Mrs Loredana Pastor. [2019] FWC 257. (AB2018/664). Binet, DP. 26 March 2019.

Read full decision: https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc257.htm

The applicant in this matter not only lost her case, but the previous conciliation was fraught with an angry paid agent. To the extent the (very patient) DP, warned, ejected and then partially allowed the applicant’s (unnamed) paid agent to act as a support person only. Aegis alleged that he had been aggressive and disruptive during that process and opposed him being granted leave at the Conciliation Conference and any future proceedings.

This decision also deals with confidentiality in relation to FWC dealings and reasonable management action.

Ms Pastor is employed by Aegis Aged Care Group (Aegis) at the Aegis Carrington Aged Care facility. Ms Pastor alleges that a Clinical Nurse Manager and an Assistant in Nursing had engaged in bullying behaviour towards her.

As per normal; practice the matter was first dealt with by way of conciliation. Deputy President Binet (who went on to arbitrate the matter) was the conciliator.

Aegis assert that their investigations reveal that Ms Pastor had not been subjected to workplace bullying and that Ms Pastor’s application is false and vexatious.

Aegis was unrepresented and the applicant did not advise that she would be attending with a “paid agent” who also supported her at previous meeting held between the applicant and Aegis.

As the DP noted in the decision:

“Ms Pastor’s representative insisted that he was entitled to represent Ms Pastor as of right. He responded aggressively to my efforts to explain that there was no automatic right to be granted permission to be represented and displayed a lack of familiarity with FWC processes and the relevant law. The Named Persons and the Aegis representatives appeared to be intimidated by the conduct of Ms Pastor’s representative and the progress of the Conciliation Conference was delayed significantly endeavouring to resolve the matter.

Explaining that:

The purpose of the Conciliation Conference was to discuss with the parties the matters of concern to Ms Pastor and whether the parties could voluntarily agree to interim measures to address Ms Pastor’s concerns. More ideally it also provided an opportunity for the parties to agree to more permanent measures to resolve Ms Pastor’s concerns and protect and preserve the ongoing relationship between all the parties. Such an outcome would avoid the need for adversarial litigation with the associated risk of harm to the ongoing relationship between the parties”.

Having concluded that the paid agent was not fit to represent the applicant and that the applicant was capable of representing herself, Conference but initially permitted her representative to remain in the Conciliation Conference as her support person. Then…

During the course of the Conciliation Conference Ms Pastor’s representative raised his voice, was aggressive, disruptive and made incorrect assertions about the relevant legal principles. After several warnings he was asked to wait outside during the joint sessions. I informed both he and Ms Pastor that at any point during the Conciliation Conference should she wish to adjourn and speak to him she was welcome to do so.

 “He later attempted to re-enter the room in which the Conciliation Conference was being held uninvited. He refused to leave and continued to argue with me in a raised voice until I informed him that I would request to have him removed if he didn’t withdraw from the room. He eventually withdrew from the room”.

 “I subsequently split the parties into private session. I permitted him to join Ms Pastor during the split session and to speak on her behalf during the split session”.

The arbitration (or in this matter, “Determinative Conference”) could not proceed without the representative again being the subject of attention.

Ms Pastor sought permission to be represented at the Determinative Conference by the representative who had previously accompanied Ms Pastor to the Conciliation Conference. In considering this formal request the DP cited Warrell v Fair Work Australia the Federal Court held that:

“A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission…”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.

 Because that the representative was more a hindrance than a help, the DP refused permission for the applicant not be represented’ stating:

“Regardless of the identity or conduct of Ms Pastor’s chosen representative I was not satisfied that granting permission to Ms Pastor to be represented would enable the matter to be dealt with more efficiently taking into account the complexity of the matter, that Ms Pastor was unable to represent herself effectively or that it would unfair not to grant her permission to be represented taking into account fairness between herself and the other parties”.

Despite this:

Although he was not granted permission to represent Ms Pastor, her representative attended the Determinative Conference. I note that during the course of the proceedings I observed him attempting to ‘coach’ Ms Pastor by mouthing instructions to her while she was giving evidence under oath. I counselled him about the impropriety of his conduct. Later in the proceedings he endeavoured to pass Ms Pastor a handwritten list of questions.

In another twist, Aegis requested that the matter remain confidential. The DP noted that this was allowed:

“Section 594 of the FW Act provides the FWC with the power to make orders with respect to the confidentiality of evidence given in hearings as follows:

 “594 Confidential evidence

  • The FWC may make an order prohibiting or restricting the publication of the following in relation to a matter before the FWC (whether or not the FWC holds a hearing in relation to the matter) if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:

(a) evidence given to the FWC in relation to the matter;

(b) the names and addresses of persons making submissions to the FWC in relation to the matter;

(c) matters contained in documents lodged with the FWC or received in evidence by the FWC in relation to the matter;

(d) the whole or any part of its decisions or reasons in relation to the matter.”

 The DP finding that:

 “Aegis and the Named Persons entered into discussions during the Conciliation Conference on the presumption that those discussions were without prejudice and would remain confidential. As pointed out by Ms Pastor the FWC has an obligation to afford the parties procedural fairness. To allow Ms Pastor to subsequently treat those discussions as other than confidential and without prejudice would be a breach of procedural fairness.

 Departing from the principle of open justice by issuing confidentiality orders is permitted where not to do so would defeat the proper administration of justice.  An order made pursuant to section 594(1) of the FW Act must be clear in its terms and do no more than is necessary to secure the due administration of justice”.

 The main event (finally):

  • Ms Pastor commenced employment with Aegis at the Carrington Facility in October 2014.
  • Ms Pastor was issued with a final written warning in relation to her care of a patient. The incident in question was substantiated by way of video footage provided to Aegis by the resident’s family.
  • An altercation occurred between and one of the named respondents.
  • Aegis wrote a letter to Ms Pastor informing her that they were commencing an investigation into the events and the quality of her care of a patient:

 “It is alleged that:

  1. On Wednesday 5 September 2018 you behaved in a totally inappropriate manner in an exchange with another work colleague, named Aicha. Your actions were in the direct view of the residents.
  2. You also made racial remarks (Did not like working with African).
  3. A resident has refused to receive care from you because you are rough, uncaring and have caused her a skin tear in the past.
  4. When the RN in charge attempted to discuss her concerns with you as to the above, your response was very aggressive and unnecessarily defensive. You were argumentative, rude and extremely dismissive and did not listen to what she outlined to you.”
  • The applicant denied the allegations and alleging that That another employee threatened to hit in the face and that another employee had elbowed her waist as she passed Ms Pastor in the dining area. These allegations were investigated and ground not to be truthful.
  • However, the investigation into the applicant’s issues did not go so well – through corroborating evidence, it was found that she:
    • Directed abusive and inappropriate language at one of the named respondents.
    • Was often unprofessional, argumentative and rude to patients and co-workers. To the extent that a patient refused her care.
    • “Did not like black people”.
  • In a twist of fate, it was also noted as a result of an administrative error, those present at the Investigation Meeting were unaware of Ms Pastor’s previous Final Warning. The letter states that had they been aware of that warning that Ms Pastor would have been dismissed rather than given a further written warning.

Then the applicant lodged a Stop Bullying claim with the FWC counterclaiming that she had been treated poorly.

 Unsurprisingly, the DP dismissed the application, stating:

 “I am not satisfied that [the respondents] either as individuals or as a group have repeatedly behaved unreasonably towards Ms Pastor or that the behaviour identified by Ms Pastor occurred or if it did that it created a risk to health and safety.

 “In light of the above the Application is hereby dismissed”.

The above matter also dealt with a number of fundamental issues:

What is bullying?

Under s.789FD(1) of the Fair Work Act 2009 (FWA), Bullying is said to have occurred:

Workplace bullying occurs when: an individual or group of individuals repeatedly behaves unreasonably towards a worker or a group of workers at work, AND the behaviour creates a risk to health and safety.

Reasonable management action conducted in a reasonable manner does not constitute workplace bullying.

In Alemtsehay Mekuria v MECCA Brands Pty Ltd t/a Mecca Cosmetica; Debra Kelso; Christine Mantacas; [name redacted], the Full Bench stated in relation to workplace bullying:

“[Bullying] establishes two prerequisites:

  • First, the Commission must be satisfied that the worker has been bullied at work by an individual or group of individuals, and
  • Second, the Commission must be satisfied that there is a risk that the worker will continue to be bullied at work by the individual or group.

“The use of the definite article in…in connection with the individual or group of individuals indicates that they must be the same as the individual or group of individuals…That is, it is not sufficient to satisfy the second condition…by demonstrating that there is a risk of being bullied at work by individuals other than those who have been found to have engaged in [the] bullying…”

What is “Reasonable Management Action”?

  1. The behaviour (being relied upon as bullying conduct) must be management action;
  2. It must be reasonable for the management action to have been taken; and
  3. The management action must have been carried out in a manner that is reasonable.

In an Application by G.C. [2014] FWC 6988 what is reasonable management action was described as follows:

  • Determining whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time. Without limiting that assessment, the considerations might include:

– the circumstances that led to and created the need for the management action to be taken;

– the circumstances while the management action was being taken; and

– the consequences that flowed from the management action.

The specific ‘attributes and circumstances’ of the situation including the emotional state and psychological health of the worker involved may also be relevant.

The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’. In general terms this is likely to mean that:

  • Management actions do not need to be perfect or ideal to be considered reasonable;
  • A course of action may still be ‘reasonable action’ even if particular steps are not;
  • To be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’;
  • Any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it; and
  • Consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.

No Reasonable Prospect of Success

In Spencer v The Commonwealth of Australia, consideration was given to the meaning of the phrase, ‘no reasonable prospect’, in the context of s.31A of the Federal Court of Australia Act 1976. In that case the plurality (Hayne, Crennan, Kiefel and Bell JJ) said the following:

“In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described with or without the additional intensifying epitaphs like “clearly”, “manifestly” or “obviously” as “frivolous”,” untenable”, “groundless” or “faulty” but none of these expressions alone or in combination should be understood as providing a sufficient chart of the metes and bounds of the powers given by section 31A nor can the content of the word “reasonable” in the phrase, “no reasonable prospect” be sufficiently, let alone completely illuminated by drawing some contrast with what would be a frivolous, untenable, groundless or faulty claim.

Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under section 31A if, and only if, satisfied that there is no reasonable prospect of success. Of course it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly but the elucidation of what amounts to no reasonable prospect can best proceed in the same way as content has been given through a succession of decided cases to other generally expressed statutory phrases such as “just and equitable” when it is used to identify the ground for winding up of a company. At this point in the development of the understanding of the expression and its application, it is sufficient but important to emphasise that the evident legislative power as revealed by the text of the provision would be defeated if its application is read as confined to cases of a kind which fell within the earlier different procedural regimes.”

Confidentiality

Mrs Loredana Pastor. [2019] FWC 257. (AB2018/664). Binet, DP. 26 March 2019.

“Section 594 of the FW Act provides the FWC with the power to make orders with respect to the confidentiality of evidence given in hearings as follows:

“594 Confidential evidence

(1) The FWC may make an order prohibiting or restricting the publication of the following in relation to a matter before the FWC (whether or not the FWC holds a hearing in relation to the matter) if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:

(a) evidence given to the FWC in relation to the matter;

(b) the names and addresses of persons making submissions to the FWC in relation to the matter;

(c) matters contained in documents lodged with the FWC or received in evidence by the FWC in relation to the matter;

(d) the whole or any part of its decisions or reasons in relation to the matter.”

The DP finding that:

“Aegis and the Named Persons entered into discussions during the Conciliation Conference on the presumption that those discussions were without prejudice and would remain confidential. As pointed out by Ms Pastor the FWC has an obligation to afford the parties procedural fairness. To allow Ms Pastor to subsequently treat those discussions as other than confidential and without prejudice would be a breach of procedural fairness.

Departing from the principle of open justice by issuing confidentiality orders is permitted where not to do so would defeat the proper administration of justice. An order made pursuant to section 594(1) of the FW Act must be clear in its terms and do no more than is necessary to secure the due administration of justice”.

Representation

Warrell v Fair Work Australia the Federal Court held that:

“A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission…”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.