Amanda Torrisi v Mareeba Shire Job Training Association Incorporated T/As Quality Innovation Training and Employment [Q.I.T.E]

[2013] FWC 9942

[2013] FWC 9942

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amanda Torrisi
v
Mareeba Shire Job Training Association Incorporated T/AS Quality Innovation Training and Employment [Q.I.T.E.]
(U2013/11762)

COMMISSIONER SIMPSON BRISBANE, 24 DECEMBER 2013

Application for relief from unfair dismissal - arbitration.

[1] An application was filed by Amanda Torrisi on 22 July 2013 for an unfair dismissal remedy against Mareeba Shire Job Training Association trading as Quality Innovative Training and Employment (QITE).

[2] The matter was unable to be resolved through conciliation and directions were issued for the filing of statements and submissions. The matter was listed for hearing at the Mareeba Court House on Wednesday 18 December 2013.

[3] Ms Torrisi commenced employment with QITE on 7 August 2012 as a casual Finance Officer. Ms Torrisi at this time was working 2 to 3 days per week as workload demanded.  1

[4] Ms Torrisi was terminated on 1 July 2013 with one week paid in lieu of notice. Ms Torrisi was advised of her termination through correspondence dated 1 July 2013 under the signatures of Mr Peter Apel the Vice Chairman of QITE, and Ms Katrina Spies the Chief Executive Officer of QITE.

[5] Ms Torrisi provided a written statement/submission for her own case  2 and QITE provided statements from Ms Katrina Spies, Chief Executive Officer of QITE,3 Mr Rodney Kilpatrick, formerly employed as a Corporate Services Support Officer,4 Ms Raewyn Kiro, the Manager - Office of the CEO5 and Ms Jillian Trout, an Executive Officer of QITE. 6

[6] For reasons that I will elaborate on later the correspondence terminating Ms Torrisi’s employment addressed both a range of complaints Ms Torrisi had raised with the Respondent, as well as allegations of serious misconduct raised by Ms Spies against Ms Torrisi in the course of a meeting between Ms Spies, Ms Kiro and Ms Torrisi on 15 May 2013. The allegations of misconduct led to a decision being take by Ms Spies to suspend Ms Torrisi on full pay with immediate effect on 15 May 2013.

Offer of Permanent Part-Time Employment and Bank Loan

[7] Ms Trout gave evidence that following the completion of a probationary period Ms Torrisi was offered permanent part time employment which she accepted.  7 Ms Trout said a copy of a Job Description dated 29 November 2013 was prepared8 and offered to her. The Job Description described the position as Administration Officer Pay Point 4 under the Labour Market Assistance Industry Award 2010. It described the specified hours of work as “every second Monday (starting 10th Dec) from 8.15 to 4pm with 45 minutes for lunch. Every Tuesday, Wednesday and Thursday 8.15am to 4pm with 45 minutes for lunch.” The Job Description said the position reported to the Executive Officer who was Ms Trout.

[8] Ms Trout gave uncontested evidence that following Ms Torrisi accepting the proposal of a permanent part time position in late November 2012 Ms Torrisi subsequently asked that Ms Trout change her job description back to that of a casual in order to provide a higher income figure to support a bank loan application. Ms Trout’s evidence was that Ms Torrisi said that she would want to be returned to a permanent part time position once the loan was approved. An exchange of a series of emails between Ms Trout and Ms Torrisi regarding this request was attached to the statement of Ms Trout. 9

[9] It is apparent from this material that Ms Torrisi was quite concerned about the change to her employment status impacting on the bank loan application and the tone of Ms Torrisi’s emails indicates she was very anxious about the issue. Ms Trout’s evidence was that following these emails she contacted Ms Torrisi and met with her on 5 December 2012 to discuss the request and in the course of that discussion Ms Torrisi advised her that she was having a difficult time personally with some family issues. Ms Trout said she sympathised with Ms Torrisi but explained that QITE could not change her employment status purely for the purpose of a bank loan. Ms Trout said Ms Torrisi withdrew her request to be casual and elected to remain permanent part time.

[10] Ms Trout said that she specifically recalled Ms Torrisi telling her the income level that she wanted to see identified in her Job Description to support her bank loan application and Ms Trout said she explained that she could not honestly state the figure that Ms Torrisi was asking for. 10

[11] Ms Trout said that Ms Torrisi was confrontational and abrupt during the discussion and later that day after the meeting Ms Trout said she received an email from Ms Torrisi where she apologised for the way she had spoken. The email 11 read as follows:

“Hi Jillian,

At lunch I thought about the way I communicate and come across and I think I should apologise for being aggressive. I am sorry. I don’t want to have a strained working relationship with you or anyone. In future I will think through things before I shoot off an email or pipe up with past situations. It’s no excuse but being so damn stressed has made me act out of desperation and be rude. I can tell you one thing though and that is that I am honest and I don’t lie and I will do this position as best as possible. If the bank knocks us back then so be it. I can’t do anymore and freaking out at everyone isn’t going to make the situation better.

Amanda”

[12] This is important evidence as it is in Ms Torrisi’s own words and provides some insight into the position Ms Torrisi saw herself in at the end of 2012. The email also provides some background to subsequent events that ultimately led to Ms Torrisi’s termination by the middle of the following year.

Reduction in Labour Hire Workforce

[13] It is uncontested evidence that during the employment of Ms Torrisi the labour hire workforce supported by QITE was reduced from about 50 to less than 20. Given the nature of the work performed by Ms Torrisi in the finance department directly in connection with the labour hire workforce it is common sense to expect that this reduction would cause a consequential reduction in Ms Torrisi’s own workload.

February 2013

[14] Ms Trout gave evidence that after the events described above she received some informal complaints from other staff members that Ms Torrisi seemed to spend a lot of her work time on her mobile phone making personal calls. Ms Trout said she did not raise that issue specifically with Ms Torrisi at that stage. 12

[15] Ms Trout said that in early February she was approached by Karla Buchgraber and Natasha Taylor (the other two workers in the finance office) and asked if she could speak to Ms Torrisi about her mobile phone use. Ms Trout said the two employees complained the calls seemed personal and sounded like arguments and it was very hard to work while that was going on. Ms Trout said she had an informal discussion with Ms Torrisi about this. Ms Trout said about two weeks later the two employees again complained about Ms Torrisi saying the situation had if anything got worse. 13

Formal Performance Review

[16] Ms Trout said around this time she became aware of another problem concerning Ms Torrisi’s work in approving payments without purchase orders.  14 Ms Trout said she had a formal performance interview with Ms Torissi concerning these two issues on 19 February 2013. Ms Trout said at the meeting Ms Torrisi denied her mobile phone use was excessive and denied the invoice errors were hers. Ms Trout gave evidence as to the reasons that she did not accept the denial of Ms Torrisi concerning the invoices or her claim that she had never been shown what to do based on her understanding concerning coaching Ms Torrisi had received and the work she had done in the area over some time. Ms Trout said at the conclusion of the meeting she told Ms Torrisi that all future fuel docket work would be handed over to another employee, and also requested a follow up meeting on 27 February to undertake her 6 monthly review. 15

[17] Ms Trout gave evidence that she was told after this meeting Ms Torrisi went back to the finance room and “gave her co-workers a blast about making complaints about her.” Ms Trout said that Ms Torrisi then came back to her and said that she wanted another meeting with all the other staff included and that it should happen that day. Emails concerning this issue were attached to the statement of Ms Trout.  16

[18] Ms Trout said she wanted to call the requested meeting as soon as possible. It was arranged for 12.30 that day but changed to 2.30 on the request of Ms Torrisi. Ms Torrisi sent another email to Ms Trout at 1.02pm saying she wanted someone else to sit in on the meeting but Ms Trout said that she did not see the email before the meeting at 2.30pm and when the meeting started Ms Torrisi did not make mention of it. I accept Ms Trout’s explanation concerning this issue as being plausible in the circumstances.

[19] Ms Trout said that at this meeting Ms Torrisi spoke at length about being treated unfairly. Ms Trout gave evidence that when another employee Natasha Taylor made a comment to Ms Torrisi about being careful with her quick reactions to comments and gave an example concerning Facebook, Ms Torrisi became very angry and aggressive. Ms Trout said she realised at that point the meeting was unproductive and toxic and shut the meeting down.  17

[20] Ms Trout said she held the meeting with Ms Torrisi for her performance review on 27 February. Ms Trout said she went through all of the issues at length and in particular the significant downturn in the amount of labour hire work and that it would be necessary to reduce Ms Torrisi’s working hours to reflect the new reality of her workload. Ms Trout provided with her evidence the paperwork from this meeting. 18 The performance review was also critical of aspects of Ms Torrisi’s performance. The next day Ms Torrisi lodged a complaint to the CEO Ms Spies that Ms Trout was bullying her amongst a range of other issues.

Easter Pay Run Error

[21] Ms Trout said that in late March of early April she became aware of a big error made by Ms Torrisi in the processing of labour hire wages which affected the Easter pay run causing workers not to get paid over Easter. Ms Trout said Ms Torrisi phoned her on Good Friday when she was away and Ms Trout returned to work from her family break on Easter Saturday to fix the problem which she claimed caused a great deal of upset with labour hire workers.  19

Vacancy for Employment Consultant

[22] Ms Trout said that after Easter a vacancy for an Employment Consultant position came up and Ms Torrisi expressed an interest. Ms Trout said Ms Torrisi was short listed. Ms Trout said it was standard practice for her to sit on interviews. She said on the day of the interview Belinda Verheesen the site Manager who was also to be on the panel was called away because her child was unwell and other staff were asked to sit on the interviews. Ms Trout said a second round of interviews was conducted by Ms Versheesen who subsequently made the decision to appoint another applicant to the vacancy. This evidence was corroborated by other evidence in the course of the hearing.

Complaints on 28 February

[23] The complaints made by Ms Torrisi on 28 February included the following statements;

“I have been left with no choice but to compile a report on my experience of persistent and ongoing bullying at QITE. I have been intimidated, belittled, humiliated on personal characteristics in front of co-workers, unwarranted and invalid criticism, training withheld & tasks been removed from my workload. This deliberate removal of my original tasks has resulted in less days being available for me to work at QITE and this is very detrimental. I signed a JD working 4 days one week and 3 days the next and I have now been reduced down to 2 days per week and I am afraid every day when I walk into work that I will have more hours removed from me because of not being ‘liked’.

I will list dates and experiences below as evidence of what the repeated and ongoing treatment I have been subjected to starting from the most recent. I strongly believe that there is evidence that mistakes have been fabricated as an attempt to make out I’ve made errors in my role as Finance Officer for an excuse to have me terminated.”

[24] I will not repeat all of the matters raised in the complaint on 28 February or all of the evidence concerning those complaints and how they were dealt with by Ms Spies and Ms Kiro, and ultimately also Mr Apel. Ms Spies gave evidence that the complaints were referred to Ms Kiro and Ms Kiro gave evidence concerning her handling of the complaints including meetings with Ms Torrisi concerning them and her investigations of them. The termination letter of 1 July 2013 advised that after consideration of the relevant evidence, it was determined in relation to the complaints received on 28 February 2013 that the information provided did not substantiate any “persistent and ongoing bullying at QITE” and the actions of management staff identified were reasonable and appropriate in the performance of management duties. Further it was found there was no evidence to substantiate the allegations of sabotage of Ms Torrisi’s work.

[25] On having heard all of the evidence and submissions regarding the complaints made on 28 February I am satisfied that the findings of the Respondent in this regard were reasonable given the lack of evidence provided by Ms Torrisi to substantiate the claims, and the investigations undertaken into the claims, including by Ms Kiro as set out in her evidence, and the evidence provided particularly by Ms Trout both in her statement and orally which provided a plausible basis to explain the various actions taken by management at the time, and for QITE to be satisfied the complaints were not made out.

Complaints on 15 May 2013

[26] Attached to the material provided by Ms Torrisi 20 are a series of emails from 17 April 2013 to the morning of 15 May 2013 which provide some background to attempts being pursued by Ms Torrisi to firstly apply for the Employment Consultant job (in which her application was unsuccessful) and also to undertake a training course in the area. An email from Ms Trout to Ms Torrisi at 9.25am on 15 May includes an explanation that QITE pays the cost of a study course relevant for the role of Employee Consultants to employees who have completed probation in the role and went on to say “..so I am not sure if you wish to pay for this study yourself.” The same email from Ms Trout also requested that Ms Torrisi advise QITE if she is required to leave work (arising out of circumstances where Ms Torrisi had not long before become unwell at work and had to leave urgently).

[27] Later on the same day at 11.01am Ms Torrisi sent an email to Ms Trout, and sent a copy to Ms Spies headed ‘Extra Work’ which said as follows:

“Hi Jillian,

Is there any good reason why I am unable to job share Melisa Butcher’s position in PPS? She is $240 worse off per fortnight now as she has to pay after school care for her children. I am struggling financially and require more work. You’ve got employees forced into fulltime employment who don’t want full time employment and you have removed work from me reducing my hours when I desperately require more work? Why are you doing this? I’ve done everything to gain experience in other roles to which you block every suggestion. I’ve asked to go on casual wage and remain permanent part-time, same as Keely’s setup to which you decline. I have always been accurate with my work and I just don’t understand why you are making my life hard? What do you want me to do as I know if I was onside with you then I would not be in this situation.

Amanda.”

[28] I am satisfied from the evidence contrary to Ms Torrisi’s assertions, the reduction in her permanent part-time hours of work in 2013 were driven by the reduction in available work, not because she was the subject of bullying.

Accessing of Confidential Information

[29] A copy of Ms Torrisi’s email of 15 May was attached to the statement of Ms Spies. 21 Ms Spies said that there were a number of statements in this email which did not make sense to her when she received it. Ms Spies said that she could not see that Ms Torrisi’s duties required her to have access to the staff employment information that she was discussing in the email, and she was concerned that Ms Torrisi may have inappropriately accessed confidential employee information. Ms Spies said she spoke to Rodney Kilpatrick, the senior employee in the finance department and he informed her that Ms Torrisi would not have had access to that information in the course of her normal duties.

[30] Ms Spies said it was of concern to her that Ms Torrisi had acted improperly and accessed confidential information without authorisation or legitimate reason, and that it was of concern to possibly have a dissatisfied employee in a position where she had access to a vast amount of information. Ms Spies prepared a “stand down” letter and asked Ms Torrisi to meet her with Ms Kiro present.

[31] There was a considerable focus in statements, submissions and oral evidence on whether Ms Torrisi would have known from documentation otherwise available to her in her role in the finance department, the information pertaining to Ms Keely Trouts employment status referred to in the email of 15 May. It was put for QITE that she could have only known this information from accessing a MYOB Card which it was said she had no cause to do, and by doing so acted inappropriately.

Allegation regarding $10,000

[32] Ms Spies said that after she had heard the explanation from Ms Torrisi concerning how she came to know about the information contained in the email Ms Spies said she decided that Ms Torrisi may have acted improperly and explained to her that she would be suspended whilst it was investigated and she would receive normal pay and proceeded to hand her the stand down letter.

[33] Ms Spies said that she asked Ms Torrisi to clear out her desk, and that Ms Spies and Ms Kiro then walked with her while she was leaving. Ms Spies said at this time Ms Torrisi said words to the effect “just so you know I’ll be taking this further also”. Ms Spies said she replied “I fully expect you too.” Ms Spies said that Ms Torrisi then said “I know about the $10,000 going out each month”. Ms Spies said that she replied “What are you talking about?” Ms Spies said that Ms Torrisi replied “you know what?” Ms Spies said she replied “No I don’t, what are you talking about?” Ms Spies claimed that as they were walking out of the office Ms Torrisi then attempted to make a scene when she said the words “I have evidence” in a loud voice in a hallway in general ear shot of numerous other staff members.

[34] Ms Spies said that she understood these comments to be an allegation of misappropriation or fraud aimed at her. Ms Spies said when Ms Torrisi made this statement she responded in a firm but assertive manner, firstly asking what she meant by what she said and then telling Ms Torrisi she had nothing to hide. Ms Spies said she recalled she said something to the effect that she hoped Ms Torrisi had nothing to hide either.

[35] Ms Torrisi’s evidence regarding the exchange did not vary significantly from Ms Spies or Ms Kiro. Ms Torrisi disputed the specific words in some instances and also slamming the doors as she left as claimed by Ms Kiro. Ms Kiro provided with her statement a record of the meeting  22 which on the nature of the exchange regarding the $10,000 was consistent with Ms Spies evidence. I am inclined to accept the version as provided by Ms Spies and Ms Kiro over Ms Torrisi’s, however to the extent that they vary it is not determinative in the conclusion of the matter.

Other Events after suspension

[36] Attached to the statement of Ms Spies  23 is a further copy of an email Ms Torrisi sent to Ms Spies on 20 May 2013. It read as follows:

“Hi Katrina

I have not heard anything from you & I need to be notified for what reason I have been dismissed. I understand that you have notified me that I have been stood down but then went on to send an email to all sites notifying them I have been dismissed. Also due to the way you stood over me when asking me to pack up & leave & then escorting me out like I was a criminal I consequently left some personal belongings behind. These include my mobile phone charger, my amethyst key ring hanging on the front of the computer & my red bowl & spoon located on the bookshelf. These items need to be returned to me via whatever method of your choice. I do not have a phone so this is the only method I can be contacted on.

Amanda”

[37] Ms Torrisi responded by email the same day explaining the stand down was on full pay and was not a dismissal letter and that correspondence was sent to staff reflecting this. The letter said the personal items would be returned and Ms Spies was seeking legal advice and would be in contact in due course.  24

[38] Ms Torrisi subsequently provided QITE with a worker’s compensation medical certificate advising Ms Torrisi would be unfit for duty from 22 May 2013 until 22 June 2013. On 27 May Ms Spies sent a letter to Ms Torrisi acknowledging receipt of the medical certificate, and advising her that to properly investigate the complaints received from her on 15 May 2013 that a face to face meeting was required and would be convened as soon as reasonably possible after Ms Torrisi was cleared to return to duties.  25 The letter requested Ms Torrisi attend a meeting on Wednesday 26 June 2013 at Apel’s solicitors at 10.30am. Ms Torrisi was advised of her right to have a support person. Ms Spies requested a response to the letter.

[39] Ms Torrisi sent an email in reply later that evening asking if Peter Apel, the Vice Chairman of QITE and QITE solicitor was sent all of the material concerning her complaints. Ms Spies replied on 28 May confirming this information would be provided.

[40] At 6.06 pm on 28 May 2013 Ms Torrisi responded again by email as follows:

“Hi Katrina,

Thank you for sending my items.

Can you please tell me why I have been suspended in the first place? The ‘extra work’ email that you told me was what you perceived as serious misconduct has me feeling very confused. Part of my role performing the HR package fortnightly includes opening the employee’s rates spreadsheet that lists everyone’s pay, site, position & employment status. Keely is listed as PPT on the casual rate. At no stage did I ever say that she was getting benefits such as sick leave & holiday leave. The award states that you can be a permanent employee paid on casual rates if all parties agree to forfeiting the leave entitlements. This is all I was pointing out in that regards & I was simply asking if I could be considered.

Why was Jillian allowed to interview me for a position that she does not manage directly when I had reported to you, everything that had previously happened? Belinda has advised me that she was not allowed to reschedule her appointments & I feel that I was not given a fair chance because of Jillian’s obvious hate towards me.

Why have I been never been given the opportunity to fix whatever it is I am doing wrong that has gotten me in this situation in the first place? Is it not unreasonable management to not give a person the opportunity to be told what is wrong with them or what mistakes were made so that the necessary steps can be taken to rectify the problems?

Why was I filmed without my knowledge & consent on Karla’s mobile phone & reported this to Jillian without any action taken by her but when another employee reports the exact same complaint, Melissa, against Karla filming her a full investigation is put into action?

Why should honest employees be lying to detectives at the front counter to protect Jillian’s daughter Keely? A few weeks before I was stood down Keely used the Finance Office (that was being used by myself & Karla at the time) to hide in as she was going to be arrested & she told Eddie to tell them she wasn’t in the building. She then asked me to check the front of the building to see if their car had done so she could be collected from the side entrance by a friend. I did this as I felt I wasn’t in a position to say no to the EO’s daughter & put further pressure on an already strained relationship.

Why did you not care enough about my original complaint to ever sit down with me personally to discuss the issues that I had outlined in my letter of complaint. You passed it all onto Rae, who is a very professional & beautiful person, that went beyond her role to help me. The interview I had with Rae was recorded if you needed to listen to it but nothing ever happened after & the issues with the treatment from Jillian got far worse.

Why did you protect each other no matter what even though what potentially is happening is damaging & detrimental to past & future relationships.

All I wanted was the opportunity to work in an industry that would help empower the disadvantage (sic) local community & Jillian has crushed me socially & emotionally. I can’t take my son to football training because her son is in the same team. I can’t get out of the car to collect my children from their school because I feel like Jillian has run me down to the community & made out that I am ‘crazy’. I have stopped playing soccer & touch football because I am afraid that I am not aware of how I come across & don’t want to offend or hurt people. I can’t answer my phone because I am absolutely ashamed & humiliated about being stood down. I have panic attacks, cry uncontrollably & can’t sleep. I have never been so isolated in my whole life. I know that the majority of what I have mentioned above is in my personal life but if Jillian Trout treated me fairly then I would have not experienced any of it. I have managed since the age of 19 to always work, have 4 children and care for my mother who has suffered a brain aneurysm 13 years ago without any mental distress & it has taken 1 woman to constantly bully & harass me to breaking point.

What is the reality of ever returning to QITE?

Also, will Peter Apel be in the meeting as a director of QITE or as your legal representation? I have been advised that it is not in my best interests to attend such a meeting but be first provided in writing what the issues are.

Sorry if this comes across as a ‘victim’ letter but today I have not coped at all.

Amanda”

[41] Ms Spies replied on Thursday 30 May 2013 at 10.07pm acknowledging Ms Torrisi’s letter and stating that Ms Torrisi was now raising new issues for the first time, namely the process for filling the Employment Consultant role and allegations concerning staff being asked to lie to Detectives. Ms Spies said these matters would be added to the agenda to discuss at the meeting on 26 June. Ms Spies letter invited Ms Torrisi to provide any additional issues or information for consideration at the meeting. Ms Kiro gave evidence that a thorough investigation of these additional issues was conducted by Ms Spies. 26

[42] On 26 June 2013 at 1.04am Ms Torrisi sent an email to Ms Spies and Mr Apel querying the hours she was paid and also said “she had been advised that it was not in her best interests to attend the meeting tomorrow” which was in fact that day. The email said that she was scheduled to go back to work and would need advice in writing on where everything stood in addition to requesting feedback on all of her previous correspondence and also reasons why she had been stood down.  27

[43] At 9.49am Ms Spies sent a reply email and attached a letter dated 26 June 2013 advising Ms Torrisi of the reasons why she was stood down. The letter said that as a matter of fairness to Ms Torrisi it is important that she have the opportunity to firstly provide any further evidence or explanation concerning her complaints and that all aspects are fully investigated, and secondly that she have an opportunity to respond to the serious misconduct matters.

[44] Ms Spies letter went on to say that the meeting that day was Ms Torrisi’s opportunity to give her side of the story, and that while she was not obliged to attend it was important that she understand that if she chose not to attend the meeting at 10.30am, then QITE would continue and complete the investigations based on the information they presently had to hand and would make a determination on the matters of complaint and Ms Torrisi’s continued employment with QITE. The letter confirmed that Ms Torrisi was welcome to bring a support person. 28

At 10.26 am on 26 June Ms Torrisi sent an email to Ms Spies and Mr Apel as follows:

‘Hi Katrina

I do not agree with the allegation that I have accessed staff records that I should not have. As previously explained part of my role was performing the HR package every fortnight. Part of this procedure involves opening the Employee Rates Spreadsheet. You can confirm this with Rodney Kilpatrick or as outlined in the Finance Procedure Manual. This spreadsheet list every QITE employee in alphabetical order, their job title, employment terms (part time or full time) their hourly pay rate & their yearly pay rate. Keely Trout is listed on that spreadsheet as a permanent part time employee.

In regards to the other allegation about my comments in regard to the $10,000 per month. I apologise for the way I came across & I did not intend to hurt you. I guess I was completely shocked that I was being escorted out for what I perceive as being a completely 100% honest & loyal person who has been unfairly targeted by Jillian Tout (sic). The information came from conversations that all the finance team had on more than one occasion (even only after weeks starting my employment) that it was completely inappropriate, even illegal, that your husband, Peter Spies, was being paid $10,000 per month from QITE each month. I would have never even known about this arrangement had it not been for the conversations held by other long term employees namely, Rodney Kilpatrick, Karla Buchgraber & Natasha Taylor. I would like to ensure you that I have never spoken to anyone about this as the truth is that I am scared of what the repercussions would be.

Everything I have ever disclosed is absolute truth. I honestly don’t see how I will ever be able to work in an environment when lies & backstabbing is common practice.

Mareeba is a small community & how am I supposed to gain further employment when my credibility is completely shattered? I always performed my work with a high degree of accuracy.

Looking back now if I had just shut my mouth on Jillian’s inappropriate bullying treatment, never complained about Karia filming me on her mobile phone without my knowledge & put up with dishonest colleagues in the finance department then I would probably be at work today.

You have consistently told me that ‘my allegations are taken very seriously & are being investigated’ but never provide any information on what the results are for the investigations.

Am I able to return back to work but in a different role? I had a fantastic working relationship with everyone else in that building.

Amanda”

[45] At the commencement of the meeting at 10.30am on 26 June Mr Apel and Ms Kiro were in attendance and it was noted Ms Torrisi did not attend and the meeting was concluded at 11am.

[46] Outstanding issues from QITE’s understanding at the time were;

● the complaints received from Ms Torrisi on 28 February 2013,

● complaints received from Ms Torrisi on 15 May,

● complaints received from Ms Torrisi on 28 May;

and;

● the CEO’s concerns regarding breach of confidentiality, and the allegations regarding the $10,000 directed at the CEO.

[47] On 1 July 2013 Mr Apel and Ms Kiro met and went over the complaints and the evidence received and the results of investigations. Ms Kiro gave evidence that they went through each issue item by item and made a decision on each item. Ms Kiro said a decision was made to terminate Ms Torrisi.  29 The termination letter 30 sets out in detail the findings rejecting the complaints from 28 February, 15 May and 28 May. I do not intend to traverse all of the evidence concerning these matters. As already stated above I am satisfied the evidence supports a finding that managements actions in regard to the 28 February complaints were reasonable. Having considered all of the evidence concerning the 15 May and 28 May complaints the evidence supports the same finding.

Recording of Interview, and Email regarding Duties

[48] In the course of the hearing Ms Torrisi raised two instances where she maintained evidence provided had been tampered with. The first matter pertained to an audio recording of an interview conducted by Ms Kiro with Ms Torrisi to deal with Ms Torrisi’s complaints lodged on 28 February. Ms Torrisi maintained that as the recording was said to have commenced at 9am and concluded at 11.04am, and the recording provided by the Respondent should have lasted 2 hours and 4 minutes, 3 minutes had been edited out.

[49] Ms Kiro who made the recording gave oral evidence denying this. 31 Ms Kiro also said the section of the interview that Ms Torrisi asserted was removed regarding Ms Kiro’s own relationship with Ms Trout was actually on the recording.

[50] The second matter pertained to what appears to be a different version of an email of 5 December 2012 sent at 11.22am from Ms Trout to finance staff concerning the duties of each staff member. What was said to be the original version was tendered into evidence 32 and another version provided by the Respondent to Ms Torrisi on 9 December 2013 of the same email with a number of amendments.33

[51] Ms Trout gave an explanation that a second email was generated at the time because Ms Torrisi disputed that the number of days worked on the first email was not accurate. 34 Ms Trout could give no explanation as to why both emails appear to record that they were sent at the same time on the same date when they are different.35 Ms Trout said it was the second version of the email that she sent to Mr Apel that was subsequently sent to Ms Torrisi.

[52] I have considered the evidence regarding both of these matters and am inclined to the view that the evidence is inconclusive about both issues. I do not intend to draw an adverse inference about the credibility of the evidence of either Ms Kiro or Ms Trout from the two matters.

Finding on alleged Breach of Confidentiality

[53] Again I do not intend to extensively set out all of the evidence on the alleged breach of confidentiality issue. It would appear to me, contrary to the view put by QITE, that it would be possible for Ms Torrisi to have become aware of the information concerning Ms Keely Trout’s employment status in a number of different ways given her role in the finance department. It also appeared from the evidence that Ms Torrisi did have cause to access MYOB cards in her role. I am inclined to accept the evidence of Ms Torrisi that she did not need to access the MYOB card to obtain the information as claimed.

[54] In any event even if I am wrong and Ms Torrisi did access the MYOB card of Keely Trout, I do not see her conduct in looking at Ms Keely Trout’s MYOB card given her role and the fact that she raised the information concerning Ms Keely Trout with Ms Trout (an Executive Officer) and Ms Spies (the CEO) as such a serious breach of confidentiality that it would warrant immediate suspension, or ultimately termination.

[55] The email she sent was internal only and sent directly from her to the two management figures in QITE. It was not shared with anyone outside QITE, or according to the evidence anyone else inside QITE except the two managers. The evidence indicated that while staff had been told prior to this event that employee pay information was confidential, the nature of Ms Torrisi’s conduct in this instance at most warranted a warning that she should not do it again – it did not warrant termination. However it is evident the matter raised the issue of trust and confidence from QITE’s perspective.

Findings on comments regarding $10,000

[56] I see the comments directed by Ms Torrisi at Ms Spies the CEO of the Respondent as more serious then the confidentiality issue. However they need to be seen in context. The evidence was that they arose from comments Ms Torrisi heard being made by other more long standing employees in the finance department, and also that they were made by Ms Torrisi after she had been told she was being stood down to investigate the alleged breach of confidentiality. As I have already found that suspending Ms Torrisi in the circumstances was an overreach on the part of QITE and her conduct was not warranting of such a serious response this provides some basis to afford Ms Torrisi some latitude on the subsequent issue.

[57] Further Ms Torrisi ultimately showed some remorse concerning the statements she made that day by apologising to Ms Spies in the email on the morning of 26 June 2013. However it must be acknowledged that her conduct in making the comments directed at the most senior person in QITE as she did could only be interpreted to be a suggestion of some impropriety on the part of Ms Spies or her husband. This was a very serious matter to raise and then subsequently fail to provide any basis for having made the suggestion in the first place. This conduct further eroded the trust and confidence required between Ms Torrisi and her employer in order for the relationship to remain viable.

Failure to Attend 26 June Meeting

[58] Just as important as the two misconduct allegations was the failure of Ms Torrisi to attend the meeting on 26 June, or give a reasonable explanation for why she decided not to attend, or to provide some alternative proposal, or to make a request as to how she would be prepared to co-operate with QITE in dealing with the complaints and the misconduct allegations. Whilst Ms Torrisi sent a further email to QITE providing some further explanation of her position the reason she gave for choosing not to participate in the scheduled meeting was that she was advised it was not in her interests. This was not good enough in the circumstances. Ms Torrisi should have attempted to co-operate with the process.

[59] The evidence concerning the chronology of complaints made by Ms Torrisi against others also do not assist her case as the evidences indicates overwhelmingly the complaints were not made out. The corrosive effect of these complaints was that they undermined her relationship with firstly her work colleagues in the finance team, then her Manager Ms Trout, and ultimately also the CEO Ms Spies.

[60] While there may be a question over whether a combination of the confidentiality issue and the comments concerning the $10,000 directed at Ms Spies were of themselves sufficient to provide a valid reason for termination, when the failure of Ms Torrisi to co-operate with the investigation conducted by QITE is added, in combination her conduct did provide a valid reason for QITE to terminate Ms Torrisi as at 1 July 2013. Ms Torrisi took no further steps between 26 June and 1 July 2013 despite being advised in the letter of Ms Spies on 26 June the matter would be determined on the material available if she did not participate in the process.

[61] I am satisfied that Ms Torrisi was notified of the reasons for termination. I am also satisfied she was given an opportunity to respond to the reasons. QITE did not refuse Ms Torrisi the right to have a support person, instead Ms Torrisi elected not to attend the meeting on 26 June. Section 387(e) is not relevant in this matter. The evidence was the employer was of a reasonable size. Sections 387(f) and (g) have no significant influence in the determination of this matter.

[62] In terms of any other matters that are relevant, it was clear from the evidence that Ms Torrisi was under considerable personal strain during the period of her employment with QITE quite apart from the pressure of strained relationships at work. These outside factors included significant personal financial pressure on both herself and her family, the diagnosis of a condition affecting one of her four children that would undoubtedly place more demands on her, and also her ongoing caring responsibilities for her mother.

[63] All of these factors no doubt played a part, and this is reflected in her own comments as set out at paragraph 11 above, where she acknowledged herself outside factors were having some impact at work. Any reasonable person would accept some level of understanding should be afforded to an employee in Ms Torrisi’s personal circumstances at the time.

[64] It would appear from the evidence Ms Torrisi became convinced not only was she not being supported by QITE management, but that particularly Ms Trout was actively blocking her attempts to improve her circumstances. The evidence however simply does not support Ms Torrisi’s views in that regard that she expressed in great detail in the complaints she lodged between February and May 2013. I have taken Ms Torrisi’s personal circumstances into consideration, but by 1 July 2013 her own actions had led to a point where QITE’s trust and confidence in her as an employee had eroded to a point where it was not unfair for it to terminate the employment relationship. For all of the reasons set out above the termination was not unfair and the application must be dismissed.

COMMISSIONER

Appearances:

Ms A Torrisi appeared on her own behalf.

Mr P Apel appeared on behalf of Quality Innovation Training and Employment [Q.I.T.E.]

Hearing details:

2013.

Mareeba:

18 December.

 1   Exhibit 5 Statement of Jillian Trout dated 2 December 2013 paragraph 3

 2   Exhibit 8 Submissions and attachments from Applicant Ms Torrisi

 3   Exhibit 1 Statement of Katrina Spies dated 3 December 2013

 4   Exhibit 3 Statement of Rodney Kilpatrick

 5   Exhibit 4 Statement of Raewyn Moana Kiro dated 4 December 2013

 6   Exhibit 5 Statement of Jillian Trout dated 2 December 2013

 7   Exhibit 5 Statement of Jillian Trout dated 2 December 2013 paragraph 7

 8   Exhibit 8 Submissions and attachments from Applicant Ms Torrisi attachment 1

 9   Exhibit 5 Statement of Jillian Trout dated 2 December 2013 attachment JLT1

 10   Exhibit 5 Statement of Jillian Trout dated 2 December 2013 paragraph 10

 11   Exhibit 5 Statement of Jillian Trout dated 2 December 2013 attachment JLT 2

 12   Exhibit 5 Statement of Jillian Trout dated 2 December 2013 paragraph 12

 13   Exhibit 5 Statement of Jillian Trout dated 2 December 2013 paragraphs 13 to `14

 14   Exhibit 5 Statement of Jillian Trout dated 2 December 2013 paragraph 15

 15   Exhibit 5 Statement of Jillian Trout dated 2 December 2013 paragraphs 16 to 17

 16   Exhibit 5 Statement of Jillian Trout dated 2 December 2013 attachment JLT 3 to 4

 17   Exhibit 5 Statement of Jillian Trout dated 2 December 2013 paragraph 21

 18   Exhibit 5 Statement of Jillian Trout dated 2 December 2013 attachment JLT 5

 19   Exhibit 5 Statement of Jillian Trout dated 2 December 2013 paragraph 28

 20   Exhibit 8 Submissions and attachments from Applicant Ms Torrisi attachment 18

 21   Exhibit 1 Statement of Katrina Spies dated 3 December 2013 KCS 7

 22   Exhibit 4 Statement of Raewyn Moana Kiro dated 4 December 2013 attachment 4

 23   Exhibit 1 Statement of Katrina Spies dated 3 December 2013 KCS 9

 24   Exhibit 1 Statement of Katrina Spies dated 3 December 2013 KCS

 25   Exhibit 4 Statement of Raewyn Moana Kiro dated 4 December 2013 paragraph 67 attachment 6

 26   Exhibit 4 Statement of Raewyn Moana Kiro dated 4 December 2013 paragraph 75 to 76

 27   Exhibit 4 Statement of Raewyn Moana Kiro dated 4 December 2013 paragraph 77

 28   Exhibit 4 Statement of Raewyn Moana Kiro dated 4 December 2013 attachment 9

 29   Exhibit 4 Statement of Raewyn Moana Kiro dated 4 December 2013 paragraph 90

 30   Exhibit 4 Statement of Raewyn Moana Kiro dated 4 December 2013 attachment 10

 31   Transcript dated 18 December 2013 PN349

 32   Exhibit 6 Email from Jillian Trout dated 5 December 2013

 33   Exhibit 7 second version of an email from Jillian Trout

 34   Transcript dated 18 December 2013 PN 516

 35   Transcript dated 18 December 2013 PN 520 to 526

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