Andy Cowper v St Joseph's Flexible Learning Centre
[2019] FWC 6630
•23 SEPTEMBER 2019
| [2019] FWC 6630 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Andy Cowper
v
St Joseph’s Flexible Learning Centre
(U2018/6737)
COMMISSIONER GREGORY | MELBOURNE, 23 SEPTEMBER 2019 |
Application for an unfair dismissal remedy.
Introduction
[1] Mr Andy Cowper was employed as a Youth Worker by St Joseph’s Flexible Learning Centre (“the Centre”) in March 2015. The Centre is an alternative Catholic school which offers full-time and multi-year secondary education and social inclusion programs for young people who are disengaged or disenfranchised from mainstream education. Many of its students have social and behavioural problems and have experienced difficulty in assimilating into mainstream schools. Mr Cowper has worked with disengaged and vulnerable young people for eleven years, and prior to that time worked in various capacities, including as a school holiday program coordinator, sports coach, and college lecturer. However, he was dismissed from his employment at the Centre in June last year following a series of events that unfolded after his involvement in an interaction that occurred between two students on 23 October 2017.
[2] Mr Cowper subsequently lodged an unfair dismissal application. He claims there was no valid reason to terminate his employment, and he was not afforded procedural fairness in the processes leading up to his termination. This decision deals with that application.
[3] Ms R. Preston of Counsel appeared on behalf of Mr Cowper. Ms M. Norton of Counsel appeared on behalf of the Centre. Both were given permission to appear under s.596(2)(a) of the Fair Work Act 2009 (Cth) (“the Act”) as the matter involved a degree of complexity and their involvement might enable it to be dealt with more efficiently.
The Issue to be Determined
[4] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied the dismissal “was harsh, unjust or unreasonable.” 1
[5] Section 387 continues to require that the Commission must take into account certain matters in deciding whether the dismissal was harsh, unjust or unreasonable. It states:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.” 2
[6] The Commission is now required to determine whether Mr Cowper’s dismissal was “harsh, unjust or unreasonable” taking into account each of the matters in s.387.
The Evidence and Submissions
The Applicant
Mr Andy Cowper
[7] Mr Cowper commenced employment with the Centre on 2 March 2015 in the role of Youth Worker. He indicated in his evidence that he has had significant experience in similar roles, having worked previously with disengaged and vulnerable young people for eleven years. Prior to this time he also worked with young people in a variety of different roles, including as a school holiday program co-ordinator, sports coach, and college lecturer.
[8] The Centre is committed to providing students with a safe and secure environment, and part of this commitment involves ensuring that adequate supervision is provided to the students at all times. This includes monitoring any incidents that occur, and a requirement that the school office be notified of any incidents that have the potential to develop into more significant problems. This requires the exercise of some discretion in determining what is a reportable incident. A “School Incident/Accident/Near-Miss Report Form” is provided for this purpose and can take from between 10 to 30 minutes to complete. Mr Cowper estimated that he would complete one of these Report Forms on one or two occasions each month.
[9] On 23 October 2017 he was carrying out his responsibilities at the end of the school day, which involved guiding and assisting students as they depart from the premises. He witnessed two senior students engage in “an altercation.” He described it as being “seemingly minor and lasted for about 20 minutes. I stayed with the Students throughout the Incident. There were no raised voices, there were no threats of violence. I was unaware of any other incidents earlier in the day between the Students. In my assessment, there was no indication that the Incident would escalate into a critical or reportable incident.” 3
[10] During the course of this interaction one of the students asked Mr Cowper if he could borrow his mobile phone to call his Carer. However, after he gave him the phone the student called another individual, who was not a student at the school and was not known to Mr Cowper. From what he was able to overhear of this conversation it appeared that the student was trying to arrange for the other two individuals to meet up at some point for a fight. Mr Cowper then asked for his phone back, but before giving it to him the student deleted the number he had called.
[11] One of the students then asked the other whether he wanted to go around the corner, but he refused. Mr Cowper said that if they had left and gone around the corner he would have followed to ensure their interaction did not escalate into something more significant. After about 20 minutes the students went their separate ways and Mr Cowper accordingly decided that nothing further was going to arise as a consequence of their involvement. He concluded that “there was no immediate risk and no reportable incident.” 4 He also said he had “…been in similar type scenarios with students on countless occasions and had no reason to second guess my assessment of the Incident.”5
[12] Mr Cowper and another staff member, Mr Brad Copeland, then escorted one of the students to the North Melbourne railway station on the school bus. Mr Cowper spoke to the student on the way to the station and it did not appear that he was agitated or bothered in any way. The other student had, in the meantime, left to catch a tram.
[13] As far as Mr Cowper was aware the only other staff member to witness the incident was the Art Teacher, Mr Justin Olmstead, who also knew one of the students well. Mr Cowper said that Mr Olmstead’s response to what occurred did not suggest that he considered that the circumstances involved anything serious, and this was confirmed in a brief discussion he had with him after returning to the school on the bus from North Melbourne station.
[14] However, on the following day Mr Cowper was informed that the two students and another person had met up again in Sunshine on the previous evening, approximately three hours after leaving the Centre, and one of the students had been stabbed in a fight that took place. The Police had accordingly been involved.
[15] Mr Cowper said that there was then some discussion among the staff at the Centre, after they became aware of what had occurred, about whether he knew the students were planning to attend “a party” 6 on the evening of 23 October. However, he could not recall whether he was aware of these discussions prior to the incident occurring, or whether he only became aware of them after it occurred.
[16] The Centre subsequently engaged Mr Simon Davies from Safeguarding Services to conduct an investigation into the incident. Mr Cowper was notified of this on 1 November 2017. He was also told he was to be stood down from his employment while the incident was being investigated. He was first interviewed by Mr Davies on 2 February 2018, and a transcript of that interview was attached to his witness statement. He was interviewed again by telephone on 1 March 2018, and a transcript was again attached to his witness statement.
[17] Mr Cowper first became aware of what had occurred on the evening of 23 October when he attended for work on the following day and met another staff member, Ms Kelly Willmot, in the school grounds. He spoke to her again later in the day, but denied telling her that the two students had been engaged in a “squabble” 7 after school on the previous day. He also denied that he told Ms Willmot he was aware the two students were planning to meet up later in the day to finish off a fight.
[18] He then attended a meeting later on the same day with the then Principal, Ms Bethany Johnson, and the Associate Head of Campus, Ms Connie Pretto. He again denied telling them that the two students had told him they were planning to be involved in a fight, and at no time did they talk about getting involved in a fight. He was asked in that meeting to complete an Incident Report Form, which he also attached to his witness statement. He maintains that the conversation between the students was not heated, and both presented in a calm manner. He acknowledged that he used the term “altercation” in the Incident Report Form to describe what occurred, but still did not consider that the encounter between the two students constituted a reportable incident.
[19] He also stated that even if a Report Form had been filed immediately following the incident no action would have been taken by the Centre as there was no immediate or foreseeable threat of violence to either student and, as a consequence, it would not have prevented the incident from occurring.
[20] Mr Cowper also believes he has been singled out and treated differently from other staff members, despite others having witnessed what occurred, or having witnessed other interactions between the two students earlier in the day. He was also not provided with copies of the Report Forms that were subsequently completed by other staff members.
[21] Mr Cowper was also asked by the Centre to provide a report to the Police, and after speaking to the investigating Police Officer was told that he could not have foreseen that the assault was going to occur as there was nothing in the interaction at the conclusion of the school day that could reasonably have alerted him to the potential for the subsequent assault.
[22] Mr Cowper also believes he has been denied procedural fairness as a consequence of the delays in the investigation process. He was first interviewed by the investigator three months after the incident occurred. He then had a second interview on the telephone one month later. He also states that he was told by the investigator during the course of the investigation that his future employment was not in jeopardy. In addition, he was not provided with an opportunity to respond to all the evidence gathered during the investigation process, despite what was stated in the letter given to him when he was stood down. In addition, he was only provided with the transcripts of his interviews with the investigator on 28 May 2018, which was after these proceedings were initiated. This was despite being assured by the investigator that they would be given to him after the interviews were conducted.
[23] He was then provided with a show cause notice on 8 April 2018, together with a summary of the findings of the investigation report. He responded on 19 April and indicated that he had not been provided with procedural fairness in the process to date. He also reiterated that there was no valid reason to terminate his employment. He received a response on 1 May, but this did not address his concerns. The summary of findings also contained factual errors, and attributes statements to him that he did not make. The first of these was the statement that, “Both Mr Cowper and Mr Olmstead describe a heated altercation occurring” 8 between the two students “with threats of violence being clearly stated and or implied. If the interaction was a passive one as portrayed by Mr Cowper, there would have been no requirement for him to “diffuse” it.”9 At no stage did he make reference to a heated altercation occurring, or any implied threats of violence. He also denies he made reference to “chesting,” as alleged by the investigator. He was also not aware that the students intended to meet up again later that evening and said, “If there was any foreseeable indication that the boys were going to engage in violence at any later point I would have reported the Incident as required.”10
[24] He continued to state, “Despite the assertion in the Summary of Findings, given the actual nature of the Incident, and based on my 11 years of working with disengaged, traumatized and vulnerable young people,” 11 which included 12 months working with one of the students, “I did not consider the matter to be a reportable incident, and I maintain that position. On this basis I did not fail to follow the school’s policies and procedures.”12
[25] Mr Cowper also maintains that there are no material differences in his recall of the incident in the days following, or in the responses he provided during the investigation process, apart from not being able to recall precisely when he heard that “a party” had taken place on the evening of 23 October. He also denies that his reference to the incident as an “altercation” meant that it fell into the category of a reportable incident, which should have been reported in an Incident Report Form.
[26] On 10 May Mr Cowper and his support person met with Ms Hand and Ms Johnson. The purpose of the meeting was to discuss the show cause notice, and to obtain details about the allegations made against him. However, no further information was provided about the details of the allegations, or about the evidence relied upon to substantiate those claims. Ms Hand also made reference to extracts from the investigation report, despite Mr Cowper not being provided with a copy.
[27] On 22 May Mr Cowper made a further written request seeking details about the allegations, but no response was provided. He made contact again on 5 June stating that there was no valid ground to terminate his employment. He was then invited by Ms Hand to attend a further meeting on 6 June. He was advised in advance of the meeting that the intention was to obtain his response to the possible courses of action being contemplated, which included a warning being provided, or the termination of his employment. He again emphasised his concerns about the process involved, and his ongoing commitment to working with the students.
[28] On 8 June he received an email indicating that his employment had been terminated. He was not provided with any opportunity to respond to this decision. The termination letter also contained further details and additional allegations not previously put to him. He was again not provided with copies of the memos or text messages detailed in the letter. He also states that he acted in accordance with the Centre’s Duty of Care Policy at all times, and at the time of the incident “I took all reasonable steps to reduce the risk to harm to the persons who are owed a duty of care.” 13 He also states that he acted in accordance with the Risk Management Policy and the relevant parts of the First Point of Contact Procedures.
[29] Mr Cowper also made reference to the Centre’s reliance on the findings of the Commission for Children and Young People (“CCYP”). He was not provided with any of the correspondence exchanged between the Centre and the CCYP. He also contacted the CCYP and was told it does not make findings about reportable conduct unless it has first conducted an investigation into what occurred, in which case it would make contact with the person being investigated.
[30] Mr Cowper acknowledged in cross-examination that he was aware of the various policies that applied at the Centre. He also acknowledged that the two students involved in the incident on 23 October could be considered to be vulnerable, and he was aware one had previously punched another student. However, every student and every circumstance was different, and each situation had to be judged on its merits.
[31] He also denied in cross-examination that he was trying to ‘rewrite history’ in an attempt to diminish his culpability by changing his version of events after becoming aware of what had occurred on the evening of 23 October. He also reiterated that he did not report the incident because there were no threats of violence involved, and no actual violence occurred. He also denied that his confusion about when he first heard about the use of the word “party” was because he was aware that this reference could also mean meeting up for the purpose of getting involved in a fight.
[32] Mr Cowper also denied that he used the word “squabble” in any of his discussions with Ms Hand or Ms Johnson because it was not a word that was part of his vocabulary. In addition, if he had considered the incident to be “heated” he would have completed an Incident Report. He again denied having erred in not reporting, despite having reflected on what occurred on a number of subsequent occasions.
[33] He also acknowledged that he had been consistent in stating that one of the students was trying to arrange for the other to meet up with a third person from outside the School for the purpose of getting involved in a fight. However, he did not consider this to be reportable, based on his knowledge of the student, and the student’s immediate dismissal of any suggestion of him getting involved. However, he acknowledged that the threat to the student was potentially concerning, given his vulnerability and the fact he lived out of home.
[34] He also acknowledged that after having reviewed the correspondence from the Centre it was made clear that there could be consequences arising from the investigation being undertaken, and this could include being given a warning or his employment being terminated. However, he initially believed that nothing would happen, given what had occurred, and he approached the exercise as one involving a process review. He also acknowledged that the Centre’s concerns about what had occurred were eventually made clear to him, and he was provided with a number of opportunities to respond to those concerns. The investigation was also delayed, in part, by him being absent on annual leave in January.
[35] He was also taken in cross-examination to some discrepancies in his evidence relating to the delays in the investigation process; the reason why his second interview with the investigator took place over the telephone; and his work performance history. However, he denied that any of these claimed discrepancies meant that he had been less than candid in the content of his witness statement.
The Applicant’s Submissions
[36] Mr Cowper submits that he is an experienced youth worker who has worked with disengaged, traumatised and vulnerable young people over an extended period of time. In addition, he had not been warned and was not required to be performance managed in the period of more than three years that he was employed by the Centre. He continues to submit that he had an exemplary employment record during that time.
[37] He also submits that he was denied procedural fairness in the process leading up to his dismissal because he was prevented from having access to and the opportunity to respond to the evidence relied upon by the Centre in coming to the decision to terminate his employment.
[38] In terms of the various requirements contained in s.387 Mr Cowper submits, firstly, that there was no valid reason for his dismissal and it was instead a capricious decision. He points to two factors in this context. Firstly, he was the ‘fall guy’ in the face of the unfortunate events that occurred on the evening of 23 October 2017 and, as a consequence, he was singled out and treated differently from the other staff. If a consistent approach had been adopted to what constitutes reportable conduct then other employees should also have been found to have acted inappropriately, given the standards applied to him.
[39] Secondly, Ms Willmot has become fixated about what occurred, based on what she has been told by others, and has had no regard for the version of events provided by Mr Cowper. Her inflexible adherence to this position has been maintained despite it not being credible, and this has in turn come to be the established view of the Centre. This situation has been exacerbated by the fact that the Incident Report she prepared was never given to Mr Cowper at any time prior to his termination. It was instead claimed to have been privileged, despite the fact that it simply contained an email forwarded by Ms Willmott to Ms Johnson describing what she had observed that afternoon.
[40] This situation has also been exacerbated by the findings of the investigation report, which simply accepted the accounts provided by others about what Mr Cowper said, regardless of his denials. He is also accused of having lied, when the evidence suggests that at worst he made an error of judgement.
[41] Mr Cowper continues to submit that the various claims about his behaviour at other times are not relevant and should be ignored, because they have not been relied upon as the basis for his dismissal. This is acknowledged, in particular, in the evidence provided by Ms Pretto. However, he also provided a credible explanation about each of the occasions when he was alleged to have been dishonest, and those claims have accordingly fallen away. It is noted, for example, that despite the accusations made about him deleting messages from his work phone there was no attempt made to check call records or to ascertain who the callers were.
[42] Mr Cowper continues to submit that the processes were again compromised by the delays that occurred in the investigation. Six other witnesses were interviewed by the investigator prior to the Christmas break, however, he did not meet with Mr Cowper until February in the following year, despite his earlier requests to meet prior to Christmas. In addition, when he was finally provided with the opportunity to provide an explanation he did not attempt to make out that nothing had happened. However, he was at all times closely monitoring what was occurring and alert to whether it was likely to escalate into something that needed to be reported. In addition, despite his use of the word “altercation” the conversation between the two students was not heated, and both presented in a calm manner. They then went their separate ways. There was also no reason why he would not have reported the incident if he had apprehended any potential risk of harm.
[43] He continues to reject any suggestion that he attempted to change his version of events after becoming aware of what occurred on the evening of 23 October. For example, he still referred to the discussions about “a fight” in his report to Ms Willmott, despite being aware at that time of the stabbing that had occurred later that evening.
[44] In reviewing the evidence of the other witnesses he submits that his evidence about what he told Ms Johnson on 24 October should be preferred to her evidence, which can be said to demonstrate an agenda. She also acknowledged that the handwritten notes she made were not a verbatim account, and were instead a summary of the discussions. This should be noted in the context of her reference to “a heated interaction,” and Mr Cowper’s denial about having ever used those words. This was part of a pattern whereby undue emphasis has been placed on words ascribed to him, which he never actually used.
[45] In addition, his seniority and experience has been relied upon as a reason why his failure to report the incident was significant, and why his actions were viewed differently from those of other employees. However, his seniority and experience actually provided an explanation as to why his judgement should be preferred to the evidence of other witnesses.
[46] He also submits that Ms Willmott is mistaken in her account of the conversation with him on 24 October, and it is not consistent with those of other witnesses. She has instead placed her own interpretation on that discussion to the point where she is now unable to back down from what she said occurred.
[47] It is also submitted that an objective assessment of the evidence relied upon could not enable a conclusion that the incident warranted reporting. Mr Cowper was therefore not in breach of the Centre’s policies or procedures. However, it is also submitted in the alternative that even if the Commission were to find the incident was reportable, then any misconduct or error in judgement was insufficient to support the decision to terminate his employment, and it was instead a disproportionate response.
[48] Mr Cowper also denies ever referring to the incident as a “fight” or “heated interaction,” and these allegations are without foundation. It is also consistent with the Report Form he completed on the day following the incident. It was also unreasonable to rely upon the evidence of Ms Willmott or Ms Johnson, given they rely upon the use of a word that is not contained within Mr Cowper’s usual vocabulary. In addition, any minor discrepancies in his recollection can be explained by the delays in the investigation process, and the stress he was placed under as a consequence of the process adopted.
[49] In regard to whether he was notified of the reason for his termination Mr Cowper submits he was not provided with a copy of the investigation report, and only received some excerpts from the full report. In addition, he did not receive a reply to his letter of 22 May 2018, which responded to the summary of findings provided to him, and submits that this emphasises that the decision to terminate his employment was predetermined.
[50] However, he does acknowledge that he was given some detail about the allegations, and was provided with some opportunity to respond. However, he was significantly disadvantaged by the decision to withhold evidence gained during the investigation, and by the decision to not provide him with a copy of the investigation report. He was also not provided with an opportunity to respond to the specific allegations contained in the email terminating his employment, prior to receiving that email. In addition, the decision to terminate his employment was not conveyed to him in person, but was received instead by email.
[51] He continues to submit that he was not warned about his performance or conduct in the time he was employed by the Centre, and he can be said to have had an impeccable employment record. He also retains the support of many of his colleagues at the Centre. In addition, he has been financially disadvantaged to a significant extent as a consequence of his termination, and expects that he will have to leave this field of employment.
[52] It is also submitted that there was a clear break in the chain of causation between the interaction that occurred between the two students at the end of the school day, and what occurred later that evening. The Centre’s view of the incident as constituting a reportable one was accordingly prejudiced by the benefit of hindsight.
[53] In addition, the entire process of responding to the incident was significantly compromised by the delays involved, and the fact that Mr Cowper was not interviewed by the investigator until more than three months after the events occurred. This can be contrasted with the interviews with others involved, which occurred immediately following the incident. Mr Cowper was also told by the investigator that his employment was not in jeopardy and this was clearly incorrect. He was also denied the opportunity to have a second interview in person, or to be provided with all of the evidence gathered during the investigation process, despite what was stated in the stand down letter given to him. In addition, the summary of findings in the investigation report does not reflect the evidence that he provided.
[54] He submits, in conclusion, that his termination was harsh, unjust and unreasonable in that the Centre did not have a valid reason to dismiss him, and the procedures undertaken in response to the incident, including the investigation process, were procedurally flawed.
The Respondent’s Submissions and Evidence
Ms Bethany Johnson
[55] Ms Johnson is the Wellbeing and Practice Development Manager at the Centre and has worked there since January 2014. She has also been the Acting Campus Principal since October 2017. The Centre works with vulnerable young people with complex needs and the two students involved in the incident on the afternoon of 23 October are part of a vulnerable cohort of students at the Centre who require the highest level of support and protection. In addition, the Centre’s records indicate that there have been two previous instances of conflict between the two students, and Mr Cowper was involved in the follow-up measures taken on the second of those occasions.
[56] At around lunchtime on 24 October 2017 Ms Johnson received a text message from another staff member. They had been advised by a student’s Residential Carer that the student was missing, and it was presumed he was in some form of trouble. There was also a suggestion that the student had been involved in a fight at the Centre on the previous day. The staff member also indicated that Mr Cowper had made reference to this on the previous day. Ms Johnson subsequently arranged a meeting later that day with the Associate Head of Campus, Ms Connie Pretto, and Mr Cowper. She also attached to her witness statement a copy of an email that she sent to herself following that meeting. It detailed the notes she took during the meeting, as well as other key events that occurred in the period that followed.
[57] The notes make reference to Mr Cowper telling the meeting about the students going to a party later that night, which Ms Johnson took to mean attending either a social gathering or some form of confrontation. In her experience social gatherings were more likely to take place later in the week, whereas this reference to “a party” concerned a gathering on Monday evening, which made it more likely to involve some form of confrontation.
[58] Ms Johnson therefore expected that an incident of this kind would have been communicated as soon as possible to the responsible person at the Centre under the First Point of Contact Policy, even if the staff member involved was confident the immediate risk had resolved itself.
[59] Mr Cowper subsequently completed an Incident Report, as requested, and forwarded it to Ms Johnson on the following day. However, it was different to the account he gave during the meeting on the previous day, and made no mention of the interaction being “heated,” or the students discussing going around the corner to fight.
[60] Ms Johnson then contacted Ms Chloe Hand, the Network Principal of the South-East Flexible Schools Network, to provide her with an update. She was told the missing student had now been located and was being treated for apparent stab wounds. She was also told that the student had apparently been involved in some form of conflict with another student on the previous day, and a staff member had apparently witnessed the incident. However, it was not clear whether this was connected to the assault that occurred later in the evening.
[61] Ms Johnson had also been informed that two other staff members witnessed what occurred, and had also been asked to complete Incident Reports. However, when these Reports were received they indicated that the staff members involved had not actually witnessed what occurred.
[62] Ms Johnson was in Tasmania on the following day and received a text message from Mr Cowper asking what information he should provide to the Police. She called him later in the day and advised him not to contact the Police, as his Incident Report was not consistent with what she understood had occurred, and she did not want him making a false statement to the Police. She then organised a further meeting with him on 26 October.
[63] Ms Johnson told Mr Cowper in the meeting on 26 October that there were some differences between what he had told her in the meeting on 24 October and what had been set out in his Incident Report. He indicated in response that he was no longer entirely sure about what he had actually heard and seen, as opposed to what other people had told him. However, he indicated that he did not want to amend or alter his Report.
[64] Ms Johnson said that the State Government’s statutory Reportable Conduct Scheme requires an organisation to inform the Commission for Children and Young People, within three days, of any instances where an employee places a young person at harm, or causes harm to them by their action or inaction. It also requires that any such instances be investigated and appropriate steps be taken in response. Ms Johnson accordingly decided that Mr Cowper should be stood down while an independent investigation took place.
[65] On 10 May Ms Johnson attended a disciplinary meeting with Ms Hand, Mr Cowper and his legal representative. The purpose of the meeting was to give Mr Cowper an opportunity to respond to the allegations. He attempted to obtain further information about the Centre’s concerns, and wanted a copy of the investigation report. However, he was told it would not be provided as it was understood to be protected by legal privilege. He was, however, provided with a comprehensive explanation about how his failure to act had contravened the Centre’s established policies and processes. The differences between the content of his Incident Report and the discussions with him on the previous day were again highlighted.
[66] Ms Johnson said the phone call Mr Cowper overheard during the incident on 23 October, and the reference in that conversation to a fight, were enough to warrant a further response from him. Any interaction between two vulnerable students, with the possibility of violent escalation, should be followed up on every occasion and, at the very least, she should have been informed in her capacity as the First Point of Contact.
[67] Ms Johnson acknowledged that Mr Justin Olmstead had also witnessed the incident, and should also have notified her about it. However, Mr Cowper was the more senior staff member and the key staff contact for the second student. He was also aware of the history of conflict between the two students. Mr Olmstead had therefore reasonably assumed that Mr Cowper would provide follow-up on the incident. In addition, after becoming aware of what had occurred Mr Olmstead immediately expressed remorse for not having reported it, and had then been consistent in his subsequent accounts about what occurred. He was also required to attend a disciplinary meeting to deal with the concerns arising from his involvement in the incident.
[68] Ms Johnson also took issue with Mr Cowper’s evidence about his employment record, and the evidence that he had not been warned or been involved in any performance management issues during the time he had been employed at the Centre. She agreed that he had not been given any formal warnings, but some concerns had been raised with him on an informal basis at different times. These related to some inconsistencies in his work, and his failure to meet certain expectations, including being present in class at all times.
[69] There had also been two additional issues which raised concerns that he was not always operating in a safe manner. On one occasion he had failed to keep line of sight on a particularly vulnerable student, and when telephoned about this had said he was still with the student. He had also failed to follow up a previous concern about students carrying weapons. He had also been tardy in providing a medical certificate supporting his request to take a period of carer’s leave.
[70] Ms Johnson acknowledged in cross-examination that each staff member needed to use their discretion in assessing the circumstances they are dealing with from time to time. This involved them factoring in their level of awareness about each student in making an assessment about the level of risk. However, the Centre also had a collaborative decision-making process in relation to risk and follow-up actions.
[71] Ms Johnson also indicated in cross-examination that she compiled the notes in regard to the meeting on 24 October later on the same evening. They were not a verbatim record, but were instead a summary of what Mr Cowper had said he had seen and observed. She also confirmed in further examination-in-chief that despite the evidence of Ms Hand and Ms Pretto she did not take handwritten notes during the course of the meeting on 24 October, and her notes were instead compiled later in the evening. She also acknowledged that she might have inferred that Mr Cowper said the students were going around the corner to fight, “but I remember and believe that Andy actually said they were talking about going around the corner to fight.” 14
[72] Ms Johnson also acknowledged that while the other employees who witnessed some of the events on 23 October had indicated that the circumstances were “a bit out of the ordinary,” 15 “…none of them advised me of those observations in my role as acting campus principal or as first point of contact that day.”16 She also acknowledged that some of those employees “made a greater or lesser error of judgment in reporting or not reporting.”17
[73] She also confirmed that in the two and a half years that Mr Cowper had been employed he had only had one annual performance review meeting, although a further meeting was scheduled for 31 October. However, this did not take place because by that time he had been stood down.
Ms Chloe Hand
[74] Ms Hand is the Network Co-Principal of the Youth+ South-East Flexible Schools Network (VIC/TAS) (“ Youth+”). The Centre is one of several operated by Youth+ and is required to comply with various policies and procedure that Youth+ has put in place to control the conduct and responsibilities of staff. These include a Risk Management Policy.
[75] Ms Hand acknowledged that there is scope for discretion in the application of these policies by staff members. However, there is no scope to not report threats of violence, particularly when they involve vulnerable students. In terms of the events of 23 October she considered that Mr Cowper’s acknowledgement in his witness statement of his knowledge about the history of violence between the two students, and the audible threat of violence made by a third person in the telephone conversation he overheard, meant that it was clearly expected he would have reported the incident to enable appropriate action to be taken in response.
[76] In addition, the introduction of reportable conduct laws in Victoria now requires the Principal of the Centre to report and investigate any incident where they form a reasonable belief that an employee has acted in a way that may involve reportable conduct. Any such allegations must also be reported to the Commission for Children and Young People. Ms Hand accordingly concluded that Mr Cowper’s failure to report the incident on 23 October amounted to “significant neglect of a child,” 18 being one of the nominated categories of reportable conduct under this scheme, and she was therefore obliged to notify the Commission as to what had occurred. She did so on 26 October 2017.
[77] The effect of this notification also invoked the disciplinary provisions under the enterprise agreement that covered the Centre and its employees, and the relevant steps in the Agreement were then followed. These processes involved the series of meetings which took place between 24 October 2017 and 6 June 2018 with Mr Cowper. However, these procedures did not impose a mandatory requirement to meet with an employee to inform them that their employment had been terminated if this was the outcome that ultimately followed from the disciplinary procedure.
[78] Ms Hand also raised an issue concerning the use of the mobile phone supplied to Mr Cowper by the Centre in the meeting with him on 1 November 2017. He was required to return the phone after he had been stood down, and it subsequently appeared that a number of calls and text records had been cleared or wiped from the phone record. Ms Hand understood that Mr Cowper had sent various messages to staff members to say there had been an “altercation,” and she wanted to know why these records appeared to have been deleted. Mr Cowper told her they must have been deleted when he lent the phone to one of the students, but this did not explain why calls that were made following the incident had also been deleted. She therefore concluded that Mr Cowper had deleted these records from his phone. She also informed Mr Cowper at the conclusion of the meeting that it had been decided that the allegations made against him were to be independently investigated, and he was not required to attend at work until further notice. This was confirmed in a letter sent to him on the same day.
[79] Ms Hand also responded in her witness statement to a number of the allegations made by Mr Cowper about the conduct of the independent investigation. In regard to the delays that occurred she was informed by the Commission for Children and Young People that the independent investigation process could not commence until the Police had finished their investigation. This did not occur until 6 December 2017. In addition, an unfortunate incident occurred at the Centre and it was decided that interviews with staff members be deferred for a week because of the upset caused by this incident. There were then some further delays in meeting because of a period of annual leave that Mr Cowper took in January.
[80] She also said that the independent investigator denied giving Mr Cowper the impression he was merely conducting a “policy and procedure review.” 19 Mr Cowper had also agreed to the second discussion taking place by telephone in order to expedite the process.
[81] The investigation report eventually substantiated the allegations made against Mr Cowper, and a further meeting was then arranged with him in April 2018. However, the letter sent to him at the time was not a “show cause” notice, but rather a step that complied with the disciplinary process in the enterprise agreement. The meeting eventually took place on 10 May and Mr Cowper was provided with an opportunity to respond to the allegations, as well as to provide any further information he wanted the Centre to consider. He again indicated that he was confused about what had occurred, and was having difficulty recalling the incident. He also said he had not seen some of the policies and procedures that were being referred to, but ultimately conceded that he must have been made aware of them at some point. He also repeatedly requested a copy of the investigation report, but was told it could not be provided to him until advice had been received from the Centre’s lawyers.
[82] A further meeting was then held on 6 June 2018 in accordance with the processes in the enterprise agreement. Mr Cowper was again provided with the opportunity to provide any further explanation about what occurred. He also indicated that he would suffer financial hardship and negative health impacts if his employment was terminated. Ms Hand then told him he would be provided with a letter by the end of the week advising about the proposed course of action.
[83] It was finally decided by the Centre that his conduct constituted a gross breach of its code of conduct and child safety policy. It also constituted neglect of a child and a breach of his duty of care to the students. He had also “demonstrated an inability to act honestly during the investigations following the incident.” 20 This contrasted with the behaviour of other staff members.
[84] Ms Hand also indicated in cross-examination that Mr Cowper’s seniority and the training he had undertaken meant that it was not reasonable for him to have concluded that it was not necessary to report what occurred on the afternoon of 23 October. However, she also acknowledged that she had not made findings of reportable conduct about other employees, despite some of them having also witnessed aspects of the interaction between the two students on the day. She also confirmed in cross-examination that the responses provided by other staff during the course of the investigation were not disclosed to Mr Cowper because it was considered that this would have been a breach of confidentiality.
Ms Connie Pretto
[85] Ms Connie Pretto is the Associate Head of Campus at the Centre. She has been employed there since 2013, and from 2016 was Mr Cowper’s immediate Manager.
[86] She was not at work on 23 October, and only became aware of what occurred on that evening when she received a text message. She subsequently deleted the message and indicated in her evidence that she now can’t recall who sent the text message to her.
[87] She then met with Ms Willmott on the following day who told her that she was very upset about Mr Cowper not having reported the incident that occurred between two students on the previous afternoon. She had already met with Mr Cowper earlier that day. Ms Pretto indicated in response that she was not surprised as Mr Cowper “had a history of this sort of behaviour.” 21
[88] Ms Pretto then spoke with Mr Cowper later on the same day and told him that he was required to meet with the Acting Principal, Ms Johnson, to discuss what had occurred. Mr Cowper responded by asking, “am I in trouble?” 22 Ms Pretto indicated in response that he should “be honest about the events as everyone makes mistakes.”23 A further meeting was then held on 26 October. Mr Cowper said at the time that he could not recall the two students making reference to attending “a party” during the course of their interaction on 23 October. However, she still expected that he would have contacted the students’ carers after the incident, given his understanding of their background. For example, one of the students lived in residential care and was under the age of eighteen.
[89] Ms Pretto indicated in her evidence that Mr Cowper did not necessarily have an unblemished record in regard to his work performance, and was often behind in his paperwork and had to be followed up in regard to the preparation of reports about students. There had also been comment about his absences from the classroom, and his habit of walking around the Centre talking to people. He had also been less than honest on occasions in responding to questions about his whereabouts. He had also been tardy in providing a medical certificate in support of a period of claimed personal leave.
[90] However, Ms Pretto indicated in cross-examination that she believed Mr Cowper genuinely cared for the welfare of the students at the Centre, and would take steps to report incidents that led him to fear for the safety of a student.
[91] She also acknowledged in cross-examination that she had never directly accused Mr Cowper of lying or of dishonesty, and had not always sought to obtain explanations from him on those occasions when she considered he had acted inappropriately.
Mr Justin Olmstead
[92] Mr Olmstead is employed by the Centre as an Art Teacher and has been employed since May 2012.
[93] On the afternoon of 23 October 2017 he came across the two students, who he described as being close to each other and “facing off.” 24 Mr Cowper was monitoring the situation and at the same time trying to reason with the students. Mr Olmstead also tried to defuse the situation. He heard one student make reference to attending “a party” that evening, but was unaware that this could mean anything other than attending a social gathering. One of the students then left the scene briefly. When he returned the two students began chesting each other, but there was only limited physical contact.
[94] Mr Olmstead then thought he might have been getting involved in the incident unnecessarily, and was reassured by Mr Cowper that everything seemed to be “OK.” 25 He returned to the art room after observing the interaction between the two students for between five to seven minutes. As he left it appeared their conversation was becoming more light hearted and jocular. Neither he or Mr Cowper considered that the incident “was worth reporting or following up,”26 and he thought “the situation would blow over.”27
[95] However, he was not aware at the time that one of the students had previously demonstrated violent tendencies, and if he had been aware of this it “would have been a red flag and I would have stayed and followed up more.” 28 On 25 October he received a request from Ms Johnson to provide an account of what had occurred and he subsequently sent an email setting out his recollection of the incident.
[96] Mr Olmstead indicated in his evidence that he was not subject to any disciplinary action as a result of what occurred, and it was explained to him in a discussion in March last year with Ms Johnson and Ms Hand that he had been genuine and consistent in his responses. He was also told that Mr Cowper was the senior person involved at the time, and the responsibility to take appropriate action ultimately rested with him.
Ms Kelly Willmott
[97] Ms Kelly Willmott is the Senior Outreach and Out Of Home Care Coordinator at the Centre and has been employed since 2013. She has worked with Mr Cowper on a regular basis since he was first employed.
[98] On the morning of 24 October 2017 she received a telephone call from one of the Residential Case Managers advising that a student was missing. A text message was immediately sent to all staff members at the Centre requesting that she be promptly informed if the student was seen by any of the staff.
[99] She “crossed paths” 29 with Mr Cowper shortly afterwards and he told her that he had received the text message. He then asked whether she had heard about the incident on the previous day and she said she had not. Mr Cowper then told her that the students had been involved in a “squabble,”30 and had been arguing about a friend of one of them. They had also discussed a plan to meet up later that evening in order to finish off “the fight.”31 Ms Willmott then asked why she had not been informed about this. Mr Cowper indicated in response that he did not think it was necessary because one of the students had refused to meet up again later that evening. Ms Willmott then told Mr Cowper that one of the students had been stabbed during the course of the evening. She said his demeanour immediately changed, and he seemed shocked by this news.
[100] Ms Willmott reiterated in her evidence that she was certain Mr Cowper had used the word “squabble” during her conversation with him on 24 October, and had also said the students were going to meet up to finish off the fight. She sent an email to Ms Johnson on the following day detailing her conversation with Mr Cowper.
[101] Ms Willmott also made reference to the evidence in Mr Cowper’s witness statement about him overhearing the phone call in which one of the students referred to a person wanting to fight the other student. She indicated in response that the threat of getting involved in a fight was something that should definitely be reported by a teacher, particularly if the student was on the out-of-home care list. There is generally more scrutiny of these students because they are often vulnerable and at high risk. She said that if the incident had been reported she would have put in place “some safety planning” 32 with the student to ensure he got home safely. She would have also contacted his Carer and his Case Manager to inform them about what had occurred.
[102] Ms Willmott continued to indicate that she was also aware of at least one previous occasion when Mr Cowper had failed to report an issue that should have been reported.
[103] She also stated in cross-examination that the words she had recorded in her notes after meeting with Mr Cowper on 24 October were a verbatim report of what he had said. However, they had been made in the afternoon on the following day. She also confirmed that he had told her that the students were involved “in a squabble,” 33 however, she did not ask what he meant by that. She also confirmed that Mr Cowper had told her that they planned to meet at 7.30 pm that evening to finish off the fight, and had been arguing about a friend of one of them. However, one of the students then said he was not going to meet up at that time, and Mr Cowper had accordingly concluded that nothing more would come of the incident.
The Respondent’s Submissions
[104] The Centre submits that it had a valid reason to terminate Mr Cowper’s employment based, firstly, on his failure to take appropriate action, in accordance with its policies, on the afternoon of 23 October. It submits that this failure was compounded by the subsequent inconsistent accounts that he provided about what occurred. While it acknowledges that the working environment at the Centre can be difficult and challenging at times what occurred on 23 October, including the threat of violence from someone outside of the Centre, was an unusual event and not something that could be considered to be commonplace. There was accordingly no question that the circumstances should have been the subject of an Incident Report.
[105] The Centre continues to submit that Mr Cowper made two significant errors of judgement in the circumstances. He, firstly, underestimated the level of threat that existed between the two students and then should have lodged an Incident Report, given the threat of violence directed at one of the students from an individual outside of the school. This potential threat continued to exist after the two students had left the Centre at the end of the day. It also submits that Mr Cowper was afforded procedural fairness in the processes that followed, and was made aware of the concerns about his conduct before any decision to terminate his employment was taken. He was also provided with an adequate opportunity to respond to those concerns before the decision was made.
[106] It continues to submit that there are three key factual disputes between the parties. Firstly, the nature of the incident as observed by Mr Cowper. Secondly, the description of the incident he subsequently provided to Ms Willmott on the following morning and, finally, the description of the incident he gave to Ms Johnson and Ms Pretto later on the same day. There is also a difference of view about whether the interaction between the two students was heated and involved verbal and physical aggression, and whether they had agreed to meet up later that evening to finish off the fight.
[107] The Centre submits that the evidence of its witnesses should be preferred. In the case of Mr Olmstead it submits that his evidence has remained consistent over time, whereas Mr Cowper’s has not. The evidence of Ms Willmott and Ms Johnson about Mr Cowper’s description of the incident is also supported by notes taken at the time. There are also two key differences between the evidence of Mr Cowper and Ms Willmott. Mr Cowper is adamant that he did not use the word “squabble” in the account he gave to Ms Willmott. He also did not refer to the students meeting up for a fight at 7.30 pm that evening. However, it continues to submit that Ms Willmott should not be criticised for adopting a consistent and unbending position, in circumstances where Mr Cowper has also taken a similar stance. He has also acknowledged that his recollection of the events has become confused to the extent he was unable to distinguish between what he observed and what he was later told about the interaction that occurred on the afternoon of 23 October.
[108] The Centre continues to submit that Mr Cowper had reason and motivation to change his version of what occurred, after the serious nature of the events on the evening of 23 October became known to him.
[109] The Centre also rejects any suggestion that Mr Cowper has become a ‘fall guy’ in response to what occurred and notes that this accusation was never put to its witnesses in cross-examination. It accordingly submits that it cannot be relied on. It also submits that, in any case, there is no evidentiary foundation to support this assertion, and there was no suggestion that the Centre needed a scapegoat to get it off some metaphorical hook.
[110] However, it did accept that Mr Cowper has not necessarily been dishonest in the evidence that he provided, but has instead at different times appeared confused about what he saw and heard at the time of the incident, compared with what he has heard since that time.
[111] The Centre continues to submit that the key question to be determined is whether Mr Cowper should have reported what he observed on the afternoon of 23 October, given the policies and procedures that the Centre had in place. It submits that it is open to the Commission to make the following findings. The incident was heated and involved verbal and physical aggression at various times. Mr Cowper was aware of the history of tension and violence between the students, and the consequent need to be aware of the risk of escalation. These factors were sufficient to require reporting under the First Point of Contact Policy, and his failure to report under the terms of that Policy was a serious breach, which placed vulnerable students at further risk. In addition, Mr Cowper had initially made reference to the incident as being heated and involving a “squabble,” with reference to meeting up later that evening to finish off the fight. However, after the serious nature of what occurred on the evening of 23 October became known he attempted to change his story by downplaying the level of tension between the students, and entirely omitting any reference to them meeting up later that evening.
[112] It also submits that even if the interaction between the two students was not sufficient to justify an Incident Report being made, then there was a clear breach of non-reporting in regard to the external threat from a person outside the Centre, and this should of itself been deemed sufficiently serious to warrant reporting.
[113] It also points to the various inconsistencies in terms of what happened after the failure to report. This included Mr Cowper’s assertions about his impeccable employment record, and his insistence about wanting a second interview with the investigator, in person, when the email exchanges clearly indicate he had agreed to be interviewed by telephone. It also takes issue with his assertion that the investigator had told Mr Cowper that he was simply conducting a policy and procedure review.
[114] It submits, in conclusion, that Mr Cowper’s evidence should be reviewed carefully and where there is any conflict the evidence of its witnesses should be preferred, particularly when it is supported by contemporaneous records.
[115] It submits that these circumstances provided a factual basis for the decision to terminate Mr Cowper’s employment, and it was not a disproportionate response, given the duty of care the Centre has to its students. It also submits that the process adopted satisfied the remaining matters contained in s.387. Mr Cowper was repeatedly made aware of its concerns about his failure to report the incident, and the inconsistent accounts he gave in subsequent days. He was given multiple opportunities to respond to these concerns, and was notified of the disciplinary action being contemplated. He was also provided with an opportunity to respond to the proposed course of action before any final decision was arrived at.
[116] The Centre continues to submit that there is nothing to substantiate the allegation that the outcome of the independent investigation was predetermined. In addition, while there were delays in interviewing Mr Cowper during the investigation, this was due in large part to factors beyond the control of the Centre. These involved, in particular, the requirement to wait for the Police to agree to the investigation commencing. There was also no breach of procedural fairness arising from the refusal to provide the investigation report to Mr Cowper, and he was well aware, at all times, of the nature and substance of the allegations and provided with multiple opportunities to respond.
[117] It also submits that the question of whether the injury sustained by the student could have been avoided is not relevant. The key issue is instead whether the facts known to Mr Cowper were sufficient to give rise to “immediate concerns about a dangerous situation emerging.” 34 It submits, in summary, in terms of “valid reason” that Mr Cowper’s termination was justified based on the two elements that are inextricably linked. Firstly, his failure to report what occurred on the afternoon of 23 October and, secondly, his subsequent conduct involving, in particular, his inconsistent accounts and apparent dishonesty. This had destroyed the trust and confidence existing between Mr Cowper and senior management. This relationship was of critical importance, given the nature of the work at the Centre and the responsibilities associated with care of the students. His failure to act appropriately was also exacerbated by the subsequent lack of any acknowledgement by him about any error of judgement having been made.
Consideration
[118] As indicated at the outset the Commission is required to determine whether Mr Cowper’s dismissal was “harsh, unjust or unreasonable” having particular regard to the various matters set out in s.387. The circumstances in which an employee’s termination of employment might be considered to be “harsh, unjust or unreasonable” have been considered in a number of previous decisions.
[119] The decision in Byrne & Frew v Australian Airlines Ltd 35 is often cited in this context and has been referred to in these proceedings. The joint judgement of McHugh and Gummow JJ concluded by stating:
“…It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 36
[120] The decision of the Full Bench of Fair Work Australia in L. Sayer v Melsteel Pty Ltd 37 also provides guidance about the Commission’s role in regard to each of the considerations in s.387 that must be taken into account in determining whether an employee’s dismissal was “harsh, unjust or unreasonable.” The Full Bench concluded:
“Where the Applicant does present a case, in the ordinary course each of the criteria in s.387 which is capable of being relevant on the facts emerging at the hearing must be taken into account.” 38
[121] I now turn to deal with each of the considerations in s.387 and those authorities I consider relevant to the determination of this matter.
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)
[122] Previous authorities have again had regard to what is required in order to conclude that there was “a valid reason for the dismissal related to the person’s capacity or conduct.” The judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd 39 is often referred to in this context. His Honour came to the following conclusions:
“The reasons of an employer for terminating the employment of an employee are solely within the knowledge of the employer. The employer may state a reason but that reason need not be the actual reason nor need it be the only reason. This is the rationale for the onus of proof provisions contained in s 170EDA.
Section 170DE(1) refers to ‘‘a valid reason, or valid reasons’’, but the Act does not give a meaning to those phrases or the adjective ‘‘valid’’. A reference to dictionaries shows that the word ‘‘valid’’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: ‘‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’’ In the Macquarie Dictionary the relevant meaning is ‘‘sound, just, or well founded; a valid reason’’
In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly…” 40
[123] The Full Bench also came to the following conclusion in Parmalat Food Products Pty Ltd v Wililo: 41
“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.” 42
[124] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post (‘Australian Postal Corporation’) 43 also provides a useful summary of the approach to be taken by the Commission in weighing the factors to be considered:
“Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:
(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;
against
(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.” 44
[125] It is also clear that the reason must be valid when viewed objectively. It is not sufficient that the employer believes it had a valid reason for termination. This was made clear in the Full Bench decision in Rode v Burwood Mitsubishi 45 at paragraph 19 when the Full Bench stated:
“…the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” 46
[126] These authorities make clear that the existence of a valid reason is often the most important consideration among the matters in s.387 that the Commission must take into account. It is also clear that a “valid reason” must be one that is “sound, defensible and well founded” as opposed to one that is capricious, spiteful or prejudiced. It must also be valid in the context of both the employee’s capacity or conduct, and the operational requirements of the business. The assessment about whether a valid reason exists must also be made in a practical, common sense way to ensure the parties are treated fairly in circumstances where each has rights and privileges, but duties and obligations as well.
[127] As the decision of the Full Bench in Australian Postal Corporation also makes clear, consideration of “valid reason” inevitably involves weighing different considerations, including the conduct involved and any mitigating or other relevant matters. I have sought to adopt the approach of these authorities in coming to a decision.
[128] The Centre relies on two sets of circumstances in support of its submission that it had a valid reason to dismiss Mr Cowper. The first concerns his failure to complete an Incident Report Form following the interaction between the two students at the conclusion of the school day on the afternoon of 23 October 2017. The second concerns what it considers to be his subsequent attempts to downplay and diminish the significance of what occurred after he became aware of what transpired on that evening when those involved met up again. The Commission is accordingly required to have regard to each of these circumstances. I turn, firstly, to deal with what occurred on the afternoon of 23 October 2017, and whether it gave rise to a valid reason to terminate Mr Cowper’s employment.
[129] The relevant circumstances have been set out in detail already and are not restated now. However, I am satisfied that the following matters are of particular relevance in determining whether a “valid reason” existed. The evidence indicates, firstly, that the environment at the Centre can be a challenging one for both staff and students. The Centre is responsible for the welfare of a cohort of vulnerable young students who have experienced a variety of social and behavioural problems. Some students are particularly vulnerable, and require higher levels of support and care. Incidents involving violence and confrontation are not uncommon or unusual. The Centre accordingly has strict policies and procedures in place which its employees are expected to understand and abide by. They include requirements to provide Incident Reports on appropriate occasions.
[130] I am also satisfied that the evidence establishes that the existence and nature of these policies was not at issue, despite some suggestion at one point to the contrary. Mr Cowper also confirmed in cross-examination that he was aware of the relevant policies that applied at the Centre, including the requirement to complete an Incident Report Form on appropriate occasions. He indicated that he would complete one of these forms, on average, on one or two occasions each month. Ms Hand also acknowledged in her evidence that there is scope for the exercise of discretion by individual staff members in the application of these policies, and this extended to making decisions about whether a particular incident should be the subject of an Incident Report Form. However, she also stated that in her view there was little or no scope for failing to provide an Incident Report in circumstances where a threat of violence was directed at vulnerable students.
[131] The critical issue in this context is whether Mr Cowper should have lodged an Incident Report Form following what occurred at the end of the school day on the afternoon of 23 October 2017. It is also necessary to consider whether his failure to do so, and the subsequent decision to terminate his employment, was a proportionate outcome in all the circumstances.
[132] A number of considerations are again relevant in this context. Some can be said to provide support for his behaviour and the actions he took at the time. Firstly, Mr Cowper had by then been employed by the Centre for around two and a half years. He had also worked with disengaged and vulnerable young people for a number of years prior to this time. He can accordingly be considered to be someone with a significant degree of experience in working with young people, like those attending the Centre, who are vulnerable and have experienced social and behavioural issues. Secondly, there is nothing significant in the evidence to suggest that he was anything other than a person who was dedicated and committed to his work at the Centre, and to the students in his care. These factors lend weight to the view that his judgement and decision-making in the circumstances was based on and informed by a significant amount of knowledge and experience, and as a consequence should be respected.
[133] The evidence also makes clear that he was familiar with the background of the two students who were involved in the discussion at the end of the school day on the afternoon of 23 October 2017. He had various previous dealings with both students, and had been responsible for working closely with one, in particular, after an earlier incident that the student was involved in. He had also been given particular responsibility for the welfare of this student on an ongoing basis. It can again be presumed that he brought this knowledge and experience of the two students to bear in the decision that he made at the time.
[134] In addition, Mr Cowper was the only staff member who was with the two students during the entire twenty minute period that the interaction between them played out on that afternoon. Other staff members were present for some of the time, or had observed previous interactions between the two students earlier in the day. For example, the investigator’s report indicates that Mr Smith observed the two students involved in what was described as a “heated and aggressive” 47 conversation at around 1.00 pm on that day, although it also indicates that Mr Smith apparently did not consider the situation to be any different to other similar circumstances that staff at the Centre had to deal with on a day-to-day basis. Mr Smith was then required to attend to other responsibilities and asked another teacher, Mr Will Stoyles, to come and assess the situation. The report also indicates that another staff member, Mr Crowe, observed an exchange between the two students at around 1.30 pm on that day, being at the end of the lunch break. He is reported as stating, “There wasn’t much to it but it did seem really dodgy.”48 However, he apparently did not consider that what he had witnessed was of such concern that it required reporting. Another staff member, Mr Binyon, is also reported as witnessing a conversation between the two students and a suggestion from one that he would see the other at his house at 7.30 pm that evening.
[135] Mr Olmstead is an experienced teacher who has worked at the Centre since 2012. He witnessed part of what occurred on 23 October 2017 at the end of the school day. He described the two students as “facing off.” 49 He also heard one refer to attending a party that evening, but was not aware of this reference meaning anything other than attending a social gathering. He also observed Mr Cowper overseeing the interaction and was reassured by him that everything was okay.
[136] Mr Olmstead left the scene after approximately six minutes. He indicated in his evidence that it appeared that the interaction between the two students was becoming increasingly light hearted and jocular by the time he left. He also stated that neither he nor Mr Cowper thought that the incident warranted reporting at the time, and they both considered instead that it would just “blow over.” 50 However, Mr Olmstead also indicated in his evidence that he was not aware at the time that one of the students had previously demonstrated violent tendencies, and he might have taken further steps to intervene if he had been aware of this.
[137] I am satisfied, in conclusion, that the evidence makes clear that Mr Cowper was with the two students for the entire time they were involved in the interaction at the end of the school day. He described what occurred as being “seemingly minor” 51 throughout that twenty minute period. His evidence indicates that there were no raised voices and no threats of violence exchanged. He does acknowledge that one of the students asked to use his mobile phone so that he could call his Carer, however, after being given the phone he called another person who was not known to Mr Cowper. He also understood from what he overheard of the phone conversation that the student who made the call was trying to arrange a meeting with the other student and a third-party for the purpose of getting involved in a fight. However, the other student indicated that he was not interested in getting involved.
[138] The evidence also makes clear that while other staff members witnessed various interactions between the two students during the course of the day, Mr Cowper was the only member of staff who witnessed the entire interaction at the end of the school day. It follows that this placed him in the best position to understand the totality of what was occurring, and what needed to be done in response. In addition, despite what other staff members observed at different times during the course of the day none of them considered that those circumstances warranted an Incident Report Form being completed.
[139] Mr Cowper and another teacher also accompanied one of the students to the North Melbourne station after the interaction had ended. He was also aware that the other student had left the Centre separately by tram. These circumstances again, understandably, reinforced his view that the interaction between the two students on that day was at an end.
[140] Mr Cowper accordingly concluded that “there was no immediate risk and no reportable incident.” 52 He had also been involved in many similar encounters in the past and had no reason to second-guess his initial assessment. As indicated, it also appears his assessment was fortified by the evidence of Mr Olmstead. Mr Cowper’s evidence that he was not aware that reference to attending “a party” could mean something other than attending a social gathering was also supported by the evidence of Mr Olmstead.
[141] I am satisfied that it can be concluded, on one hand, that Mr Cowper acted appropriately in all the circumstances, and was therefore treated harshly by the decision to terminate his employment. This conclusion is based on the assumption that he was an experienced professional, and brought that experience to bear in deciding that the circumstances did not warrant making an Incident Report, or responding to the situation in accordance with the First Point of Contact Policy. Therefore, his exercise of professional discretion and judgement should not now be called into question because of the unfortunate events that occurred later that evening.
[142] The Centre obviously has a different view. Ms Johnson indicated in her evidence that the reference to “a fight,” in the telephone conversation Mr Cowper overheard, should have been sufficient to prompt him to take further action, including completing an Incident Report Form. He was also aware of the previous history of conflict between the two students, unlike Mr Olmstead. Ms Hand also said the audible threat of violence in the telephone conversation, and the understanding about the previous history between the two students, should have led him to report the incident. He had accordingly acted in breach of the Centre’s policies and procedures in not doing so, and had also acted in breach of his duty of care to the students.
[143] The investigation report also came to the following conclusion: “Giving consideration to all of the available evidence and having regard for the required standard of proof, the Investigator believes it is more probable than not that Mr Cowper should have informed the First Point of Contact about the interaction” 53 and “it is reasonable for the Decision Maker to make a finding of Substantiated in respect of Allegation 1 in this matter.”54
[144] However, Mr Cowper takes issue with various statements relied upon by the investigator, including the statement that Mr Cowper described what occurred as “a heated altercation.” While he acknowledges making reference to an “altercation,” he denies that he ever described it as “a heated altercation.”
[145] I have also reviewed the various policy documents that Mr Cowper is said to have breached, and the memos sent to staff about these policies. As indicated in the evidence the Centre operates a First Point of Contact protocol whereby a senior staff member is allocated each day as a contact point for all staff to report critical incidents and other issues of concern. Staff memos variously refer to this person being contacted “if you have immediate concerns about a dangerous situation emerging,” 55 and “The particular response will depend on the incident and the young people involved.”56 They also refer to providing support to the student to assist them to get home, in situations where there is a high likelihood of further conflict.
[146] Whilst it can be concluded, with hindsight, that Mr Cowper should have lodged an Incident Report, or at the very least made contact with the staff member allocated on that day as the first point of contact, it is also possible to conclude that his exercise of his professional judgement led him to decide that there was no reasonable likelihood of a dangerous situation emerging, and therefore he did not act in breach of any of the relevant policies.
[147] In addition, it can be suggested that it is always preferable to err on the side of caution, and any incident, regardless of how significant, should be reported. However, at this point the Commission is simply required to consider whether the Centre had a valid reason to terminate Mr Cowper’s employment, based on his actions and the exercise of his professional discretion on the afternoon of 23 October. I am not satisfied, in conclusion, having had regard to the circumstances I have referred to, and what appears to be the differential treatment afforded to other employees, that the Centre can be said to have had a valid reason to dismiss Mr Cowper from his employment that was sound, defensible or well founded.
[148] The Centre also relies on what occurred after the day in question in support of it having had a valid reason to terminate Mr Cowper’s employment. It submits, in summary, that once the serious nature of what occurred on the evening of 23 October became known Mr Cowper attempted to modify his account of what occurred earlier on the day in order to downplay the serious nature of the interaction. It claims that his intention in doing so was to avoid responsibility for not having provided an Incident Report about what occurred.
[149] It relies, in particular, on the description of the incident he provided to Ms Willmott on the following morning, compared to the description he gave to Ms Johnson and Ms Pretto later on the same day. Ms Willmott indicated, in particular, that he made reference to a “squabble” taking place, and to the students making reference to meeting up for “a fight” at 7.30 pm that evening. Ms Willmott subsequently cited these statements in an email she forwarded to Ms Johnson on the 25 October.
[150] The Centre also submits that when Mr Cowper provided an Incident Report on 25 October, after being requested to do so, the content of this Report was again different from the account he gave during the meeting on the previous day with Ms Johnson and Ms Pretto. It refers, in particular, to the fact that he made no mention in that Report of the interaction being heated, or of the students discussing going around the corner to engage in a fight. The investigator’s report also found that there were differences between the initial accounts provided by Mr Cowper in the days following the incident, and the subsequent accounts he provided as part of the investigation.
[151] However, Mr Cowper rejects any suggestion that he endeavoured to alter his version after becoming aware of what transpired on the evening of 23 October. He highlights the following matters in this context.
• He continued to make reference to the two students having discussions about a fight in the Incident Report he provided.
• Ms Johnson’s evidence can be said to demonstrate “an agenda.” Her handwritten notes were also not a verbatim account of her meeting with Mr Cowper, but were instead a summary of the discussions that were compiled at a later point in time. Mr Cowper also denies that he ever made reference to a “heated altercation” in the meeting with Ms Johnson and Ms Hand.
• He was not in the habit of using the word “squabble.” Ms Willmott is accordingly mistaken in her account of the conversation with him on the morning of 24 October, and she has since found it impossible to shift from the position she initially adopted.
• Any differences in the various accounts that were provided during the investigation process can also be explained by the delays that occurred during the course of the investigation. For example, the initial interview with Mr Cowper took place more than three months after the events of 23 October 2017, with the second interview then being conducted a further one month later.
• The findings in the investigation report make reference to both Mr Cowper and Mr Olmstead describing a heated altercation between the two students. It also quotes Mr Cowper using the word “chesting” when describing some aspects of the interaction between the two students. However, the transcripts of the interviews with Mr Cowper conducted by the investigator do not attribute these words to Mr Cowper. He does refer to a verbal altercation, but later takes issue with this description. However, he makes no reference to the two students being involved in “chesting” each other. Mr Cowper accordingly submits that the investigator attributed these words to him when, in fact, they were descriptions used by others, or were words that were attributed to Mr Cowper by others.
[152] It is difficult to come to a firm conclusion about whether Mr Cowper deliberately or otherwise sought to recast his original version of what occurred after becoming aware of what later transpired on the evening of 23 October. On the one hand it can be argued that the other staff members involved had little reason or motivation to misrepresent what they were initially told by Mr Cowper. At the same time there is no reason to take issue with Mr Cowper’s evidence that he would never have used the word “squabble” because it is not part of his vocabulary. He also made reference to the interaction involving an altercation, and to the students discussing the possibility of a fight taking place, in the Incident Report that he later provided. It can accordingly be concluded that he was not subsequently attempting to ‘sugarcoat’ what occurred. It was also suggested that it was unrealistic for him to claim that he was not aware that reference to “a party” could mean attending either a social gathering or meeting up to get involved in a fight. However, the evidence of Mr Olmstead, who was also an experienced teacher at the Centre, was that he was also unaware that the reference to “a party” could have these different meanings.
[153] In coming to a decision about whether the Centre can be said to have had a valid reason to dismiss Mr Cowper I have had regard to all the evidence relied on by the parties. I am not satisfied, in conclusion, that the Centre can be said to have had a valid reason to dismiss Mr Cowper in the sense that it was sound, defensible and well founded. I have had particular regard to the following matters in coming to this conclusion.
• Mr Cowper was an experienced professional who has worked with students with social and behavioural problems over an extended period of time. He was accordingly well-placed to make appropriate assessments about the circumstances he was dealing with.
• He was the only staff member who was with the two students throughout the entire time that they were together at the end of the school day on the afternoon of 23 October. As a consequence he was again best placed to make an appropriate assessment about how the situation should be handled.
• He also accompanied one of the students to the North Melbourne railway station as he left the Centre to travel to his home, and this again reinforced his view that the interaction between the two students on that day was at an end.
• A number of other staff members also witnessed various interactions between the two students at different times on 23 October, which gave rise to various responses and reactions. However, none of them considered it necessary to provide an Incident Report in response to what they had witnessed. It is acknowledged in this context that Mr Cowper had more knowledge about the background and history of at least one of the students than the other teachers. However, it can be argued that this also placed him in a better position to make assessments about how to deal with the situation that confronted him. It also adds weight to the conclusion that Mr Cowper was judged more harshly than the other staff members. If his failure to provide an Incident Report justified his employment being terminated then it could have been expected that the same failure by other staff members would also have warranted, at least, some form of disciplinary action being taken in regard to them.
• If the assault on the evening of 23 October had not occurred then I am satisfied that it is almost certain that nothing would have happened as a consequence of Mr Cowper’s actions on that afternoon. It is only with the benefit of hindsight that his actions are now being ‘second-guessed.’
• The conclusions in the investigation report attribute statements to Mr Cowper that he did not make to the investigator. These are significant discrepancies in the investigation report, which ultimately found that it was “reasonable for the Decision Maker to make a finding of Substantiated” in respect of both of the allegations levelled at Mr Cowper. The conclusions in the report were also clearly influential in contributing to the Centre’s decision to terminate Mr Cowper’s employment.
(b) whether the person was notified of that reason
[154] The evidence makes clear that Mr Cowper received an email on 8 June 2018 notifying him that his employment had been terminated, and setting out the reasons for that decision. However, he also claims that the email contained additional details and allegations not previously put to him. He also states that he was not provided with copies of memos or text messages referred to in the email.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[155] The evidence sets out in considerable detail what occurred in the period between 23 October 2017 and 8 June in the following year when Mr Cowper was finally dismissed from his employment. He claims he was denied procedural fairness during this time by being prevented from having access to all of the material relied on by the Centre in coming to its decision to terminate his employment. He also refers to the delays in the investigation process, and to the investigator’s failure to provide copies of the transcripts of interviews conducted during the investigation process, despite what had been agreed to previously. He also submits that evidence that was ultimately relied on as the basis for the findings of the investigation was withheld from him.
[156] Mr Cowper acknowledges that he was given some detail about the allegations made against him, and was provided with various opportunities to respond. However, he also claims that he was significantly disadvantaged as part of this process by the decision to withhold evidence gained during the investigation, and by the decision to not provide him with a copy of the investigation report.
[157] He also takes issue with the delays that occurred in the investigation process, noting that other staff members were interviewed by the investigator in the period leading up to Christmas 2017, whereas he was not interviewed until early in February in the following year.
[158] The Centre submits, in response, that Mr Cowper was made aware on several occasions about the nature of its concerns and was also informed about the possible disciplinary action being contemplated. He was, in turn, provided with various opportunities to respond to those concerns, and to the possible action that was being considered in response, before any final decision was arrived at. It also submits that he was not disadvantaged by its refusal to provide him with a copy of the investigation report.
[159] It also submits that the delays in the investigation process were due, in large part, to circumstances beyond its control. It was, firstly, required to wait until the Police gave approval for it to commence its investigation. This was not received until early in December 2017. Secondly, Mr Cowper took a period of annual leave in January, which prevented him from being interviewed during this time. It also rejects any suggestion that the outcome of the independent investigation was in any way predetermined.
[160] I am satisfied, in conclusion, that Mr Cowper was provided with various opportunities, on more than one occasion, to respond to the claims and allegations made about him. However, it is also clear that he was not given access to the totality of the materials relied on by the Centre in coming to its decision to terminate his employment including, in particular, the investigation report. It is acknowledged, in response, that employees are often not provided with access to reports compiled by an external investigator, or to witness accounts, that are then relied upon by an employer as the basis for a decision to terminate an employee’s employment. The failure to provide these materials is usually justified on the basis that those individuals, who provided accounts or statements as part of these processes, did so on the basis that they would remain confidential. This is understood and acknowledged. However, at the same time an employee’s frustration at not having access to these materials can also be understood, particularly because of the difficulty in then providing a comprehensive response to the allegations being made about them.
[161] The reasons for the delay in the investigation process are also acknowledged. However, it is unfortunate in terms of perceptions about the balanced nature of the process that other staff members were initially interviewed by the external investigator in December 2017, whereas Mr Cowper was not interviewed until around six weeks later.
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
[162] There is no suggestion of any refusal by the Centre to allow Mr Cowper to have a support person present in any discussions relating to his termination, and he did in fact attend various meetings accompanied by a support person.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[163] There is no evidence indicating that Mr Cowper had been warned about anything to do with the circumstances that led to his dismissal, prior to his termination.
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal
[164] I am satisfied that it is appropriate to deal with the above matters together. The Centre is a significant organisation that is also part of a larger network. It also had access to legal and other advice as part of the process leading to the termination of Mr Cowper’s employment. It can be expected as a consequence to be aware of the appropriate procedures to be followed in terminating the employment of an employee.
(h) any other matters that the FWC considers relevant
[165] It is clear Mr Cowper’s dismissal has had a significant effect on him financially, emotionally, and perhaps in other ways as well. He appears to have gained much satisfaction from the work he was involved in, and was committed to the students in his care.
Conclusion
[166] I have had regard to each of the matters in s.387 that the Commission is required to take into account. I am satisfied, in response, that in all the circumstances Mr Cowper was unfairly dismissed in that his dismissal was at least harsh and unreasonable. In coming to this conclusion I have had particular regard to the conclusions reached in regard to “valid reason,” and to whether Mr Cowper was given an appropriate opportunity to respond to the totality of the material relied upon as the basis for the decision to terminate his employment. I am now required to consider what is an appropriate remedy in the context of the provisions contained in ss.390 and 392.
Remedy
[167] Section 390 of the Actprovides as follows:
“(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.” 57
Compensation
[168] Section 392 of the Act states:
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.” 58
[169] Mr Cowper wants to be reinstated to his position at the Centre. As indicated already he has had considerable experience in working with young people who are dealing with various social and behavioural issues. He is clearly dedicated to this work, and no questions have been raised about his commitment to the welfare of the students in care.
[170] He also indicated in his witness statement that he holds no ill will toward anyone associated with the management of the Centre, and he was always prepared to maintain and comply with the policies and procedures in place. He also stated that he would never deliberately disregard a workplace policy or procedure, particularly in circumstances where such action would have negative consequences for a student.
[171] He also submits that the possibility of him being reinstated was not ruled out as a option by those witnesses who gave evidence on behalf of the Centre, although it was acknowledged by Ms Pretto, for example, that some training and reorganisation might be required if this was to occur.
[172] The Centre submits, in response, that there is a clear loss of trust and confidence between management and Mr Cowper in circumstances where trust and confidence is a paramount requirement, given the vulnerable nature of the students. In its submission there are accordingly real issues about the practicality of reintegrating Mr Cowper into the workplace.
[173] Previous decisions of the Tribunal have clearly acknowledged that trust and confidence is a necessary ingredient in any employment relationship, and where trust and confidence is lost reinstatement may be impractical. However, the same authorities have also held that the rationale for the loss of trust and confidence must be sound and rationally based.
[174] In Perkins v Grace Worldwide (Aust) Pty Ltd 59 the Full Court of the Industrial Relations Court of Australia came to the following conclusion:
“Trust and confidence is a necessary ingredient in any employment relationship… So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.
…
Each case must be decided on its own merits … In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive.
…
It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer’s own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.” 60
[175] In addition, in the decision in Australian Meat Holdings Pty Ltd v McLaughlin 61 a Full Bench of the Commission concluded that:
“We accept that the question of whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate. It is one factor to be taken into account, but it is not necessary conclusive.” 62
[176] I am satisfied that relationships based on trust and confidence are of particular importance in the present matter, given the nature of the students that the Centre and its staff are responsible for. I am accordingly concerned about the claimed loss of trust and confidence, and whether the consequences of this are such that an order for reinstatement is not appropriate. It is also an unfortunate consequence, as is often the case in these matters, that the nature of the relationship between Mr Cowper and others at the Centre has clearly been diminished and placed under further strain by all that has occurred post 23 October 2017, including the circumstances involved in the conduct of these proceedings.
[177] The Commission has had the opportunity of witnessing the demeanour and attitude of those witnesses who gave evidence in the proceedings. Those observations suggest that a significant rift now exists in the relationship between Mr Cowper and the staff members that he would be required to deal with and report to if he were to be reinstated. I have also emphasised the particular importance of relationships based upon trust and confidence in the nature of the work performed at the Centre. It is unfortunate that a person who clearly appears to be a dedicated and committed employee is to be denied the opportunity of continuing to work in what is clearly a difficult but much-needed role. Nevertheless, I am not prepared to make an order for reinstatement based on what I consider to be the breakdown in the necessary relationship of trust and confidence.
[178] It is accordingly necessary to turn now to the question of what amount of compensation might be appropriate. Mr Cowper provided some limited details in his witness statement about his attempts to mitigate his loss since being terminated. However, the parties were of the view that it was appropriate, if required, for further submissions and evidence to be provided about any consideration of an appropriate amount of compensation.
[179] The parties are also obviously at liberty to enter into discussions in an attempt to resolve this question on a mutually agreed basis. However, in the event that that is not possible I proposed to give the parties the opportunity of providing further submissions and evidence about the issue of compensation. It is suggested that this can be done by the provision of written submissions, however, the Commission is open to the possibility of a further brief hearing if requested by the parties.
[180] However, at this point it is proposed that the matter be dealt with on the following basis. The Applicant is to be provided with seven days from the date following the day after this decision to file and serve further evidence and submissions in regard to the issue of compensation. The Respondent is then to be provided with a further period of seven days to file and serve any submissions and evidence in response. The Commission then undertakes that it will determine the outstanding issue in regard to compensation within a further timeframe of seven days. This matter has obviously been outstanding for some time and this timeframe will enable it to be brought to a conclusion within an understood timetable. However, the Commission is also open to any other suggestions from the parties as to how the issue of compensation might be dealt with. However, in the meantime formal Directions confirming the above arrangements will be provided to the parties.
COMMISSIONER
Appearances:
R Preston of Counsel for the Applicant.
M Norton of Counsel for the Respondent.
Hearing details:
2018.
Melbourne:
November 19 to 21.
Printed by authority of the Commonwealth Government Printer
<PR712722>
1 Fair Work Act 2009 (Cth) s 385.
2 Fair Work Act 2009 (Cth) s 387.
3 Exhibit AC3 at [22].
4 Ibid at [31].
5 Ibid at [37].
6 Ibid at [45].
7 Ibid at [59].
8 Ibid at [117].
9 Ibid.
10 Ibid at [122].
11 Ibid at [125].
12 Ibid.
13 Ibid at [154].
14 Transcript at PN1250.
15 Transcript at PN1315.
16 Transcript at PN1316.
17 Transcript at PN1321.
18 Exhibit SJ6 at [22].
19 Ibid at [37].
20 Ibid at [52].
21 Exhibit SJ9 at [5].
22 Ibid at [6].
23 Ibid at [8].
24 Exhibit SJ7 at [3].
25 Ibid at [9].
26 Ibid at [11].
27 Ibid at [13].
28 Ibid at [14].
29 Exhibit SJ8 at [5].
30 Ibid.
31 Ibid.
32 Ibid at [14].
33 Transcript at PN1936.
34 Respondent’s Outline of Submissions, dated 24 September 2018 at [31].
35 (1995) 185 CLR 410.
36 Ibid at 465.
37 [2011] FWAFB 7498.
38 Ibid at [20].
39 (1995) 62 IR 371.
40 Ibid at 373.
41 [2011] FWAFB 1166.
42 Ibid at [24].
43 [2013] FWCFB 6191.
44 Ibid at [58].
45 Print R4471.
46 Ibid at [19].
47 Exhibit AC1 at 2.8.
48 Ibid at 2.12.
49 Exhibit SJ7 at [3].
50 Ibid at [13].
51 Exhibit AC3 at [22].
52 Ibid at [31].
53 Exhibit AC1 at 4.14.
54 Ibid.
55 Exhibit AC1 at annexure 15.
56 Exhibit AC1 at annexure 18.
57 Fair Work Act 2009 (Cth) s 390.
58 Fair Work Act 2009 (Cth) s 392.
59 [1997] IRCA 15 (7 February 1997).
60 Ibid.
61 Print Q1625.
62 Ibid at page 17.
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