Annabel Doherty v New England and Western Tenants Advice and Advocacy Service Inc

[2013] FWC 6385

[2013] FWC 6385 Note: An appeal pursuant to s.604 (C2013/6060) was lodged against this decision - refer to Full Bench decision dated 21 November 2013 for result of appeal.

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Annabel Doherty
v
New England and Western Tenants Advice and Advocacy Service Inc
(U2012/6647)

DEPUTY PRESIDENT BOOTH SYDNEY, 30 AUGUST 2013

Application for an unfair dismissal remedy - valid reason for dismissal - whether dismissal harsh, unjust or unreasonable - remedy - amount of compensation.

[1] In this matter Ms Annabel Doherty (the applicant) asks the Fair Work Commission (the Commission) to exercise its discretion under s.394 of the Fair Work Act2009 (the Act) to grant a remedy for unfair dismissal in relation to the termination of her employment by summary dismissal from New England and Western Tenants Advice and Advocacy Service Inc (NEWTAAS or the respondent) on 14 March 2012.

[2] The application was lodged on 28 March 2012 and a telephone conciliation was conducted on 30 April 2012. The matter was not resolved at conciliation and was listed for hearing before me on 10-12 July 2012; 10-11 September 2012 and 7-8 February 2013 in Armidale, NSW and on 4-5 April 2013 by telephone. By agreement of the parties conciliation took place between 12-30 July 2012 but the matter was unable to be resolved.

[3] Submissions and witness statements were received from the applicant and the respondent prior to the first day of hearing pursuant to directions issued by Fair Work Australia (FWA), as it then was, and Orders Requiring a Person to Attend and Orders Requiring Production of Documents were issued. Not all orders were complied with and the applicant says that offences under the Act have been committed. This decision does not address this submission as the applicant would need to pursue such allegations in another jurisdiction. 1

[4] Witness evidence was given for the applicant by Ms Doherty, Ms Nistelrooy, Dr LeBlanc, Ms Thomas, Ms Golding, Mr Curcuruto, Ms Wyatt, Mr Fry, Ms Webster, Ms Littlejohn, Ms Sutherland and Ms McDermott.

[5] Witness evidence was given for the respondent by Ms Henzell, Ms Pankhurst, Ms Kerklaan, Mr Graham and Mr Scholes-Robertson.

[6] An inspection of the NEWTAAS office at Minto Building 3, 161 Rusden Street Armidale NSW was undertaken by the Commission and the parties on 7 February 2013.

[7] Closing written submissions were received from the applicant on 9 May 2013 and from the respondent on 30 May 2013 with a reply from the applicant on 11 June. A final short comment on the applicant’s submissions in reply was received from the respondent on the same day.

[8] By permission of the Commission pursuant to s.596 of the Act Ms Doherty was represented throughout the proceedings by Mr Mark Daly, solicitor and NEWTAAS was represented throughout the proceedings by Mr Chris McArdle, solicitor.

[9] I have considered all of the submissions and evidence, including the 97 exhibits tendered in this case. My decision does not refer to all of this material or every argument advanced by the applicant or the respondent. Rather, I have referred to those matters that I regard as pertinent to my statutory obligations and my decision in this matter.

[10] The applicant says that the respondent has committed offences pursuant to Part 3 -1 of the Act (General Protections). This decision does not address this submission as the applicant has not made an application under s.365 of the Act.

Contentions

[11] The applicant contends that her dismissal was harsh, unjust and unreasonable and thus unfair and that far from having conducted herself in a manner that justified summary dismissal, she was the subject of a “systematic plan to get rid of [her]”. 2 The applicant contends that the reasons for the termination are not valid because they are either false or factually incorrect.3

[12] The respondent contends that they had a valid reason to dismiss the applicant and that her conduct justified summary dismissal. They contend that far from being harsh, unjust or unreasonable her dismissal was the only sensible response of an employer to an employee who was insubordinate and, particularly in the light of information discovered after the dismissal, in whom trust and confidence was irretrievably lost.

[13] At the time of the dismissal the respondent was a small business employer as defined in s.23 of the Act however the respondent does not seek to rely in these proceedings on the Small Business Fair Dismissal Code pursuant to s.388 of the Act.

Factual circumstances

[14] The respondent complains about the applicant’s conduct in this matter, rather than her performance, which is not at issue.

[15] However, the respondent does not complain of conduct on one occasion or during one incident, but conduct during a series of events over a number of years.

[16] The applicant on the other hand contests the fact of or the conclusions drawn from almost each and every circumstance.

[17] Set out below is the context of and the key events arising in the history of the applicant’s recent employment with the respondent. Where a conflict exists concerning a significant event it is noted. A conclusion will be drawn concerning the conflicts, for which findings are considered relevant, later in my judgement.

[18] NEWTAAS is an organisation that provides free information and advice on tenancy law, advocacy, community education, Consumer Trader and Tenancy Tribunal (CTTT) assistance, support and representation to residential tenants in the New England, North West and Far West New South Wales. It has offices in Armidale, Dubbo and Broken Hill. In Armidale it has a stand-alone office and in Dubbo and Broken Hill it is co-located with other community services.

[19] In 2010-11 NEWTAAS had 1088 new client contacts, opened 125 new files, assisted 189 clients in the CTTT and took 2940 calls to its 1800 number.

[20] The applicant was employed in October 2002 by the North and North West Community Legal Service (NNWCLS). NNWCLS was provided with funding by the NSW Government to provide the service now provided by NEWTAAS. Ms Doherty was employed at this time as the first Tennant Advocate. She was employed part-time.

[21] At the time of the dismissal of the applicant in March 2012 NEWTAAS employed Ms KerryAnn Pankhurst (Service Manager, absent on long service leave), Ms Annabel Doherty (Tenant Advocate), Mr Christopher Curcuruto (Tenant Advocate) and Mr Neil Scholes-Robertson (part-time Finance Officer) in Armidale, Ms Arna Kerklaan (Acting Service Manager) moving between Dubbo and Armidale, Ms Sherry McDermott (Tenant Advocate) in Dubbo and Ms Katrina Webster (Tenant Advocate) in Broken Hill and possibly Ms Rachael Wilkie (it was not made clear in submissions whether she was still employed and if so where; nothing turns on it) - a total of 7 or 8 employees. 4

[22] NEWTAAS is a not-for-profit association, incorporated pursuant to the Associations Incorporation Act 2009 (NSW) and funded by the Office of Fair Trading of NSW (OFT) under a funding contract, from the funds generated from the Rental Bond Interest Account and the Property Services Statutory Interest Account. In the financial year 2011-12 NEWTAAS received $497,730 in core funding and a grant of $25,125. In that year NEWTAAS had retained profits of $69,070.

[23] NEWTAAS is part of a network of tenancy advice services that receive guidance from the Tenants Union of NSW which is the peak resourcing body for the statewide network of Tenants Advice and Advocacy Services.

[24] NEWTAAS is governed by a Management Committee comprised of a Chair and other committee members who volunteer without remuneration to serve on this committee. At the time of the dismissal of the applicant the committee members were Ms Marjorie Henzell (Chair from 27 September 2011), Mr David Graham (Treasurer and past Acting Chair from 7 December 2010 to 27 September 2011), Ms Christine Foord (Secretary), Ms Fiona Bailey, Ms Melody van Nistelrooy and Mr Jim Foord. The Chair prior to Mr Graham’s position was Professor Brian Simpson who resigned on 7 December 2010.

[25] In 2009 NNWCLS decided to discontinue providing the service now provided by NEWTAAS and in July 2010 NEWTAAS incorporated as a separate organisation. The employees providing the service, including the applicant, were offered employment with the new organisation and on 1 July 2010 they received letters of offer. Ms Doherty accepted the offer with continuity of service and terms and conditions of employment.

[26] The terms and conditions of employment of employees of NEWTAAS were established by the Social, Community, Home Care and Disability Services Industry Award 2010 and the North and North West Community Legal Service Enterprise Agreement operating on and from 1 July 1998 (the Enterprise Agreement). The Enterprise Agreement was not a workplace instrument pursuant to the Act, having never been registered or approved by the Commission or its predecessors. It formed part of the contract of employment by virtue of the letter of appointment of 1 July 2010. Clause 42 (Parenting leave) contained an entitlement to 12 weeks paid maternity leave to be taken within the 52 week period of leave available to employees with more than 12 months service. The Enterprise Agreement was formally rescinded by the Management Committee with one month’s notice effective 15 March 2012.

[27] In April 2010 the employees providing the NEWTAAS services from within NNWCLS wrote to its board with 14 grievances calling for, amongst other things, “a full audit of the operations of NEWTAAS” and a schedule of meetings to be held to resolve the grievances. The grievances (the staff grievance) included terms and conditions of employment, operational issues and a range of matters concerning employee appraisal and development. The applicant initiated the process of elevating the employee concerns. The applicant gave evidence to the effect that her relationship with the Service Manager, Ms Pankhurst, began to deteriorate at this time as a result of the staff grievance. 5

[28] The applicant contends that the staff grievance was never properly addressed and lapsed only because the employees concerned either withdrew from it or were no longer employed by NEWTAAS. The respondent contends that the staff grievance lapsed because the employees were “advised that if we didn’t hear anything back we would consider the matter resolved.” 6 However in an email dated 1 December 2011 the staff who were then party to the grievance communicated with the Management Committee that they did not regard the grievance as having been resolved.

[29] In December 2010 the applicant was appointed as Acting Service Manager during the absence on leave of the Service Manager. She had occupied this position in the past in the absence of the Service Manager.

[30] Three incidents occurred while she was in this position that she interpreted as indicative of lack of respect for her role. On one occasion a pay slip had not been provided to her and on another her payslip had been left open in a public place; her decision (which she reversed) to bring tenant advocates to Armidale was questioned by the Finance Officer; and Management Committee meeting dates were being considered by the Management Committee and the Finance Officer without her input being sought.

[31] A meeting of the Management Committee was scheduled for 7 December 2010 but did not go ahead due to a lack of quorum. Mr Simpson resigned from the position of Chair of the Management Committee on that day by email. The applicant was not included in a round of emails discussing whether the meeting should go ahead or not. In the event it was not cancelled and Ms Henzell and the applicant arrived for the meeting.

[32] The meeting went ahead on 14 December 2010. Following this meeting the applicant prepared a 14 page document 7 objecting to the majority of the draft minutes of the meeting on 14 December 2010 (the minutes response document), on the grounds of accuracy. She provided this document to the Acting Chair, Mr Graham, on 16 January 2011. There is a conflict between the applicant and the respondent about whether this document was placed on a shared drive on the computer system accessible to all staff and about the significance of this document and its accessibility to staff in the reasons for dismissal.

[33] Also following this meeting, in the minutes response document, the applicant lodged a grievance with the Management Committee in relation to Ms Henzell, Mr Graham and Ms Foord concerning her treatment as Acting Service Manager and her belief that her privacy had been breached due to the inaccurate recording in the minutes of the meeting of information about the staff grievance that she intended to provide privately at the conclusion of the meeting. There is no evidence about the processing of this grievance.

[34] In January 2011 she advised the Management Committee that she no longer wanted to be Acting Service Manager because she thought they had made the position untenable.

[35] On 25 February 2011 Ms Pankhurst advised the applicant that Mr Graham wanted to meet with her “the following week”. On 1 March Ms Pankhurst emailed the applicant about the proposed meeting indicating, amongst other things, that there would be no agenda provided in advance. On 17 March 2011 the applicant replied to the email indicating, amongst other things, that until she was advised of the agenda for the meeting she would not agree to attend it. I note that the applicant was on leave from 1 – 17 March 2011. The applicant says this request was consistent with the principles of natural justice cited in clause 48 (Counselling and disciplinary procedures) of the Enterprise Agreement. The respondent says this clause was not relevant to this meeting, or indeed others, in the light of the informal nature of the meeting. The agenda was not provided. The meeting did not eventuate and neither the applicant nor the respondent followed this up. There is a conflict between the applicant and the respondent about the reason for this and the significance of this in the reasons for dismissal.

[36] On 2 June 2011 the applicant came across advice in a file she was attending to that appeared to her to be incorrect. She concluded that the advice had been provided by Ms Webster and approved by Ms Pankurst. She advised Ms Pankhurst and Ms Webster of her opinion and Ms Webster replied to the applicant that she felt bullied and hurt by what the applicant had written and complained to Ms Pankhurst. Ms Webster later indicated that following communication with the applicant she no longer felt bullied and hurt and she retracted her complaint. There is a conflict between the applicant and the respondent about the significance of this in the reasons for dismissal.

[37] On 17 June 2011 the applicant was advised by the Finance Officer of a change to the salary sacrifice provisions of the Enterprise Agreement. A conversation, that became heated, took place between Ms Pankhurst, Mr Scholes-Robertson and the applicant concerning the legal effect of the Enterprise Agreement. The evidence discloses that Ms Pankhurst told the applicant that the Enterprise Agreement, in effect, had no force and the applicant was outraged by this suggestion. Arising from this, on the same day, Ms Pankhurst complained to Mr Graham about the applicant. The applicant and Ms Pankhurst later apologised to each other for their behaviour by email.

[38] On the same day Mr Graham phoned the applicant and spoke to her. He directed her to come to a meeting in his office. He said that if she refused to come “it could lead to discipline matters”. 8 The applicant did not accede to his request. She gave evidence to the effect that she had client work to attend to and she wanted to know what the meeting was about and to have a support person attend with her. The applicant phoned him back within the hour and Mr Graham hung up on her “because she was avoiding coming to a meeting”.9 Later that day a representative of the Australian Municipal, Administrative, Clerical and Services Union (ASU), Mr Fry, contacted Mr Graham on the applicant’s behalf and arranged for the meeting to be held on Monday 20 June 2011 instead of that day, Friday 17 June 2011. An agenda for the 20 July 2011 meeting was sent to Mr Fry and the applicant, however the applicant did not receive the agenda before the meeting. It had been sent to an email address provided to Mr Graham by the Service Manager which the applicant contends was on the BBS network that was not usually used for internal communication10 and was not available to the applicant from her home over the weekend. The email account usually used for internal communication was known as Groupwise.

[39] The email stated the agenda as “communications style, acting beyond your authority and work place (sic) harassment”. The applicant attended this meeting however the agenda was not available at the meeting, rather it was read out by Mr Fry. There is a conflict between the applicant and the respondent about the precision of the agenda and the significance of the meeting arrangements in the reasons for dismissal. The applicant says that she was entitled, pursuant to the contract of employment that incorporated the Enterprise Agreement, to an agenda for a meeting with a possible disciplinary consequence. The respondent says the meeting was in effect for fact finding and was not a disciplinary meeting (although refusal to attend could result in a disciplinary consequence).

[40] On 20 June 2011 the applicant met with Mr Graham. Mr Fry from the ASU attended by telephone. The matters discussed at the meeting included allegations that the applicant bullied a staff member and allegations by the applicant that she was bullied by Mr Graham and others. Mr Graham told the applicant, amongst other things, that no one on the Management Committee wanted to work with her. There is a conflict between the applicant and the respondent about the content of the meeting in the reasons for dismissal.

[41] On 5 July 2011 the applicant was subject to a staff evaluation by the Service Manager Ms Pankhurst. The record of the evaluation description 11 rates the applicant as “competent” in relation to most of the elements of her position description and concludes with the General Comment “Annabel continues to be a highly valued member of the NEWTAAS team. Her casework is of very high standards, and I rely on her to work with clients with complex needs and tenancy issues. Annabel is passionate and ethical. She is willing to raise issues service-wide and can be both critical and challenging. I value her willingness to challenge the system, but wish she’d spend more time on casework and callbacks. I appreciate Annabel’s opinion and expertise, her values and her commitment. KerryAnn says see two sections above, and recognises that Annabel travels constantly with commitments for the services for CE and Tribunal. Annabel says and she loves it!” Nowhere in the performance evaluation does it record the matters related to the meeting of 20 June 2011. It became apparent during the course of the hearing that there were discrepancies between the contents of Exhibit A41 (the document supplied by the respondent to the applicant arsing from the Order to Produce) and Attachment KAP16 to Ms Pankhurst’s Affidavit. Ms Pankhurst said it was the result of photocopying a document with both black and yellow font and she provided the original document in black and yellow to the Commission following a luncheon adjournment. I accepted this explanation during the hearing.12 In the applicant’s closing submissions it was contended that there was duplicity associated with this. It is not contended that the content of the document was compromised and my description of the content above stands.

[42] In August 2011 the applicant exchanged emails with Ms Pankhurst concerning working while on holiday. In October she sought leave without pay and was advised by Ms Pankhurst that she must take paid sick leave from that which she had accrued. These exchanges lead the applicant to believe that her relationship with Ms Pankhurst was “falling apart”. 13 Ms Pankhurst’s evidence was that from 17 June 2011, the date of the argument about the Enterprise Agreement, her attitude to the applicant changed. She said “like I had reached a fixed point where I could – I just couldn’t believe anymore that I was ever going to be able to fix things enough for her”.14

[43] In October 2011 Ms Pankhurst was preparing to take long service leave for the period October 2011 to April 2012. Ms Kerklaan, who had up to that time been a member of the Management Committee, was appointed as Acting Service Manager. Ms Kerklaan had no experience as a tenant advocate prior to being employed by NEWTAAS

[44] On 18 October 2011 the applicant returned to work having had approximately two months annual leave and a month’s sick leave. The applicant suffered morning sickness from pregnancy.

[45] On this day Ms Pankhurst introduced Ms Kerklaan to the applicant. There is a difference between the applicant’s and Ms Pankhurst and Ms Kerklaan recollection of the conversation. The applicant says Ms Pankhurst did not introduce Ms Kerklaan as the Acting Service Manager. She says her response to the introduction was “Hullo. Oh, you’re on the [management committee]” 15 and she changed the subject because she was uncomfortable following Mr Graham’s statement that no one on the Management Committee wanted to work with her. Ms Pankhurst says Ms Kerklaan was introduced to the applicant as the Acting Service Manager and the applicant said “You can’t do that, you’re on the committee”.16 Ms Kerklaan corroborates the use of words to this effect.17 The applicant says she later discovered that Ms Kerklaan was to be the Acting Service Manager in Ms Pankhurst’s absence and she sought her out and apologised for her approach to the introduction. The difference concerning the actual words used was not discussed between them and was not raised with the applicant until a meeting on 25 October 2011.

[46] Later that day the applicant wrote to the Chair of the Management Committee, Ms Henzell, requesting a meeting to discuss the matters the subject of the meeting on 20 June 2011 with Mr Graham, in particular his remark that no one on the Management Committee wanted to work with her. Ms Henzell replied proposing a meeting on 20 October 2011 along with the Service Manager and the Acting Service Manager. The applicant replied that she was not available on 20 October 2011, offered other dates, and said that she preferred a one on one meeting confined to Mr Graham’s remark that no one on the Management Committee wanted to work with her. Ms Henzell replied by email on 21 October 2011 directing the applicant to attend a meeting on 25 October 2011 with an agenda set out in the email.

[47] Around this time a new administration policy was determined by the Management Committee addressing the accumulation of time in lieu and fixing employees’ start and finish times. The new administration policy was rescinded in December 2011 and yet minutes of the Management Committee of 17 January 2012 show a report about the Acting Service Manager giving clear direction to staff about complying with it.

[48] Ms Kerklaan says that on 19 October, in light of this new policy, she was encouraging employees to finish work and locking up. Ms Kerklaan says the applicant grabbed the keys out of her hand saying words to the effect of “some of us need to go to the toilet before we leave”. Ms Kerklaan says she heard a “bang from down the hall” 18 and then found that the applicant had left the premises through the external door, leaving the light on and a door between her office and hallway open. The applicant denies snatching the keys out of Ms Kerklaan’s hands and the evidence of Mr Curcuruto is to the effect that he was present in the office and did not see this action nor hear a door slam. His recollection was that the applicant said goodnight and left through her external door which was her usual practice.19 There is a difference between the applicant and the respondent about the details of this incident and about its significance in the applicant’s termination.

[49] On 25 October 2011 a meeting was held between Ms Henzell, Ms Pankhurst, Ms Kerklaan and the applicant with Ms Sutherland from the ASU on the phone as a support person for the applicant. This meeting was the subject of an agenda although the applicant complains that the discussion in the meeting was not confined to the agenda, the allegations were emailed after the meeting and the concern about the words used in the introduction on 18 October 2011 were not disputed until this meeting. There is a difference between the applicant and the respondent about whether this meant that the applicant was not accorded procedural fairness. A record of the meeting written by Ms Henzell was provided to the applicant on 31 October 2011. The applicant disputes much of its content. The applicant prepared a statement that she read from at the meeting based on the agenda provided, but did not give it to the participants at the meeting. The respondent says that she agreed to provide it and requested that it be placed on her personnel file.

[50] On 7 December 2011 she was asked to provide the statement to the Acting Service Manager. A letter was drafted dated 13 December 2011 from Ms Henzell directing the applicant to supply the statement however it was not sent to the applicant, the statement being received on that day. Allegations about the conduct of the applicant were raised orally at the meeting but not provided in writing to the applicant until after the meeting. The applicant prepared a written response to these allegations after the meeting and provided it along with the statement she prepared before the meeting, which had an addendum written after the meeting by the applicant. She then provided both documents to the Acting Service Manager in response to her request for the statement. There is a difference between the applicant and the respondent about the significance of the applicant providing these documents rather than the precise statement read out at the meeting. It became apparent during the hearing of this matter that the allegation that the statement was only supplied after the applicant received a letter from Ms Henzell was not correct and the reference in the letter of termination was wrong.

[51] At this meeting a prior agreement between the Service Manager and the applicant to the applicant taking an extended lunchbreak in order to go swimming and making up time, by starting work early or working to a later finish time, was retracted.

[52] On 20 February 2012 Dr LeBlanc of Northern Links NSW Inc (another not for profit tenants participation service, located in offices adjacent to NEWTAAS) initiated a complaint “on behalf of the staff at NEWTAAS” 20 to OFT. Ms Henzell gives evidence that on 5 September 2012 she met with officials of OFT and was advised, in effect, that OFT have no concerns with the operation of NEWTAAS.

[53] On 22 February 2012 the applicant authored an email to Mr Curcuruto and Ms McDermott in which, amongst other things, she criticised and made an abusive remark about the Chair of NEWTAAS in relation to the manner of termination of another employee; referred to her anticipation that as a result of the actions of Dr LeBlanc the current members of the Management Committee will be removed and replaced by new members; referred to “the game I am playing with Arna” referring to Ms Kerklaan and referred to her criticism of the Management Committee being made deliberately in earshot of Ms Kerklaan. The applicant suggested that the recipients delete the email from the NEWTAAS computer system once read and advised them on how to do this.

[54] The applicant’s evidence about the email included a contention that, in effect, the ferocity of the language in the email was due to the context. The context included that Ms Wyatt was in hospital recovering from an incident, said to be self-harm, and had requested to be left alone but had been telephoned by Ms Kerklaan and visited by Ms Henzell in connection with the terms of her redundancy. The evidence supports the fact of the phone call and the visit. The applicant conceded in cross examination that she did not seek to discuss her concerns about this directly with Ms Henzell.

[55] The respondent contends that the email is the ‘smoking gun’ and reveals the extent to which the applicant was engaged in a campaign to undermine NEWTAAS. In particular the respondent refers to the provision of the Management Committee members personal email addresses to Ms LeBlanc. Whilst this is not resisted by the applicant she resists the inference that she was trying to hide the fact that she had done so and says this was not connected to the complaints about the management and governance of NEWTAAS. The applicant gives evidence that that she was supportive of the removal of the Acting Service Manager, Ms Kerklaan, the Chair, Ms Henzell, Mr Graham and Ms Foord but contends that she was not seeking to undermine the organisation, NEWTAAS, rather she was trying to “protect the service”. 21

[56] This email was not known to the respondent at the time of the dismissal of the applicant however it is an accepted principle that conduct that occurred prior to a dismissal but was discovered after a dismissal may be considered by the Commission in its consideration of whether there was a valid reason for the dismissal. 22 Although not cited in the reasons for dismissal the respondent relies upon this email to fortify their contention that there was a valid reason for the applicant’s dismissal. There is a conflict between the applicant and the respondent about the significance of this email in justifying the dismissal of the applicant.

[57] On 28 February 2012 there was an incident in the Armidale office of NEWTAAS between the applicant and the Acting Service Manager, Ms Kerklaan. The applicant was in her office with the door closed and locked speaking on the telephone with Ms McDermott who was in the Dubbo premises of NEWTAAS about, according to the applicant, “what we both agreed to be serious mismanagement of the service”. 23 The applicant was critical of Ms Kerklaan and the Management Committee of NEWTAAS and the word “stupid” was used in relation to Ms Kerklaan.

[58] The applicant says she saw the door handle go up and down very quickly and the lower portion of her door move at the same time as she heard loud banging. The loud bang was also heard by Ms McDermott over the telephone. The applicant says, in effect, that she formed the view that someone was kicking her door. The applicant called for help and Mr Curcuruto attended the scene and unlocked the door. Ms Kerklaan says she banged some doors closed in anger arising from what she had heard the applicant say about her and some filing trays fell to the ground. The applicant believes that she heard Ms Kerklaan admit that she kicked the door. 24 Ms Kerklaan’s evidence is that she said that she did not kick the door. This was corroborated by the evidence of Mr Curcuruto25 and Ms McDermott,26 although it was Ms McDermott’s evidence that Ms Kerklaan admitted to hitting the door.27 Mr Kerklaan’s evidence was that she could not have kicked the door due to a chronic injury to her foot. There is no doubt that there was loud noise and the applicant and Ms Kerklaan shouted at each other. The police attended the premises following a phone call from Dr LeBlanc. The applicant made a report to the police about the incident. There was no physical evidence of the alleged incident and the police did not lay any charges. After the incident the Chair offered counselling support to Ms Kerklaan but not to the applicant, Ms McDermott or Mr Curcuruto. There was no independent investigation of the incident.

[59] The applicant attended her doctor twice after this incident. On the first occasion, 1 March 2012, she was provided with a Workcover Medical Certificate citing “verbal assault (sic) by co worker” indicating she was fit for suitable duties (being “not to be in the same office as the person who assaulted her”) from 1 March 2012 to 16 March 2012 with a treatment review date of 16 March 2013. On the second occasion, 8 March 2012, she was provided with a Workcover Medical Certificate citing “Bullying by co worker” indicating she was unfit to work from 8 March 2012 to 23 March 2012 with a review date of 23 March 2012. The applicant made a workers’ compensation claim in relation to medical expenses and absence from work arising from the incident. It was denied by the insurer, QBE.

[60] A voicemail retrieved by Ms Henzell on 6 March 2012 captured some of the aftermath of the ruckus of 28 February 2012 however it did not shed any further light on the matters in dispute.

[61] There is a difference between the applicant’s and Ms Kerklaan’s version of events. In particular there is a difference about the sentence in which the word “stupid” is used and whether the door was kicked, hit or through other means moved, during the incident. There is a difference between the applicant and the respondent about the significance of this incident, in particular the report to the police, in the reasons for dismissal.

[62] On 29 February 2012 the Acting Service Manager, Ms Kerklaan directed the applicant to move from one office to another leaving the office furniture, aside from a filing cabinet, in the vacated office in situ and utilising the office furniture in the new office. The applicant, whilst indicating that she would comply with the direction, objected strenuously, in particular to the outcome that she would need to relinquish her office furniture which she regarded as “specifically designed for my working needs” and because she was due to go on maternity leave on 24 March 2012. 28 The desk the applicant was to use in the new office was a narrow, tall and shelved computer tower desk compared to the wide flat open desk in her previous office. She said that she could not sit at the new desk and work comfortably with her pregnant body shape.

[63] The applicant packed up the items from her office, including client files, by 1 March 2012 and put them into her car. She told the Acting Service Manager by email on the evening of 1 March 2013 that she would be back in the office the next day in the afternoon to continue to work on a client file and gave instructions as to exactly how her office was to be configured to allow her to continue her office set up on 6 March 2012. In the event the applicant was absent from work on 6 and 7 March 2012, returning on 8 March 2012. She advised the office that she had the files. 29 The files she had packed up on 1 March 2012 were still in her car and she removed them and put them into her new office on 8 March 2012. There is conflict between the applicant and the respondent about the reason for the move (a conflict of interest between the Finance Officer and NEWTAAS; the convenience of SM and FO working in the same office; safety for staff during client interviews), some of the aspects of the train of events and about their significance in the reasons for dismissal, in particular the absence from the office of NEWTAAS files. The applicant gave evidence to the effect that she believed the direction to move offices was retaliation in response to the incident of the previous day.30 There is no explicit evidence of this, inferences would have to be drawn, and I conclude that there were a number of sound reasons for the move but the timing was unfortunate and the response of the applicant was predicable in the circumstances. A prudent manager would have waited until the applicant went on maternity leave to rearrange the office accommodation of the remaining employees.

[64] Notwithstanding the Workcover Medical Certificate indicating she was unfit to attend work from 8 March 2012 to 23 March 2012 the applicant attended the office on 9 March 2012 and advised the Service Manager and the Finance Officer by email that she would be willing to remain at work to 23 March 2012 if Ms Kerklaan was not on the premises or she could work from home.

[65] This offer was not taken up and on 14 March 2012 a letter from the Chair of NEWTAAS, Ms Henzell, dated 14 March 2012 with the subject heading “Notice of Termination Effective Immediately” was sent by courier to the applicant’s home. The letter invited the applicant to “provide satisfactory responses to the matters in this letter within 7 days” with the prospect of the respondent “reversing our decision to terminate you without any loss of employment continuity”. 31 The letter was prepared by Ms Henzell.

[66] Accompanying this letter was a letter offering the applicant 12 weeks “maternity payment” conditional upon acceptance within 14 days from 14 March 2012 of a “document reflecting the finality of the agreement”. 32 The applicant replied to the letter of 14 March 2012 on 23 March 2012 enclosing a detailed response to each of 9 points in the letter of 14 March 2012.

[67] Ms Henzell replied on 5 April 2012 that the Management Committee had considered this response but had decided to “adhere to its original decision” 33 to terminate the applicant’s employment from 14 March 2012. It became apparent during the hearing of this matter that there was more than one version of the letter of 5 April 2012. The version supplied along with the affidavit of Ms Henzell was not the final draft and differs from the letter that was supplied to the ASU34 and is contained in the Affidavit of Annabel Doherty, Exhibit A, as Attachment E1. Apart from the tone of the final letter being more critical of the applicant than the draft, and the addition of the decision not to supply the applicant with a reference, nothing turns on the mistake.

[68] At the time of her dismissal the applicant was in her third trimester of pregnancy (38 weeks) and her date of confinement was anticipated to be 31 March 2012. Her son was born on 4 April 2012, the day before she received the second letter concerning her termination. This was her second child, her first baby having died, due to a medical condition, two hours after birth, on 19 August 2009. It is reasonable to infer that this was the reason why the applicant was particularly concerned about her health in the final stages of her pregnancy.

Legal framework

[69] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 (Unfair Dismissal) of the Act. In this matter there is no contest that Ms Doherty is a person who is protected from unfair dismissal pursuant to s.382 of the Act and I must apply ss.385-387 of the Act, which read as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.

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.”

[70] I must apply my mind as to whether Ms Doherty was unfairly dismissed. There is no dispute that she was dismissed so s.385(a) of the Act is satisfied. The respondent is a small business employer however they do not rely on the Small Business fair Dismissal Code and, therefore, s.385(c) is not relevant. There is no contention that this is a case of genuine redundancy so s.385(d) does not apply. Therefore, in determining whether the applicant was unfairly dismissed, I must consider whether the dismissal was harsh, unjust or unreasonable.

[71] If I find that Ms Doherty was unfairly dismissed I then must apply the provisions of Division 4 of Part 3-2 of the Act in order to determine the appropriate remedy as between reinstatement or the payment of compensation.

[72] Guidance as to the meaning of the expression “harsh, unjust and unreasonable” can be found in the decision of Sheppard and Heery JJ in Bostik (Australia) Pty Ltd v Dimitrja Gorgevski (No 1) 35where their Honours said, in relation to the wording of Clause 9 of the Manufacturing Grocers Award 1985:

“These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge’s view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee’s misconduct.”

[73] Also of relevance is that the expression is not intended to be a composite, rather each word in the expression stands alone. In Byrne v Australian Airlines Pty Ltd, 36 McHugh and Gummow JJ said:

“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.”

[74] In considering whether a dismissal was harsh, unjust or unreasonable, I must take into account, amongst other things, 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)

[75] Guidance as to the meaning of the term “valid reason” is provided by Selvachandran v Petron Plastics Pty Ltd. 37In that decision of the Industrial Relations Court of Australia Northrop J said:

“In its context in subsection 170DE(1), the adjective ‘valid’ should be given the meaning sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of subsection 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 requirements 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 the employee are treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, unreported, when considering the construction and application of section 170DC.”

[76] Section 170DE(1) of the Industrial Relations Act 1988 was in broadly similar terms to the corresponding provisions of the current Act.

[77] The Act requires an examination of whether there was a valid reason for dismissal, not whether the reasons given to the employee for the dismissal were valid.

[78] In Aperio Group (Australia) Pty Ltd v Sulemanovski, 38 a Full Bench of FWA said at paragraph 21:

“It is apparent that in applying s.387(a) of the Act, Commissioner Ryan limited his consideration to whether the reason that Mr Sulemanovski refused to sign the undertaking was a valid reason for the termination of the employment. The Commissioner was obliged to consider more broadly whether there was a valid reason for the dismissal related to Mr Sulemanovski’s capacity or conduct, 36 as required by s.387(a) of the Act. In restricting his consideration to whether the refusal to sign the undertaking was a valid reason for the termination the Commissioner erred, acting upon a wrong principle and misapplying the statutory requirements.”

[79] This decision is consistent with the decision of the Full Bench of the Australian Industrial Relations Commission (AIRC) in MM Cables (A Division of Metal Manufacturers Ltd) v Zammit 39 where it said at paragraph 42:

“We think that there are two difficulties in the approach adopted by the Commissioner to the question of whether there was a valid reason for Mr Zammit’s termination of employment. First, the Commissioner seems to have confined himself to determining whether the reason given for Mr Zammit’s termination was a valid reason. The question in s.170CG(3)(a) is not so limited. Rather the Commission is obliged to consider whether there was a valid reason for the termination - that inquiry is not limited to the reason given by the employer for the termination.”

[80] In considering whether Ms Doherty’s dismissal was harsh, unjust or unreasonable I will deal with each of the matters I am required to consider in turn.

(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)

[81] The applicant and the respondent see the situation as, respectively, black and white; I see many shades of grey. My task is to draw conclusions, on the balance of probabilities, about which account of the facts is more likely than not to be the accurate account. That is, I must determine whether the conduct occurred. 40 I then must consider whether the conduct, not confined to the reasons given by the employer, constituted a valid reason for dismissal,

[82] The Management Committee summarily dismissed her citing instances of conduct put forward as grounding this decision.

[83] These instances are found in the letter of termination of 14 March 2012.

[84] It is clear from the evidence that some of these instances contain factual inaccuracies. For example:

• “This meeting occurred after several attempts by the Service Manager, KerryAnn Pankhurst, to arrange a meeting over several months.” Situated as it is in the paragraph containing reference to the meeting of 20 June 2011, it implies that the meeting of 20 June 2011 took several months to arrange. The fact is that in February 2011 Ms Pankhurst sought to arrange a meeting between the applicant and the Acting Chair and the applicant placed conditions on the conduct of the meeting that were not agreed and the endeavours to conduct the meeting ceased. The meeting of 20 June 2011 actually took about an hour to organise notwithstanding it was an hour of anguish and conflict on both sides. That being said, the implication that it was not an easy thing to arrange for the applicant to attend some meetings with members of the Management Committee is borne out by the evidence.



• “The matter of bullying and harassment by you of another staff member was discussed with you at the time. You were given full particulars of each allegation and were invited to respond.” This statement implies that there were ongoing and multiple allegations of bullying and harassment against the applicant. In fact there was one allegation, that of the applicant bullying Ms Webster over inaccurate advice on a file and by the time of the meeting on 20 June 2011 that matter had been resolved to the satisfaction of the two parties and between the applicant and the Service Manager. Whilst the evidence is that the Acting Chair was not aware of this resolution at the time of the meeting the then Acting Chair, who remained on the Management Committee, was aware of this by the time the letter of termination was prepared.



• “At the meeting you asked to read a statement to the meeting and agreed to forward that statement to all parties for inclusion on your personnel file. You advised that your support person already had a copy of your statement. Subsequently, you declared that you would not be providing that statement and that you would be preparing an entirely different response. You subsequently provided a version of your original statement but it differed from your original statement. This was only supplied after you received a letter… that you would be subject to a further disciplinary hearing if you failed to comply with this directive.” I conclude from the evidence that the applicant never declared that she would not be providing that statement and would be providing an entirely different response. I conclude from the evidence that the statement provided by the applicant was the same statement that she had read out in the meeting with an addendum, written after the meeting, to address matters raised in the meeting. It was conceded by witnesses that the reference to the statement being “only supplied after you received a letter” was a mistake as the letter had never been sent. The Acting Service Manager was aware of this at the time of the preparation of the termination letter.



• “I note that you placed your report on the shared drive for all staff to read”. There was no evidence to support this statement. The evidence from Ms Pankhurst is that the minutes response document was not placed on the shared drive. 41



• “In the past week you have refused to comply with a reasonable directive to relocate within the office...” This statement is not correct. The applicant complied with the directive in a timely manner, albeit strongly protesting the directive and giving her own directions as to how it was to be carried out.

[85] I have concluded from the evidence that some of the instances were provoked by the behaviour of management or the Management Committee, for example:

• The applicant’s attitude towards the Management Committee was conditioned by the treatment of her as Acting Service Manager in the period leading up to 10 December 2010 when she was left out of the loop in the arrangement of meetings.



• The absence of a coherent approach to engaging with the employees who lodged the grievance in 2010.



• The inaccurate communication by the Service Manager of the status of the Enterprise Agreement on 17 June 2011.



• The explosive reaction of the Acting Service Manager to a conversation she overheard between the applicant and a colleague in October 2011.



• The uncritical acceptance of the account of the Acting Service Manager regarding the incident of 28 February 2012, the provision of counselling to her and not the applicant or others involved and the absence of any independent investigation of the incident before conclusions were drawn as to what happened and where the blame lay.



• The direction to relocate offices and use an uncomfortable desk at a time of high conflict in the workplace and when the applicant was 37 weeks pregnant and had about two weeks to serve before she took maternity leave.

[86] I also conclude that some of the instances cited in the letter of termination occurred or are likely to have occurred, however would not ground a valid reason for termination, for example:

• The applicant’s commentary on the minutes of the meeting of the Management Committee of 10 December 2010 was inordinately lengthy, intricate and combative. However as conceded by the respondent, as the Acting Service Manager and an attendee at the meeting, it was not inappropriate for the applicant to advise the Acting Chair of any inaccuracies in the minutes. The way in which she went about it was, in the words of the Acting Chair, “over the top”. I would agree with this characterisation however, on its own, this would not provide a valid reason for dismissal.



• When the applicant was introduced to the Acting Service Manager on 18 October 2011 she was rude. She conceded as much when she sought her out and apologised. The words ascribed to her are denied but are plausibly consistent with her concern about policy and procedure and her attitude to the Management Committee. Whatever the accurate account, and on the evidence I cannot find for either the applicant or the respondent, I do not think that the use of the words alleged in an introductory meeting provide a reason for termination of employment.



• It is clear that on 28 February 2012 the Acting Service Manager reacted angrily to overhearing a conversation in which the word “stupid” was used in reference to her. I do not doubt that the applicant did see her door handle move up and down and did see her door move. The evidence is not conclusive as to whether the door was kicked, hit or moved by force of the movement of surrounding office fixtures. However I conclude that the allegation was made and I conclude that it was made in response to what the applicant saw. Making such an allegation with reasonable grounds, even reporting it to the police, does not provide a reason for termination of employment.



• The evidence discloses that the property referred to in the termination letter was files from the applicant’s office that she stored in her car while the office relocation took place. The evidence also discloses that the applicant alerted the office of this action by voicemail on and returned the files upon her return to work. The temporary removal of files in such a circumstance does not provide a reason for termination of employment.

[87] However notwithstanding this I am in no doubt that there was an unequivocal and spectacular breakdown in the relationship between the applicant and the respondent. I believe that the start of this breakdown was due to the applicant’s belligerent personal style and behaviour in a setting (small organisation, inexperienced manager, voluntary management committee) that could not constructively deal with the intensity and persistence of the applicant as she sought to right the many wrongs that she perceived to exist. This constituted a valid reason for dismissal. The continuing employment of the applicant was untenable.

[88] The picture that emerges from the evidence is of ongoing and escalating conflict in the workplace between the employees, in particular the applicant on the one hand and the management and Chair on the other. Both sides of the conflict contributed to it. The applicant presents as an altruistic but headstrong, obsessive and pedantic individual. She was determined to conduct herself according to her own principles of adherence to policy and procedure and to hold her colleagues and her organisation to the same exacting standards, whether the management or governance of the organisation was in accord or not. As an expert in her field, it was apparent that she did not have professional respect for the inexperienced and, in terms of tenancy advice, unqualified, acting manager appointed by the Management Committee. She appeared to have formed the view that the organisation, NEWTAAS, had to be saved from mismanagement by the management and Management Committee in the interests of the clients.

[89] The incoming Chair of NEWTAAS appears to have come to the conclusion that the applicant was unmanageable. When Ms Doherty came into conflict with Ms Henzell it was akin to an irresistible force meeting an immovable object. Her status with her colleagues meant that management’s and the Management Committee’s authority was undermined; she was resistant to direction from the Committee and its Chair, other than on her own terms and she was supportive of efforts to remove the members of the existing governance body.

[90] The management and governance challenges the applicant posed appear to have lead the Chair of the Management Committee to conclude that her employment by the service was unsustainable. The applicant’s constant and forensic attention to detail and lengthy critiques of documents and behaviour in emails and documents exhausted management and the Chair of the Management Committee. In the circumstances I do not think that this was an unreasonable conclusion.

[91] The sentiments contained in the email Exhibit R6 are testament to the fact that the parties could no longer co-exist in the employment relationship. The writing of this email brought the relationship to an end.

[92] It is clear that a breakdown in relationship can be a valid reason for dismissal. Deputy President McCarthy found this to be the case in Green v BHP Billiton Iron Ore Pty Ltd 42 where he said:

“[97] This matter does not involve the conduct of the Applicant nor his performance. Rather, it involves the relationship between the Applicant and the Respondent. It is that relationship that is at the core of this application. When I refer to the relationship I refer not to the legal standing of it but their capacity to have faith in each other, for goodwill to be displayed to each other and for the responsibilities to be properly and fairly discharged to each other.

[98] The main issue here is whether the Respondent can rely on the Applicant to be able to establish relationships and trust with his direct supervisors and management generally to be able to discharge his duties. The Applicant recognises that there are trust issues between him and the Respondent. He clearly does not trust the management. His view is that those issues cannot be overcome unless he returns to work. On the other hand the Respondent says that the trust issues must be overcome before they can be confident he is in a state to be able to return to work…

[104] The evidence establishes to my satisfaction that the relationship had irrevocably broken down. I therefore find that there was a valid reason for the Applicant’s dismissal.”

[93] The applicant was summarily dismissed. On the evidence before me I cannot conclude that her conduct meets the higher threshold of serious misconduct.

[94] Regulation 1.07 of the Fair Work Regulations 2009 defines serious misconduct as follows:

“1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

(5) For paragraph (3) (b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.”

[95] The applicant’s conduct in supporting Ms LeBlanc’s attack on members of the Management Committee with the Office of Fair Trading was considered by the respondent to ground the conclusion that she failed in her duty to show fidelity and good faith to the employer and had consequently lost the trust and confidence of the respondent. I agree with the latter conclusion. However I do not think it constituted serious misconduct as defined in the Act or the Enterprise Agreement. 43

[96] In the community services sector members of voluntary management committees, comprised of individuals with varying levels of capability and dedication, often hold office for significantly shorter periods than the paid employees of the service. It is not uncommon, in my experience, for paid employees to bear the burden of funding applications, the development of work plans and for the administration of the governance arrangements of the service. As a result it is not uncommon for such paid employees to hold strong opinions about the calibre of members of management committees.

[97] Unfortunately this sometimes leads to confusion between the obligations of the employee to the organisation and to the individuals charged with the responsibility of governing the organisation. I think it would be serious misconduct for an employee to conspire with a third party to seek to remove an individual or individuals from a management committee of a funded community service. On the balance of probabilities I think the applicant’s conduct falls short of this. Whilst the applicant concedes that as an employee she complained to the funding body the evidence does not disclose, on the balance of probability, that she acted in concert with Ms LeBlanc to “defund” or destroy NEWTAAS or have management or members of the management committee removed from office. She hoped for the latter but I do not believe that she acted in concert with Ms LeBlanc to achieve it.

(b) whether the person was notified of that reason

[98] It is uncontroversial that the applicant was notified of the reasons for her dismissal. This factor is neutral in my consideration of whether the dismissal was harsh, unjust or unreasonable.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[99] The applicant was given an opportunity to respond to the reasons given for the dismissal. In the letter of termination of 14 March 2012 the respondent said “Even at this stage, we will reverse our decision to terminate you without any loss of employment continuity, if you provide satisfactory responses to the matters in this letter within 7 days”. The applicant took this opportunity and prepared a 6 page response to the reasons for dismissal. Her letter of response on 23 March 2012 said “I am more than willing to meet with members of the committee, once you have had time to consider my response, with the aim of resolving the issues contained in the letter of termination”. This offer was not taken up however the Chair replied to the applicant’s response on 5 April 2011 indicating that the Management Committee had decided to adhere to its original decision. The applicant submits that this process merely followed the letter of the legislation and ignored the spirit of it. However as the applicant concedes, the respondent did provide “an opportunity to respond to any reason related to the capacity or conduct of the person”.

[100] However the Chair’s reply to the applicant of 5 April 2012 does present real procedural difficulties. The response provided by the applicant should have given rise to more reflection and even the commencement of an investigation in relation to some of the contents of the termination letter that have emerged in these proceedings as having been justified. The refusal to meet with the applicant, whilst on one level understandable given the breakdown in the relationship, was harsh in light of the extensive defence provided by the applicant.

[101] On balance I conclude that this factor weighs in favour of the dismissal being harsh.

(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

[102] All discussions concerning the dismissal were conducted by exchange of correspondence. I conclude that this factor is neutral in my consideration of whether the dismissal was harsh, unjust or unreasonable.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[103] The dismissal relates to the conduct not the performance of the applicant and I conclude that this factor is neutral in my consideration of whether the dismissal was harsh, unjust or unreasonable.

(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

[104] NEWTAAS is, and was at the time of the applicant’s dismissal, a small business employer with approximately 8 to 10 employees. It was governed by a small voluntary committee of local community members. At the time of the applicant’s dismissal the only managerial employee was the Acting Service Manager who was inextricably involved in the conflict that surrounded the applicant’s dismissal. The evidence is that there was little, if any, management involvement in the process of the dismissal. The Acting Service Manager was not “assisting with the termination” 44 and the Chair of the Management Committee took responsibility for the conduct of the matter.

[105] NEWTAAS had a policy entitled Disciplinary Procedures that set out the steps to be taken where the employer “has concerns about the work performance or conduct of an employee”. 45 It is apparent that this policy was not strictly followed in the treatment of the applicant. The applicant was given warnings however she was advised in only vague terms of concerns with her conduct before attending meetings and during meetings more specific and sometimes different matters were raised with her that she had not prepared for. Some instances such as the alleged key grabbing and the alleged door kicking incidents were not subject to the type of proper investigation that would be expected when the incident was to be cited as a reason for summary dismissal. These are flaws in the procedures followed in effecting the dismissal. However the reasons for dismissal were provided to her in writing and she was given a reasonable time frame within which to respond to these reasons. I regard the size and circumstances of NEWTAAS as militating against the adherence to strict processes. However I do regard the flaw in the approach to Chair’s reply to the applicant of 5 April 2012 to be significant and weighing in favour of the dismissal being harsh.

(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

[106] NEWTAAS has no dedicated human resource management specialists or expertise and in fact the only permanent managerial employee was on long service leave at the time of the dismissal. I regard this as the key contributing factor to the flaws in the procedures followed in effecting the dismissal. The applicant says I should ignore the absence of a dedicated human resource management specialist because the whole purpose of the organisation was to advise clients on their legal rights with an emphasis on procedural fairness. However I don’t accept this submission as the area of tenancy law and employment law are distinct and it is apparent that neither the management nor the Management Committee were skilled in this field. This is a mitigating factor in coming to a conclusion about whether dismissal was harsh, unjust or unreasonable.

(h) any other matters that FWC considers relevant

[107] The applicant was a long-standing, high-performing employee whose passion for tenant advocacy was at the heart of her often counterproductive behaviour.

[108] She commenced as the first tenant advocate for the organisation in 2002 and had nearly 10 years of service.

[109] In June 2011 her performance appraisal said “Annabel continues to be a highly valued member of the NEWTAAS team. Her casework is of very high standards, and I rely on her to work with clients with complex needs and tenancy issues. Annabel is passionate and ethical. She is willing to raise issues service-wide and can be both critical and challenging. I value her willingness to challenge the system, but wish she’d spend more time on casework and callbacks. I apprentice Annabel’s opinion and expertise, her values and her commitment”. There were many instances of her dedication to the needs of clients, not least was the astounding uncontested evidence that she attended a hearing on behalf of a client the day after her first born child was cremated.

[110] This is not a straightforward case of an unmeritorious applicant. Much of what the respondent complains of occurred and my sympathies go to the hard working members of the management committee trying to keep an important community service on the rails, however the applicant was treated shabbily. She provoked some of this treatment however it behoves management in whatever kind of organisation they are running to act maturely and reasonably in managing the conduct and performance of employees.

[111] When overt conflict erupted between the applicant and the Acting Service Manager on 28 February 2012 the Management Committee should have responded even-handedly towards each party, providing counselling to both and conducting a proper investigation of the incident.

[112] The Management Committee should not have asked the applicant to relocate offices on 29 February 2012, the day after the conflict. It was inevitable that the applicant would see the direction as “pay back”, whether it was or not, and in her advanced stage of pregnancy it was wrong to put her mental state at risk.

[113] The dismissal of the applicant just days before she was due to take paid maternity leave deprived the applicant of access to that entitlement.

[114] Some of the reasons for the dismissal have been found to be inaccurate, some were provoked and some are such that the response was disproportionate.

[115] The applicant will face significant challenges resuming her career in Armidale, where she says she needs to remain due to her partner’s business.

[116] I have found that there was a valid reason for dismissal. However I have found contribution to unfairness arising from absence procedural fairness in some respects. I believe this, and the factors identified above, are significant mitigating factors to the finding of valid reason. 46 I regard the dismissal to be harsh, and therefore, unfair.

Conclusion

[117] I conclude that the respondent had a valid reason for the dismissal of the applicant, however I do not believe that this reason appropriately grounded a conclusion that the applicant engaged in serious misconduct. I conclude that the dismissal was neither unjust nor unreasonable in the circumstances, however it was harsh and therefore unfair.

Remedy

[118] This matter has been an unusually long one. During the proceedings the applicant’s position on the remedy sought has changed.

[119] I note that it is on the record that she was offered 12 weeks pay at the time of her dismissal, in addition to statutory entitlements. This offer was not taken up. At the outset of the proceedings the applicant insisted that she sought reinstatement. 47 I note that settlement discussions took place during the course of proceedings and offers and counter offers were made but the matter was not resolved. Along the way the applicant has indicated that if reinstatement is not an option she seeks compensation.48 The applicant’s latest evidence reveals that she no longer seeks reinstatement.49 Closing submissions for the applicant concede that reinstatement is unlikely to be seen as an effective remedy, but leave it to the Commission to decide.50

[120] The respondent vehemently opposes reinstatement and resists compensation noting that at various junctures in the proceedings the applicant has indicated that she does not seek compensation. They cite the conduct of the applicant’s case and the contrast between this and the objects of Act as indicative of the incompatibility of the applicant’s behaviour with the underlying requirement for trust in the contract of employment and an indication that the case is vexatious and frivolous and being conducted for the collateral purpose of undermining and sapping the funds of the employer. The respondent sees the applicant’s case as a vexatious abuse of process conducted for an improper purpose and collateral motive to keep the matter alive while she campaigned to have the Management Committee removed so she could return to the service under new governance.

[121] The applicant has conducted her case with forensic attention to detail and displayed a ferocious determination, to use the vernacular, ‘to set the record straight’. Based on the evidence I cannot conclude however that it has been conducted for the purpose the respondent asserts. I conclude that a strong motivating factor for making and persisting with the application is the desire to restore the reputation of the applicant in regards to her character and capability.

[122] However the respondent’s submissions do reinforce the view I have come to about the appropriate remedy in this matter. I conclude that reinstatement would be impractical. The applicant herself early on in the proceedings set out certain conditions upon which she would be happy to return to NEWTAAS, including:

• Ms Arna Kerklaan is not present in her workplace;



• Visits by members of the Management Committee to the premises are restricted; and



• Ms Pankhurst follows procedures.

[123] These are conditions which could not reasonably be met in a small workplace where a degree of informality, compatibility of working styles between colleagues and reasonable ‘give and take’ are required to promote harmonious working relationships. Furthermore it is clear that the respondent has lost trust and confidence in the applicant and this is frequently cited in decisions of the Commission as the reason for not awarding reinstatement. 51

[124] However I have concluded that the applicant was unfairly dismissed and I believe compensation is appropriate.

[125] Section 392 of the Act sets out the matters I must consider in determining the amount of compensation. It reads as follows:

“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.”

[126] I conclude that given the poor state of the relationship between the applicant and the respondent she would not have remained in the employment of the respondent after the expiry of her maternity leave in 2014. Given this and her length of service, the amount of compensation that I regard as appropriate is an amount equivalent to 14 weeks pay. I calculate this on the basis of the amount she would have earned had she not been dismissed on 14 March 2012 up to the period of her departure for maternity leave being 2 weeks pay and the 12 weeks pay she was entitled to receive while on maternity leave, a total of 14 weeks pay.

[127] The impact on the viability of NEWTAAS of this figure is likely to be marginal. The same cannot be said for the cost of these proceedings however that is not a matter that I am to consider in the calculation of compensation.

[128] There is no evidence that the applicant has worked since her dismissal and so no deduction is warranted for this reason.

[129] It would be unreasonable to conclude that the applicant should seek to mitigate her loss by seeking other employment at this time because she has recently given birth to a baby and were it not for her dismissal, would be on maternity leave. For the same reason it would be unreasonable to expect her to earn any income during the period between the making of the order for compensation and the receipt of the compensation.

[130] I make no deduction on account of the applicant’s conduct and since the compensation amount is likely to be below the compensation cap I make no adjustments for these reasons.

[131] The applicant is to provide the respondent with the amount that it is submitted is payable in accordance with the reasoning above within 14 days of this decision. If it is not agreed it is to be submitted to the Commission within 28 days of this decision for determination.

Costs

[132] I note that the respondent foreshadowed an application for costs pursuant to s.611 of the Act.

[133] The power to award costs arises from s.611 of the Act as follows:

“611 Costs

(1) A person must bear the person’s own costs in relation to a matter before the FWC.

(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:

(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.

Note: The FWC can also order costs under sections 376, 400A, 401 and 780.

(3) A person to whom an order for costs applies must not contravene a term of the order.

Note: This subsection is a civil remedy provision (see Part 4 1).”

[134] The statute anticipates that in general parties to proceedings before the Commission will pay their own costs. However it provides the Commission with discretion to make an exception to this general rule in certain circumstances:

• Firstly, if the tribunal is satisfied that the first person made the application, or the first person responded to the application, vexatiously, it may order a person to bear some or all ofthe costs of another person. (my italics)



• Secondly, if the tribunal is satisfied that the first person made the application, or the first person responded to the application, without reasonable cause, it may order a person to bear some or all ofthe costs of another person. (my italics)



• Thirdly, if the tribunal is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success, it may order a person to bear some or all ofthe costs of another person. (my italics)

[135]
I do not regard the application, or indeed the response to it, as having any of these characteristics and, in the light of my decision, it would not be appropriate to consider further the matter of costs.

DEPUTY PRESIDENT

Appearances:

Mr M Daly, solicitor, for the applicant.

Mr C McArdle, solicitor, for the respondent.

Hearing details:

2012.

Armidale:

July 10-12, 10-11 September.

2013.

Armidale:

February 7-8.

By telephone:

April 4-5.

Final written submissions:

Applicant: 9 May 2013, 11 June 2013.

Respondent: 30 May 2013, 11 June 2013.

 1   The Commission (previously FWA) may inform itself in relation to any matter as it sees fit, including by requiring a person to attend before it, or to provide copies of documents/records or other information: see ss.590(2)(a) and (c) of the Act. However the Act provides the Commission with no power to enforce such orders.

 2   Transcript of 8 February 2013, PN9366.

 3   Closing submissions of the Applicant dated 3 May 2013, p.34.

 4   The closing submissions of the Applicant dated 3 May 2013 gives the number as 10 employees (at p.18). Nothing turns on this discrepancy.

 5   Transcript of 10 July 2012, PN580.

 6   Transcript of 10 September 2012, PN3556.

 7   Exhibit A, Attachment C.

 8   Transcript of 4 April 2013, PN9757.

 9   Transcript of 4 April 2013, PN9796.

 10   Transcript of 11 September 2012, PN4892.

 11   Exhibit R9, Attachment KAP16.

 12   Transcript of 11 September 2012, PN5751.

 13   Transcript of 10 July 2012, PN655.

 14   Transcript of 11 September 2012, PN5564.

 15   Exhibit A, p.11, para 160.

 16   Exhibit R9, p.6, para 33.

 17   Exhibit R10, p.2, para 10.

 18   Exhibit R10, p.6, para 42.

 19   Exhibit A19, p.2, para 9.

 20   Exhibit A16, p.3, para 25.

 21   Transcript of 5 April 2013, PN11838-11839, PN12107.

 22   See e.g. Batterham v Dairy Farmers Ltd [2011] FWA 1230 at [302]-[304].

 23   Exhibit A, Attachment R, p.1.

 24   Transcript of 10 July 2012, PN942.

 25   Transcript of 11 July 2012, PN2224.

 26   Transcript of 12 July 2012, PN2923.

 27   Transcript of 12 July 2012, PN2923, PN3048.

 28   Exhibit A, Attachment T, p.2.

 29   Transcript of 10 September 2012, PN4134.

 30   Transcript of 10 July 2012, PN1042.

 31   Exhibit A, Attachment B1, p.3.

 32   Exhibit A, Attachment C1.

 33   Exhibit A, Attachment E1, p.2.

 34   Exhibit A25(ii), Attachment A.

 35 (1992) 41 IR 452 at 459.

 36 (1995) 185 CLR 410 at 465.

 37 (1995) 62 IR 371 at 373.

 38   [2011] FWAFB 1436.

 39   Print S8106 (17 July 2000); [2000] AIRC 61.

 40   See e.g. Edwards v Giudice (1999) 94 FCR 561 at 564-5 (Moore J),

 41   Transcript of 11 September 2012, PN5487.

 42   [2012] FWA 5949.

 43   North and North West Community Legal Service Enterprise Agreement, clause 50.

 44   Transcript of 11 September 2012, PN6130.

 45   Exhibit A36, p.1 (‘Preamble’).

 46   See Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166 at [24].

 47   Transcript of 10 July 2012, PN491, PN600, PN681, PN980; 11 July 2012, PN1341.

 48   Transcript of 11 July 2012, PN1345.

 49   Transcript of 5 April 2013, PN11977.

 50   Closing submissions of the Applicant dated 3 May 2013, p.20.

 51   See Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191, cited e.g. in Nguyen v IGA Distribution (Vic) Pty Ltd [2011] FWA 3354 at [40].

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