APPEAL AGAINST THE DECISION TO TAKE DISCIPLINARY ACTION ON 17 FEBRUARY 2022

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00661

DELIVERED : TUESDAY, 13 September 2022

FILE NO. : PSAB 17 OF 2022

Appellant

AND

North Metropolitan Health Service

Respondent

CatchWords : Industrial Law (WA) ‑ Public Service Appeal Board ‑ Appeal under s 172 of the Health Services Act 2016 and s 80I(1)(c) of the Industrial Relations Act 1979 ‑ Review of decision de novo ‑ Misconduct findings ‑ Disciplinary action ‑ Penalty imposed in the form of a reprimand and a transfer ‑ Email sent to senior managers expressing concerns with restructure ‑ Appellant found not to have acted inappropriately so as to amount to misconduct ‑ Finding of no misconduct that the decision should be adjusted ‑ Whether reinstatement impracticable ‑ Appeal upheld

Legislation : Industrial Relations Act 1979 (WA)

Health Services Act 2016 (WA)

WA Health System ‑ HSUWA ‑ PACTS Industrial Agreement 2020 

Result : Appeal upheld

Representation:

Appellant : Ms M Noble on her own behalf

Respondent : Mr C Cameron on behalf of the respondent

Case(s) referred to in reasons:

Blyth Chemicals Ltd v Bushnell [1933] HCA 8; (1933) 49 CLR 66

Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728; (2017) 97 WAIG 1525

Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198

Perkins v Grace Worldwide (Aust) Pty Ltd [1997] IRCA 15; (1997) 72 IR 186

Raxworthy v The Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266

Thavarasan v The Water Corporation [2006] WAIRC 04089; (2006) 86 WAIG 1434

Reasons for Decision

1         These are the unanimous reasons of the Public Service Appeal Board (Board).

2         The appellant, Ms Michelle Noble, is employed by the North Metropolitan Health Service (Health Service). She was appointed to the role of Director, Finance and Business Partnering, Sir Charles Gairdner Osborne Park Health Care Group (SCGOPHCG) in July 2018. The Executive Director, SCGOPHCG, who was, at relevant times, Ms Janet Zagari, was the position’s direct line manager.

3         On 8 July 2020, Ms Noble was formally notified that the Health Service would be centralising the Finance functions, which would result in Ms Noble’s position’s reporting lines changing so that it reported directly and only to the Health Service’s Chief Financial Officer (CFO).

4         On 9 July 2020 Ms Noble sent an email to the five Business Managers who reported directly to her. Her email related to the reporting line restructure. Her email became the catalyst for an allegation that Ms Noble had engaged in misconduct, a disciplinary process and ultimately the imposition of a penalty in the form of a reprimand and transfer to another position at level.

5         Ms Noble appeals the disciplinary action pursuant to s 80I(1) of the Industrial Relations Act 1979 (WA) (the Act), disputing both the findings of breach of discipline and the decision to impose the sanction of a transfer. The Board must decide whether it should adjust those matters.

Board’s jurisdiction and nature of the appeal

6         The appeal is brought under s 172 of the Health Services Act 2016 (WA) (HSA) and s 80I(1)(c) of the Act.

7         Section 172 of the HSA provides:

172. Certain decisions and findings may be appealed or referred

(1) In this section —

disciplinary decision or finding means —

(a) a decision made under section 159(1)(b) or (c); or

(b) a finding made in the exercise of a power under section 165(5)(a)(ii); or

(c) a decision made under section 147, 148 or 164 to suspend a government officer or other employee on partial pay or without pay; or

(d) a decision to take disciplinary action made under section 150(1), 163(3)(b) or 166(b); or (e) a decision to terminate the employment of a government officer or other employee under section 168(1).

(2) Subject to sections 118 and 173, an employee or former employee who —

(a) is, or was, a government officer; and

(b) is aggrieved by a disciplinary decision or finding made in respect of the government officer, may appeal against that decision or finding to the Industrial Commission constituted by a Public Service Appeal Board appointed under the Industrial Relations Act 1979 Part IIA Division 2.

…

8         The relevant provision of Part IIA – Division 2 of the Act is s 80I which is in the following terms:

80I. Board’s jurisdiction

(1) Subject to the Public Sector Management Act 1994 section 52, the Health Services Act 2016 section 118 and subsection (3) of this section, a Board has jurisdiction to hear and determine —

…

(c) an appeal by a government officer under the Health Services Act 2016 section 172 against a decision or finding referred to in subsection (1)(b) of that section;

…

and to adjust all such matters as are referred to in paragraphs (a), (b), (c) and (d).

…

9         Ms Noble is a government officer and the decision against which she appeals is one referred to in s 172(1)(b) of the HSA.

10      The appeal involves the review of the Health Service’s decision de novo. As such, the Board is to consider the appeal based on the evidence before it, not merely on the basis of whether the Health Service made the right decision available to it at the time. The Board has greater scope to substitute its own view for that of the Health Service. In the case of misconduct, it is for the employer to establish on the evidence that the misconduct occurred: Raxworthy v The Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266 and Thavarasan v The Water Corporation [2006] WAIRC 04089; (2006) 86 WAIG 1434.

11      The Health Service’s decision is not to be totally disregarded by the Board hearing and determining the matter. That the appeal involves a hearing de novo does not necessarily mean that the Board must re‑hear every aspect of the allegations afresh. What precisely the Board must consider in the proceedings ultimately depends upon the nature of the challenge to the decision under review: Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728; (2017) 97 WAIG 1525 at [26] and [29].

12      The key facts in this appeal are not in dispute. Ms Noble admits she authored and sent the 9 July 2020 email. The key area of dispute is whether, by sending the email, Ms Noble committed misconduct. The answer turns principally on the text of the email viewed in the relevant context.

The misconduct findings

13      The relevant misconduct findings against Ms Noble are set out in the Health Service’s letter to her dated 28 January 2022, although the finding of breach of discipline was made on 17 February 2022. The finding was:

…

2. In 2020, at Sir Charles Gairdner Hospital (SCGH), you committed a breach of discipline pursuant to section 161(c) of the Health Services Act 2016 in that you committed an act of misconduct.

Particulars

a) You are employed as the Director, Finance and Business Partnering, Sir Charles Gairdner Osborne Park Health Care Group (SCGOPHCG), North Metropolitan Health Service (NMHS).

b) In 2020, you sent an email to [SCGOPHCG Business Managers email address] titled ‘SCGOPHCG Finanace & Business Partnering – Change’.

c) The email was openly critical of the impending change to the structure and reporting lines for your position and business area.

d) You criticised the Executive Director, Business and Performance, NMHS, intention to communicate the changes to your department via email.

e) You claimed the impending change in reporting lines, ‘demonstrates disregard for our FBP [Finance and Business Partnering] team, our Divisions and Areas, and for us as people’.

f) You stated your intent to write to the Health Service Union, although not a member, to ‘express my concerns in relation to the approach to this change’.

g) You used the phrases ‘inherent discourtesy’ and ‘demonstrates disregard’ which portrayed the impending change in a negative way.

h) Your behaviour does not meet the expected standards of conduct for a NMHS employee in the workplace.

…

14      The penalty imposed by the 17 February 2022 letter was a reprimand and a transfer to another position. In proposing that penalty, the decision maker, Ms Tanya Adair notes:

• The content of the email evidences a serious error of judgment for a person in a senior managerial role in the organisation and I have significant concerns as to your ability to remain in such a senior role in the organisation.

• The content of your response to the allegation and proposed findings and actions, which focusses on the merits of the decision to change your reporting line but fails to acknowledge or appreciate the gravity of your conduct, and demonstrates a lack of insight into the inappropriateness of your conduct.

• The obvious lack of trust and dissatisfaction that you have with the Chief Financial Officer and Executive Director, B&P, tends to suggest that it would be impracticable for you to remain in a position that reports directly to the Chief Financial Officer, who then reports to the Executive Director, B&P.

Grounds of appeal

15      Ms Noble’s Notice of Appeal contends that the disciplinary action taken, in the form of removal from her substantive role of Director, Finance and Business Partnering, was made without consideration of the full context in which the email was sent, and was disproportionate to the seriousness of her conduct.

Evidence: context to the 9 July 2020 email

16      The following documents were tendered in the course of the appeal hearing, and considered by the Board:

(a) Email chain between Mr Alasdair Smollett and Ms Zagari between 13 May 2021 and 1 June 2021;

(b) NMHS Budgeting & Forecasting Internal Audit Draft Report April 2020;

(c) NMHS Budgeting & Forecasting Internal Audit Final Report August 2020;

(d) Minister for Health Employee Engagement Survey 2020 ‑ Finance & Business (Unit) Results Report;

(e) Ms Noble’s October 2020 Statement;

(f) Letter to Ms Noble headed ‘Allegations of Misconduct’ dated 23 February 2021;

(g) Letter to Ms Noble headed ‘Alleged Breach of Discipline ‑ Opportunity to Respond’ dated 5 August 2021;

(h) Ms Noble’s August 2021 Statement;

(i) Transcript of the interview between Mr Smollett and Ms Noble dated 28 October 2021;

(j) Letter to Ms Noble headed ‘Breach of Discipline ‑ Proposed Finding and Action’ dated 28 January 2022;

(k) Integrity Directorate Investigation Report ‑ Ms Noble

(l) Email to from Ms Noble to Mr Mike Cullen headed ‘RE: Letter ‑ Proposed Finding and Action’ dated 11 February 2022;

(m) Letter to Ms Noble headed ‘Breach of Discipline ‑ Finding and Action’ dated 17 February 2022;

(n) Department of Health Code of Conduct; and

(o) Letter (by email) to Ms Noble headed ‘RE: Notification of Change’, undated.

17      Ms Noble gave oral evidence at the hearing of the appeal. The Health Service cross‑examined Ms Noble but did not call any witnesses. Ms Noble’s version of events was largely uncontentious, and in relation to contentious matters, her evidence was not in any way undermined in cross‑examination. There is no reason for the Board not to accept Ms Noble’s version of the relevant events.

18      The position of Director, Finance and Business Partnering is classified as a Level G12 position under the WA Health System ‑ HSUWA ‑ PACTS Industrial Agreement 2020.

19      The position leads the Finance and Business Partnering team, a team of 20 people including five Business Managers reporting directly to the position. Their classification is Level G10. In turn, a number of Analysts report to the Business Managers. An administrative officer, and other officers or clerks also comprise of the Finance and Business Partnering team.

20      Ms Noble was responsible for budgeting activities, in which she was required to work with the CFO. Ms Noble described her job as having a ‘dotted line’ reporting structure to the CFO. Her evidence in this regard was not challenged.

21      The Health Service had, at some date prior to June 2020, engaged in a broad review of the structure of Finance Services. The details of that process were not before the Board. However, Ms Noble’s evidence was that a dispute with the Health Services Union of Western Australia (Union of Workers) (HSU) had arisen in the course of the restructure. That dispute related to the consultation process, or more accurately, the HSU’s concerns about deficiencies in the consultation process, and was the subject of an application to the Commission PSAC 18 of 2019.

22      Ms Noble became aware of PSAC 18 of 2019 in January 2020 because a result of that application was that a consultation liaison group was formed consisting of Executive Directors, the HSU and representatives of the Health Service’s Industrial Relations team. When Ms Janet Zagari was on leave, Ms Noble was asked to attend the consultation liaison group in her stead.

23      In June 2020, Ms Zagari informed Ms Noble that there was a proposal to centralise the finance functions across the Health Service’s divisions, and that Ms Noble’s reporting line would change. This was separate to the process the subject of the review discussed at par [21] of these reasons.

24      On 8 July 2020, Ms Noble was provided with a Notification of Change letter, signed by Ms Zagari, confirming the reporting line restructure.

25      The Notification of Change letter (Exhibit R2) advised that the reporting line for Ms Noble’s position would change from the Executive Director, SCGOPHCG to the Chief Financial Officer, North Metropolitan Health Service.

26      The Notification of Change letter also referred to an internal audit into the Health Service’s systems and processes for financial forecasting and budgeting (referred to as the Ernst & Young Review). It commences by reference to the audit as ‘facilitating review of the NHMS Finance Structure’. It goes on:

…

Arising from the review, a decision has been made to centralise the NMHS Finance structure reporting lines to form a single finance team that will enable the improvements required and increase value to the business…

The changes to the structure are designed to support the standardisation of financial systems and processes across the organisation and to enhance communication and knowledge sharing across the team.

…

27      Ms Noble has access to the April 2020 draft of the Ernst & Young Review prior to 8 July 2020. The review was finalised in August 2020. The finalised report contained substantial amendments to the April 2020 draft.

28      After formal notification was given to Ms Noble of the reporting line restructure, she sought, in accordance with an invitation contained in the notice, a meeting to discuss how the change would impact upon her. A meeting was arranged by Ms Zagari for 23 July 2020. It was attended by:

(a) Mr Tony Dolan ‑ Chief Executive;

(b) Ms Cynthia Seenikatty ‑ Area Director Workforce;

(c) Ms Noble; and

(d) Dr David Mountain, Ms Noble’s support person.

29      During the 23 July 2020 meeting Ms Noble expressed her concerns about the finance restructure. It is unnecessary to set out the detail of what was discussed at the meeting, except to say that Ms Noble expressed concerns around three themes: first, the absence of a justification for the change based on the Ernst & Young Review; second her concerns about the CFO’s leadership style and his behaviour towards her and others and third, the process of communication and implementation of the proposed change.

30      An outcome of the 23 July 2020 meeting was that a ‘grievance investigation process’ was commenced to investigate Ms Noble’s concerns about the CFO. Ms Noble was invited to participate in that investigation.

31      At the same time as the grievance investigation process commenced, Ms Noble was transferred to the position of Project Director within Procurement, Infrastructure and Contract Management, while the grievance investigation process was being conducted.

32      Ms Noble provided the investigator with a written statement dated October 2020 (October 2020 Statement). Her October 2020 Statement included, amongst other things, a copy of her email of 9 July 2020 and details of the circumstances in which she sent it. These details appear under the heading ‘Change in reporting Lines ‑ Communication of the Change’.

33      It is unclear why Ms Noble included these matters in her October 2020 Statement, which was to investigate concerns about the CFO’s conduct. However, this is what she said in her October 2020 Statement about the 9 July 2020 email:

…

793. On or around 6.00pm on Thursday 9 July 2020, Ms Janet Zagari came to my office to advise that Mr Jordan Kelly intended to send an email to NMHS Finance advising them of the change to the reporting line for Site Finance Directors.

794. I was aware that this would be a surprise to the SCGOPHCG FBP Team, and that they may have concerns in relation to this change and the impact to them.

795. I was also aware that although the change in reporting line was being communicated as only impacting two staff (being myself and the Acting Director Finance, WNHS/AMH), this had implications for all FBP staff who reported to me.

796. I asked Ms Zagari when Mr Kelly intended to send the email and advised Ms Zagari that I would like to call my team together to explain this to them in a meeting.

797. I felt that the Business Managers, as my direct reports, would be concerned by not hearing this personally, and that an email advising of this significant change was not the best approach to communicate this change.

798. I advised Ms Zagari that I could call a meeting of my team first thing tomorrow morning and ask that the team make themselves available for that meeting.

799. Ms Zagari was understanding of my request to advise my team in a meeting, rather than them receiving an email from Mr Kelly. I believe that following that discussion, Ms Zagari contacted Mr Kelly.

800. Ms Zagari came back to my office a short time later and advised that Mr Kelly would not delay his email to allow me the opportunity to meet and discuss this with the SCGOPHCG FBP Team.

801. In my view, there was no rationale, nor any organisational or operational impact if Mr Kelly were to delay sending the email until mid‑morning the following day, which was the timeframe I had requested. I had advised Ms Zagari that I could call a meeting of all available SCGOPHCG FBP staff for 9.00am the following morning.

802. I felt that this was an inconsiderate action, and one that was taken to demonstrate to me how Mr Kelly intended to behave towards myself and the SCGOPHCG FBP Team.

803. I was concerned Mr Kelly’s response to my request was a demonstration of what I would characterise as a heavy‑handed approach. Behaviour such as this from [the CFO] was one of the key concerns I had in relation to the proposed change in reporting line.

804. I sent an email to the FBP Business Managers at 1929 hrs 9 July 2020 [Document Ref: 20200709 E1929] advising that they would receive an email from Mr Kelly in relation to a change in reporting line.

…

34      At this point, we note that:

(a) the email was sent only to the five Business Managers who reported directly to Ms Noble;

(b) there is no evidence nor any suggestion that the email was distributed more widely; and

(c) there is no evidence nor any suggestion that anyone complained about the content of the email nor receiving the email.

The 9 July 2020 email

35      The 9 July 2020 email is reproduced in full below:

Good evening all,

I have been advised that NMHS intend to change my reporting line from the Executive Director SCGOPHCG to the NMHS CFO. The change to my reporting line unfortunately has ramifications for our entire SCGOPHCG Finance & Business Partnering Team.

Over the past few days, since being made aware that a letter advising of this change would be provided to me, I had been asking for the rationale for removing the entire Finance & Business Partnering function from the current reporting line to the Executive Director SCGOPHCG. A key concern I have is that the Executive Director and other members of SCGOPHCG Executive have accountability for SCGOPHCG's financial and operational performance, and the FBP team plays a critical role in supporting SCGOPHCG Executive and service areas in this accountability.

I had expected there would be consultation and explanation for this proposed change. However, there has been none. I have been advised that the intention is to consult on the implementation. There is an important distinction between consulting on an implementation and consulting on a change that fundamentally affects the accountability relationship between our team and our Executive. A consultation on an implementation is effectively presenting a fait accompli which, in my view is a disingenuous form of consultation. There is no consideration or rationale for this change, nor what the impact would be to our Group, to our stakeholders and to the areas we provide business partnering services to. There also appears to be a significant lack of understanding between business partnering finance professionals and group/corporate reporting at Area Health Service level. These are two very different disciplines, with very different skills and experience ‑ I know you all appreciate and understand the distinction between the expertise we bring to our service areas and a corporate reporting function; however, it appears that this important distinction has been disregarded by NMHS.

The letter advises that this change takes effect from 3 August 2020.

I am very sorry for springing this on you via email, but I was told late this afternoon that it is the NMHS Executive Director, Business & Performance's intention to send an email to the entire SCGOPHCG Finance Team today advising all SCGOPHCG Finance team members of this change. There is an inherent discourtesy and lack of regard in sending an email to a team to advise them of a change of this type, particularly at a time of year when we are all working incredibly hard to meet key deadlines, and it distressed me to think that the SCGOPHCG FBP leadership team would be advised of this change via an email from NMHS. However, despite me having expressed these concerns, I have just been advised that the NMHS Executive Director Business & Performance does not intend to delay sending his email to the SCGOPHCG Finance team, which does not give me an opportunity to have an FBP team meeting and advise the team in person.

I have concerns about this approach to communicating and understanding the impact and ramifications to our FBP team, together with many other concerns about this change. I have concerns about an organisation that does not understand or feel that even a token gesture to consultation and change processes is warranted. I believe that what has happened to date demonstrates disregard for our FBP team, our Divisions and Areas, and for us as people.

I have been advised that this change has been notified to the HSU and, although I am not a member of the HSU, it would be my intention to support any members of the Finance & Business Partnering Team who have any concerns. I will be writing to the HSU to express my intention to support my team and express my concerns in relation to the approach to this change.

I am uncertain what the next steps will be. However, out of respect and consideration for you all, I wanted to ensure that you heard this news from me. I am very sorry that I am not able to provide you with any answers about the rationale for the change, why this would not follow any form of genuine consultation and ‑ mostly ‑ I am very sorry that you are receiving this news via email; however, hopefully it is slightly better that you hear it from me, as I acknowledge and understand any concerns you may have.

I have asked that the SCGOPHCG Executive and other senior Divisional and Department staff with whom we work closely with, be offered the courtesy of expressing their views on this change, and I will continue to press for this.

I will give you a bit of time to digest this tomorrow morning and ‑ in the busyness that we are all in at the moment ‑ will find a moment for us to get together.

Other Contextual Matters: The Ernst & Young Review

36      Ms Noble’s evidence was to the effect that she was concerned about the proposed restructure, in part because the Notification of Change letter stated that the decision ‘arose from’ the Ernst & Young Review. Ms Noble met with Ernst & Young in the course of the review, and with Ms Zagari, made comments on a draft of the report in the course of May 2020. On her reading of the draft report, it did not recommend or indicate such a change to reporting lines. Indeed, she submitted that organisational restructure was not within the review’s scope.

37      Ms Noble’s evidence was that she was doubtful that centralising the reporting lines to the CFO would address the findings of the Ernest & Young Review, which were primarily deficiencies with Area Finance, and this was in her mind when she wrote the email.

38      The resolution of this matter does not require the Board to make any finding about whether the restructure decision had merit, or whether it was properly based on the Ernst & Young Review. However, the stated rationale for the restructure decision is one of the factors Ms Noble said was on her mind when she sent the email. We have had regard to the Ernst & Young Review April 2020 report with a view to whether it reveals anything that would mitigate Ms Noble’s actions in sending the email. It does not.

39      It may be that Ms Noble genuinely held concerns about the rationale for and merits of the reporting line restructure decision. However, if her concerns arose from her understanding of what the Ernst & Young Review did and did not recommend in relation to the structuring of finance operations, her concerns were misguided.

40      The objective of the Ernst & Young Review was to ‘…provide an assessment of the effectiveness of the [Health Service’s] budgeting and forecasting practices, including … cash‑flow…’. That objective included identifying improvement opportunities. The April 2020 draft report indicates that the review identified as issues, amongst others:

• Lack of standardisation in budgeting and forecasting practices across the organisation;

• Accountability for financial performance not being devolved to the appropriate levels;

…

• Strained working relationships and reduced levels of consultation and engagement across the business; and

…

41      The Ernst & Young Review does not identify any particular part of the business as deficient in these respects. It must be borne in mind that, at the time of the review, SCGOPHCG was one of several sites performing budgeting functions under a decentralised finance operating model. The Ernst & Young Review’s findings do not identify any particular sites or teams as the source of the issues. Rather, it makes generalised observations as to areas to improve governance and accountability.

42      In this regard, ‘… [i]nsufficient clarity of team roles and responsibilities…’ was clearly an important theme of the draft Ernst & Young Review report. It states, for example:

…

Through discussions with key stakeholders, we identified that the sites and BS&R interpret their budgeting and forecasting roles inconsistently. This often results in a lack of agreement and/or understanding of the key responsibilities of each team (e.g. who owns financial information and is responsible for the provision of certain information).

We also identified confusion and at time apparent overlap in the role individual Business and Performance teams take in budgeting and forecasting at NMHS…

43      The implication of these issues is identified as ‘…the risk that processes may not be performed consistently, efficiently and/or effectively…’ leading to a recommendation that the Health Service:

…

Consider introducing more formal communication/reporting lines through to the CFO to assist the CFO in discharging their accountabilities under the FMM, promote standardisation across NMHS and improve levels of collaboration. Increased formalisation could include adjustments to relevant Job Description Forms to formalise communication and other requirements and/or more formal organisational structure “dotted line” reporting through to the CFO.

…

44      Ms Noble emphasised that a ‘dotted line’ reporting structure between her position and the CFO already existed. We do not know whether that was the case for the other sites’ finance teams. Even if it was, the point of the recommendation is that ‘increased’ formality and clearer reporting lines should be established. The draft report’s reference to a dotted line reporting line is given as an example but is not prescriptive of what changes could be made to achieve closer communications, collaboration and accountability between the sites and the CFO. Indeed, if a ‘dotted line’ reporting structure already existed, then it was all the more reasonable to address this recommendation by introducing a direct, unbroken line reporting structure.

The Breach of Discipline Process

45      On 25 February 2021, Ms Noble was given a letter, dated 22 February 2021, which informed her that ‘a review of your complaint’ about the CFO’s conduct had been completed and the review reached a consensus view that a reasonable suspicion of misconduct by the CFO could not be formed.

46      The same letter also stated:

Evidence Relating to Your Conduct

During the course of this review, evidence was obtained which raised concerns regarding your conduct towards employees of NMHS. The MDAC was of the view that the information obtained during the review relating to your alleged conduct warrants a disciplinary investigation. I will provide further correspondence to you in relation to this in due course.

…

47      A second letter was given to Ms Noble on 25 February 2021, dated 23 February 2022. It informed Ms Noble that a disciplinary investigation would commence into her alleged conduct pursuant to s 162(a) of the HSA and that the specific allegations against her would be provided in due course.

48      In the meantime, Ms Zagari approached Ms Noble proposing that she take up an Executive role within SCGHOPH in the role of Project Director, Procurement, Infrastructure and Contract Management. She fulfilled this role as a secondment from her substantive role of Director, Finance Business Partnering.

49      On 5 August 2021, almost six months after Ms Noble was informed, in the most generalised manner possible, that a disciplinary investigation was being conducted, Ms Noble was finally provided with the details of two allegations of misconduct against her.

50      The reasons for the delay in progressing the process were not explored at the hearing of the appeal, and no evidence was provided about it. Bearing in mind that:

(a) it was Ms Noble that first brought her conduct in sending the emails the subject of the allegations to the attention of the Health Service’s Integrity division, and

(b) she did so in October 2020, and

(c) her evidence of October 2020 was virtually the only evidence that formed the basis of the allegations;

the hiatus provides a highly unflattering impression of the Health Service’s Integrity Directorate.

51      The first allegation, which is not the subject of this appeal, related to an email Ms Noble sent to Ms Zagari on 15 June 2020 in which she referred to the CFO in derogatory terms. The second allegation is set out under par [13] above of these reasons.

52      Ms Noble was invited to provide her response to the allegations. She provided a response, in the form of a written statement dated August 2021 (August 2021 Statement) (Exhibit A8).

53      In response to Allegation Two, Ms Noble stated that she did not deny sending the 9 July 2020 email. She provided context as to the events leading up to the email, consistent with the October 2020 Statement. She additionally, stated:

…

30. I recall either asking Ms Zagari, or Ms Zagari informing me, that Mr Kelly intended to send the email immediately, and I recall that both Ms Zagari and I had the impression that the email would be sent that night.

31. It was not uncommon for senior members of the FBP team, to read emails in the evening, and I felt concerned that they would be anxious being advised by an email, leading to a night of worry and no opportunity to ask questions of me ‑ as a known and trusted manager.

32. I recall asking Ms Zagari if she would contact Mr Kelly and ask him to delay the email, so that I could call an FBP Team meeting at 9.00am the following morning, to communicate this decision to my team.

33. I recall advising Ms Zagari that I would call the meeting for that time, and give whoever was available the opportunity to attend. Some team members may not have been available, and I recall advising Ms Zagari that I would just call the meeting for whoever was available. I recall saying I could have the meeting concluded by 10.00am, so that Mr Kelly could then send his email mid‑morning.

34. I recall specifically expressing the concern to Ms Zagari that the team did not deserve to hear this by email. I recall some discussion of the fact that we were very understaffed, the Business Managers were working long hours, that it was end of financial year ‑ a time when any Finance team is under considerable pressure, and more so at SCGOPHCG that year due to our understaffing. I recall saying words to the effect of “these are people, and they deserve to be treated as people and not hear this news via email”.

35. I recall Ms Zagari responding to me that my request sounded very reasonable, and I recall her returning to her office to telephone Mr Kelly.

36. A short time later, Ms Zagari returned to my office. Ms Zagari advised me that Mr Kelly would not agree to defer his email until mid‑morning.

37. I recall being disappointed by this, and I recall Ms Zagari’s demeanour as being what I would describe as apologetic. I recall being appreciative that Ms Zagari had considered my request reasonable and that she had approached Mr Kelly.

38. I recall during the discussion with Ms Zagari saying that I did not understand the harm in holding off until mid‑morning the following day, and I recall Ms Zagari being unable to answer that.

39. I recall advising Ms Zagari that I would communicate by email to my team. I recall asking Ms Zagari either if she wanted to be included in the email or if she wanted me to send her that email. Ms Zagari indicated that was not necessary, and I took this to be that she was comfortable that I would communicate with my team.

…

54      In her response to the allegations, Ms Noble stood by her description of the proposal to send an email to the team to advise them of the change as discourteous and lacking in regard, because:

76. I was disappointed by the lack of regard for a team that was significantly understaffed, and in the middle of end of financial year, a busy and stressful time for any Finance team and more so when the team is operating short‑staffed.

77. The two key elements that have not been set out in Allegation 2 are that it was end of financial year and that communicating a change of this nature via email to Level 10 Business Managers, who I would considered to be the senior FBP leadership team and treated as such, would not be a customary approach to communication of a significant change.

55      Ms Noble also referred to the fact that she had concerns that the Health Service had previously found itself party to an application to the Commission due to a dispute about a failure to consult in relation to changes, and that it was ‘about to repeat the missteps in their approach to the very next change process they were undertaking’.

56      She says she is not the only person who had or expressed those concerns, but to the best of her knowledge, is the only person facing misconduct allegations as a result of expressing the concerns. She referred in particular to the minutes of an Executive Committee meeting of 14 July 2020 which expressed concern on behalf of the Executive Committee in relation to the absence of a rationale for the change, and the lack of consultation in relation to it.

57      Finally of relevance, Ms Noble referred to the Minister for Health Employee Engagement 2020 Survey results as justifying her subjective concerns about the change to the reporting lines which would require her, and her team, to integrate centrally with the Health Service’s Finance team. Ms Noble noted that SCHOPHCG FBP team scored consistently higher than the Health Service’s Finance team on indicators of employee engagement, which, Ms Noble argued, demonstrated a significant difference in culture which would impact performance and relationships. Her comments culminated in the statement:

I was extremely concerned about subsuming a ‘safe’ and highly productive SCGOPHCG FBP team into the NMHS Finance team, given the behaviours I experienced and the Minister for Health Survey results.

Decision to take disciplinary action

58      The Investigation Report is Exhibit A11.

59      According to the Investigation Report:

(a) Mr Smollett, Senior Consultant, Investigation, Integrity Directorate, was appointed to conduct the investigation on 26 February 2021.

(b) Ms Noble responded to the allegations with a lengthy written statement on 19 August 2021.

(c) Ms Noble was interviewed by Mr Smollett and another person from the Integrity Directorate on 28 October 2021.

60      The transcript of the 28 October 2021 interview was in evidence before the Board (Exhibit A9). In the course of the interview, the investigator, Mr Smollett did not ask Ms Noble any questions about the allegations or her response. An example of the interactions typical of the interview is extracted below:

MN: I’m assuming that you will answer that question through the process of this investigation, though, if you felt that there was additional evidence needed in relation to any of the matters that I’ve raised. That you would ask me for that?

AS: As I say, this is your opportunity to provide the extra information that you want to be considered

MN: OK

AS: So that’s what it is.

MN: So I can take it that your response is that you don’t need any additional evidence from in relation to the matters that I put forward in my statement …

AS: As I’ve said …

MN: … or that if you did that …

AS: It’s your opportunity to …

MN: … that you would specifically ask me for that before relying on that assertions by others as evidence.

AS: But the risk of repeating Michelle, it’s, it’s your opportunity to provide information that you wish to be considered.

MN: Alright. Thank you.

…

MN: Yes, and that’s why I’m asking you at this point what additional evidence you require, because I think in my experience with going through the previous interview was that I wasn’t asked for supplementary information and that certain facts then came to be evidence.

…

MN: OK. Perhaps if you speak out if you raise concerns, if you seek to challenge poor processes and poor behaviour you are removed from your role.

That’s what … that is exactly what happened to me, and it is not indicative of a healthy or transparent organisation.

Do you accept that there is evidence that I made numerous endeavours to address issues within the North Metro Finance team, and why has that evidence been disregarded?

AS: I’ll refer you to my previous answer, Michelle.

MN If you don’t accept the information I provided as evidence, what additional evidence, what additional information would you feel necessary to accept the information I provided as being an accurate account of events?

AS: I’ll refer you to my previous answer.

…

MN: Since when did liaising with the Union become misconduct at North Metro?

So will you be interviewing Dr Mountain in relation to his views of the meeting of the 23rd of July 2020.

AS: I’ll just refer you to my previous answer, Michelle.

61      Procedural fairness issues have no role to play in this appeal, because the Board is deciding whether there was misconduct based on the evidence before it. However, we do consider it remarkable that the investigator conducted the interview in this way. The investigator asked virtually no substantive questions of Ms Noble. The interview cannot be described as an investigative process at all. It was a mere ‘going through the motions’, playing lip service to procedural fairness. Further, the investigator’s refusal to answer Ms Noble’s questions combined with his failure to put to her any of the inferences which would ultimately be drawn meant that Ms Noble remained ignorant of what considerations were regarded as relevant and irrelevant to the allegations, potentially denying Ms Noble a reasonable opportunity to be heard.

62      No one else was interviewed.

63      The documents which were examined for the investigation included:

(a) The minutes of the 23 July 2020 meeting;

(b) Ms Noble’s email to Ms Zagari of 15 June 2020;

(c) Ms Noble’s email to Business Managers of 9 July 2020;

(d) Letter from Mr Cullen, Director, Integrity Directorate to Ms Noble dated 22 February 2021;

(e) Ms Noble’s August 2021 Statement; and

(f) Transcript of the interview between Mr Smollett and Ms Noble dated 28 October 2021, referred to above at par [61] of these reasons.

64      Significantly, the only information provided to the investigation by Ms Zagari was a brief email answering (incorrectly) a question about the date of the email (Exhibit A1).

65      By letter dated 28 January 2022, Ms Adair, informed Ms Noble that she had been appointed decision maker in respect of the disciplinary process. In relation to the 9 July 2020 email allegation, the letter stated:

…

In relation to particular (g), I accept that the words in your email “inherent discourtesy” and “demonstrates disregard” were not directed towards portraying the impending change itself in a negative way, but rather were directed towards being critical of the Executive Director, Business and Performance (B&P), proposal to communicate the changes by email.

It is not clear to me whether you accept that your conduct in sending the email constituted behaviour that does not meet the expected standards of conduct for a NMHS employee in the workplace. From your response, I believe that you consider, in context, your email was not inappropriate. If that is your view, I am currently inclined to disagree.

I propose to find that in sending the email, your behaviour fell short of the expected standards of conduct for a NMHS employee in the workplace and constituted a breach of discipline. In coming to this view, I consider the email speaks for itself. Critical features of the email in this regard are:

• The email is sent to your subordinates.

• The email is not merely notifying the recipients of the decision to change your reporting line, rather, the email is openly and significantly critical of both the decision itself and the process leading to the decision.

• The email singles out the Executive Director, B&P, and is openly critical of his intention to inform the team by email of the decision to change reporting lines.

• The email is openly critical of the NMHS as an organisation.

It appears from your response to the allegation that you state your purpose in sending the email was to provide a more sensitive way to communicate to your team the change in reporting lines than that which had been proposed by the Executive Director, B&P.

However, I currently cannot accept that was your sole, or even primary, purpose. If that had been your sole or primary purpose, I would not expect the email to have contained the clear and significant criticisms of the decision and the decision‑making process.

To the contrary, I currently consider I can infer that your intention in sending the email was to garner support for your own views regarding the decision, and to create dissent amongst your subordinates in relation to the decision. Such conduct amounts to insubordination and has the capacity to bring NMHS and its executive management into disrepute.

I also currently consider that your conduct is aggravated by the fact that, as you state, you are “a senior leader and Executive member in a large hospital group”. In holding such a senior position, you ought to have known that sending such an email to your subordinates was inappropriate and would have the capacity to seriously undermine the decision made by your superiors, and seriously undermine the authority of your superiors.

I understand you suggest, in your response to the allegation, that you understood Ms Zagari was “comfortable” with you communicating the change to your team by email that evening.

I currently consider that you had no reasonable basis to believe Ms Zagari was “comfortable” with the terms of the email you actually sent, critical as it was of the decision, the decision‑making process, and NMHS more generally. At its highest, your response indicates Ms Zagari may have had no concern with you merely informing your team of the decision to change your reporting line, but the explanation that you have set out in your response does not provide a basis to believe that Ms Zagari was “comfortable” with you sending an email in the terms that you actually sent.

Having read your response to the allegation I understand that you continue to be significantly dissatisfied with the decision to change your reporting line and the rationale behind that decision. I do not consider those matters are relevant to the question as to whether you engaged in a breach of discipline, and if so, what penalty is appropriate for your conduct.

…

66      On about 3 May 2022, the Health Service implemented the penalty by transferring Ms Noble from her substantive role of Director, Finance and Business Partnering to the role of Project Director within Procurement, Infrastructure and Contract Management.

Did Ms Noble commit a breach of discipline by sending the 9 July 2020 email?

67      Section 161 of the HSA provides that the following conduct constitutes a beach of discipline:

161. What is a breach of discipline

An employee commits a breach of discipline if the employee —

(a) disobeys or disregards a lawful order; or

(b) contravenes —

(i) any provision of this Act applicable to that employee; or

(ii) any public sector standard or code of ethics; or

(iii) a policy framework;

or

(c) commits an act of misconduct; or

(d) is negligent or careless in the performance of the employee’s functions; or

(e) commits an act of victimisation within the meaning of the Public Interest Disclosure Act 2003 section 15.

68      ‘Misconduct’ is a general term used for a wide spectrum of unacceptable behaviour, including behaviour that is unlawful, inappropriate, improper or unreasonable. Whether there is misconduct, and the degree that will justify disciplinary action, are questions of fact: Blyth Chemicals Ltd v Bushnell [1933] HCA 8; (1933) 49 CLR 66 citing Clouston & Co v Corry (1906) AC 122.

69      Ordinarily, an employer’s policies and Codes of Conduct will set out the expected standards of workplace behaviours.

70      The Health Service points to the following provisions of the Code of Conduct (Exhibit R1) which it says Ms Noble breached by sending the 9 July 2020 email:

…

Principles of Conduct

The WA health system CORE values underpin the Principles of Conduct. Staff must comply with the Principles of Conduct.

The Principles of Conduct are:

….

3. Promote a positive work environment

Staff must:

3.1. Collaborate and treat each other in a way that promotes harmonious and productive working relationships.

3.2. Treat each other, patients, clients and members of the public with courtesy and respect.

3.3. Not bully or harass, or support colleagues to bully or harass, each other, patients, clients or members of the public.

3.4. Take reasonable care to ensure their own safety and that of others in the workplace.

3.5. Not discriminate against each other, patients, clients or members of the public on the basis of age, breastfeeding, family responsibility, family status, gender history, impairment, marital status, political conviction, pregnancy, religious conviction, race, sex or sexual orientation.

3.6. Familiarise themselves and act in accordance with the Equal Opportunity, Discrimination and Harassment Policy.

71      The CORE Values referred to as underpinning the above Principles of Conduct state:

…

The WA health system CORE values are:

1. Collaboration

2. Openness

3. Respect

4. Empowerment.

Collaboration

• We value the contribution of our Staff, who work together as a cohesive team to deliver an excellent level of care to all Western Australians.

• Our teams are strong and successful because we collaborate and always seek ways to improve.

• Our leaders are role models of our CORE values and trust their teams.

Openness

• We display confidence and cooperation through open and honest communication.

• We communicate clearly and with integrity.

• Our performance is open to public scrutiny and we welcome feedback to perform better.

• We value open communication and encourage those around us to voice their ideas as well as their concerns.

Respect

• We treat each other, patients, clients and members of the public with respect, compassion and fairness.

• We have zero tolerance for bullying, harassment and discrimination.

Empowerment

• We encourage and support local decision making and accept responsibility and accountability.

• We encourage and recognise outstanding performance and innovation.

• We are all responsible for workplace culture and performance.

• We empower everyone to make a difference and strive to improve our workplace culture and performance.

• We provide high quality, accessible and safe health care services to all Western Australians.

72      Read together with the CORE Values, the Principles of Conduct, which require staff to promote harmonious and productive working relationships, cannot equate to a blanket ban on criticism of decisions, the organisation, or individuals. Indeed, the Principles of Conduct, read in light of the CORE Values, encourage employees to voice concerns, and provide open and honest feedback for the purpose of improving performance. Statements that are critical of behaviours, performance and decisions of the organisation may be misconduct if they are unfair, disrespectful or, damage the workplace culture or performance.

73      The Health Service says that Ms Zagari was not aware of the content of the email, and that it is reasonable to infer that Ms Zagari would not have approved of the content had she been made aware. We disagree. Ms Noble offered to send Ms Zagari a copy of the email before she sent it. Ms Zagari declined that offer. She did so knowing the depth of Ms Noble’s concerns about the reporting line restructure, her views of the CFO (for instance, she had earlier received Ms Noble’s email which is the subject of the first allegation), and her concerns about the means by which the structure change was proposed to be communicated to her team. The more reasonable inference is that Ms Zagari knew that Ms Noble’s email would refer to those concerns.

74      The decision maker found the email was ‘openly and significantly’ critical of the reporting line restructure itself.

75      The parts of the 9 July 2020 email which concern the merits of the reporting line restructure are the bland and unspecific statements:

…unfortunately has ramifications for our entire … [t]eam

…There is no consideration or rationale for this change, nor what the impact would be…

…There also appears to be a significant lack of understanding … [of the] two very different disciplines … this important distinction has been disregarded by NMHS…

76      We cannot accept that expressions of concern about a management decision in these terms can be misconduct. In reality, decisions like the reporting line restructure decision are invariably underpinned by competing considerations and tensions. They rarely involve all relevant considerations being stacked on the side of the decision’s merit. To state that there are potential negative ramifications of such a decision is doing no more than stating the obvious.

77      When referring to ‘discourteous’ and ‘disregard’, the email is clearly critical of the process by which the decision was to be communicated to staff, and the consultation process. Indeed, the whole purpose of sending the email was to remedy what Ms Noble considered were problems in the communication process, to the extent she could.

78      Ms Noble’s email was sent only to the five Business Managers that report to her. The change email from Mr Kelly was to be sent to them, and the teams of staff who report to them. Without having first received Ms Noble’s email, the Business Managers would have received notification of the change at the same time, and by the same means, as their direct reports. Ms Noble wanted to ensure that they were pre‑warned, including that they were aware that the process itself might be the source of queries and concerns from their teams.

79      In this context, we consider that by conveying criticism of the process and concerns about the change to her Business Managers, Ms Noble was not acting inappropriately so as to amount to misconduct. In this regard, it is significant that the expression of criticism is in terms that are slight and benign, perhaps even genteel. The email does not seek to undermine any person, but rather is aimed primarily at the process of communicating and implementing the decision.

80      The Health Service submits that the language used in the email was critical of Mr Kelly (who was identifiable by his title) and the Health Service. Ms Noble agrees that her email was critical of the proposal that the entire finance department be advised of the change by email. It was critical because it described that course as ‘inherently discourteous’ and as demonstrating disregard for people.

81      To the extent that the email conveyed criticism, it might constitute misconduct if it was widely circulated. But in this instance, it was made to five Business Managers: members of Ms Noble’s senior management team: senior, experienced and professional individuals. Managers at this level can be expected to be frank with one another. It is difficult for managers to retain authenticity and credibility without being frank and open. To the extent that the email is critical of the means by which the change is to be communicated, it is, in our view, consistent with the frank and open communications that might ordinarily be expected amongst a small, close group of senior managers.

82      Ultimately, the tone and content of the 9 July 2020 email, in the context in which it was sent, does not tend to undermine or damage the workplace culture or its performance. It is more accurate to describe it as respectful, perhaps even fair criticism and expression of concerns.

83      We are invited to infer that Ms Noble sent the email to garner support for her views as to the merits of the reporting line restructure decision. We do not consider that inference is reasonably open.

84      Ms Noble explained the purpose of sending the email. That purpose is plausible: it was to ensure the managers in her team had notice of the change before a broadcast email was sent, to ensure they heard it from her as their manager, and that they could have confidence that she, as their manager, would support them in seeking meaningful consultation in relation to the change or if they had concerns. The email was sent to maintain cohesiveness and engagement in her team. There is nothing implausible about this explanation. It is consistent with the text of the email and the context in which it was sent. Therefore, the Board declines to draw the inference that Ms Noble’s purpose was improper.

85      Finally, the Health Service said that the email constitutes misconduct because Ms Noble expresses an intention to write to the HSU to express her concerns regarding the organisation’s approach to change.

86      Ms Noble was not a member of the HSU as at 9 July 2020. There is no suggestion that in her role as Finance Director, she had authority to represent the Health Service in communications with the HSU or for the purpose of consultation in relation to this particular change. It is one thing for a manager to support their team members’ exercise of rights of freedom of association. However, Ms Noble has gone beyond simply stating an intention to support the team in this way. Nor has she merely stated that she would cooperate with the HSU if the HSU sought to consult with her. Rather, she indicated that she would, ‘express her concerns’ about the Health Service’s processes to the HSU without prompting from any other source.

87      This was an error of judgment on Ms Noble’s part. Had Ms Noble done what she said she would do, she may have been acting inconsistently with her duties to the Health Service.

88      Ms Noble was not disciplined for communicating with the HSU, though. She was disciplined for the content of the 9 July 2020 email. The email does not say what Ms Noble intended to say to the HSU about the process. Ms Noble was not asked during the investigation what she meant when she said that she would ‘express concern’.

89      What is meant by ‘expressing concern’ is utterly vague. It reasonably implies that Ms Noble will be critical of the process, but that might be anything from a statement of regret as to timing, to, at the other extreme, a broad allegation that the Health Service acted in an illegal manner in giving effect to the change.

90      The fact Ms Noble made the statement in her email about expressing concern to the HSU simply reinforces the message that the email generally conveyed that she was disappointed with the process that the Health Service had undertaken and that she disagreed with it. It added emphasis to the email. The recipients would have been left in no doubt that Ms Noble disagreed with the Health Service’s approach to consultation.

91      Accordingly, even this statement in the email ultimately does not meet the degree of seriousness required to be characterised as misconduct.

92      For these reasons, we consider that the Health Service was wrong to conclude that Ms Noble had committed misconduct by sending the 9 July 2020 email to the Business Managers. We would therefore set aside the misconduct finding.

Remedy: Should the decision be adjusted?

93      It follows from our finding of no misconduct that the decision should be adjusted. The Health Service argued that the Board should decline to order reinstatement of Ms Noble to her Finance Director role because it reports to the CFO and that position is currently filled by the same individual who was the subject of Ms Noble’s complaints. The Health Service submits that it is untenable to return Ms Noble to a role reporting to the CFO.

94      The Health Service bears the onus of establishing that reinstatement is impracticable: Harvey at [193]‑[194], citing Public Transport Authority of Western Australia v The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch [2016] WAIRC 00236; (2016) 96 WAIG 408.

95      Ms Noble clearly has strong adverse views about the CFO. This is succinctly demonstrated by the email she sent to her line manager on 15 June 2020 in which she described the CFO in brief but strong derogatory terms. On the opposite end of the conciseness scale, Ms Noble’s October 2020 Statement details a litany of concerns about the CFO arising from events from August 2019 onwards. The Statement runs to 123 pages, 830 paragraphs and has 123 annexures.

96      Ms Noble interacted with the CFO in her role as Finance Director before the restructure for the period from July 2018 to August 2020.She had a ‘dotted line’ reporting structure to the CFO.

97      In her October 2020 Statement (Exhibit A5), Ms Noble said that the reason for her expressing her concerns about the CFO’s behaviour was (emphasis added):

…I believed that the escalation of this behaviour would have an increasingly negative impact on me, personally and professionally, and also on the financial affairs of SCGOPHCG.

…

...I was concerned that with the change in reporting line, [the CFO’s] behaviour would escalate and he would have greater opportunity to target me…

…

…I was concerned that once I was directly ‘under his control’ I would be subjected to worse behaviour than that I had already experienced to date.

98      We note that these statements are an expression of what Ms Noble expected may happen if the CFO’s described behaviour escalated, and if there was no intervention to prevent this from happening. The point of her documenting her complaints was so that an escalation could be prevented.

99      Ms Noble’s Statement generally describes her interactions with the CFO, in terms such as ‘unpleasant’, ‘professionally embarrassed’, ‘concerned’, ‘conflicted’ and ‘extremely frustrated’.

100   Describing the circumstances leading to her sending the 15 June 2020 email, Ms Noble says the CFO:

was undertaking what I described as a ‘sustained attack’ on me, which was significantly impacting my workload and was causing me distress: par 432 of the October 2020 Statement

101   In two other places she describes adverse effects she attributes to the CFO’s behaviour:

detrimental to an effective working relationship between the most senior Finance staff in each of the groups within NMHS, and caused further deterioration to the overall finance function across NMHS: par 464 of the October 2020 Statement; and

was generally difficult and unreasonable, and this impacted my work and the work of the SCGOPHCG FBP Team: par 701 of the October 2020 Statement.

102   These generalised statements were not elaborated upon or explored during the hearing. We do not know what detrimental impacts are referred to, nor their severity.

103   In cross‑examination Ms Noble was asked if she agreed that the CFO’s behaviour was ‘revolting’. She agreed but explained this was because she considered he had been untruthful. She maintained that she could not condone his behaviour. She also agreed that she had experienced distress and feeling beaten down.

104   When asked how she would, in such circumstances, be able to return to work productively while reporting to the CFO, her response was ‘I would hope [that the environment] has changed’. She said it would be difficult for her, but that she would ‘just have to live with it.’ Noting that it would be far more difficult for her to lose her job ‘than putting up with [the CFO’s] nonsense’. She identified the main source of the difficulty in returning to the role as being the passage of time that has passed since she last performed it.

105   There is no evidence before the Board to indicate that the CFO is aware of the contents of Ms Noble’s email to Ms Zagari, or the contents of her October 2020 Statement. The Board was informed that the grievance investigation did not result in misconduct allegations being made against the CFO.

106   While Ms Noble was clearly unhappy about her relationship with the CFO, there is no evidence that it was preventing her from performing her duties effectively, nor that it was impacting the CFO or finance functions in any way.

107   The Health Service did not call evidence from the CFO nor any other witness to give evidence of how Ms Noble’s return to the Finance Director role would impact operations, relationships or the work environment generally.

108   It would be naïve for the Board to assume that a resumed relationship between the CFO and Ms Noble will be all rosy. Knowing that there will be difficulties between Ms Noble and the CFO, is not a sufficient reason to decline to order reinstatement. The key question is whether trust can be restored, such as to enable operations to viably continue: Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 at [27] and Perkins v Grace Worldwide (Aust) Pty Ltd [1997] IRCA 15; (1997) 72 IR 186 at 191.

109   Having acknowledged that restoring trust would be difficult, Ms Noble also noted that she had previously worked with the CFO in a ‘dotted line’ reporting structure, without any adverse impact on operations. She is determined to continue to do so.

110   We consider it reasonable to expect that both Ms Noble and the CFO, as experienced professionals and senior managers, will be able to find a way to ensure any personal conflicts do not interfere with the efficient and effective execution of their duties to the Health Service.

111   The Health Service has not established that reinstatement is impracticable.

112   We note that the Health Service’s letter containing notice of the disciplinary action does not specify the role from which Ms Noble is being transferred. The Board understands that at the time Ms Noble was given the notice, she was performing the role of Project Director within Procurement, Infrastructure and Contract Management, but on a temporary, secondment basis. Her substantive role remained the role of Finance Director. The orders the Board will make are therefore intended to have the effect, upon implementation, that there be no impediment, arising from disciplinary action to Ms Noble returning to the role of Finance Director at the end of the secondment.

113   Accordingly, the Board orders:

(a) That the finding of misconduct in relation to Allegation Two be quashed; and

(b) That the decision to take disciplinary action in the form of a reprimand and transfer to an alternative position in relation to Allegation Two be quashed.