8]. 7 Witness Statement of Meghan Noonan dated 25 January 2024 at [2]. 8 Email from Alice Lamb to Meghan Noonan dated 24 October 2023, attached to the Respondent’s Form F8A. 9 Witness Statement of Meghan Noonan dated 25 January 2024 at [5]. 10 Applicant’s Outline of Submissions dated 8 February 2024 at [2]. 11 Applicant’s Form F8 dated 15 December 2023 under question 3.1. -- 7 of 8 -- [2024] FWC 530 8 12 Ibid. 13 Ibid. 14 Ibid. 15 Ibid. 16 Ibid. 17 Ibid. 18 Ibid. 19 Ibid. 20 Ibid. 21 Ibid. 22 Ibid. 23 Ibid. 24 Ibid. 25 Applicant’s Outline of Submissions dated 8 February 2024 at [2]. 26 Supplementary Witness Statement of Meghan Noonan dated 15 February 2024 at Attachment 1. 27 Ibid at [2]. 28 Ibid. 29 Ibid at Attachment 2. 30 Ibid at [5]. 31 Ibid. 32 Ibid. 33 Ibid. 34 Ibid at [3]. 35 Ibid. 36 Ibid at [4]. 37 Ibid. 38 Ibid at [6]-[7]. 39 Witness Statement of Geoffrey Lord dated 25 January 2024 at [1]. 40 Ibid at [2]. 41 Ibid. 42 Ibid at [4]. 43 Email from Alice Lamb to Meghan Noonan dated 24 October 2023, attached to the Respondent’s Form F8A. -- 8 of 8 --