Applicant v Respondent - [2013] FWC 1199

[2013] FWC 1199

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Applicant
v
Respondent
(U2012/9491)

COMMISSIONER GREGORY

MELBOURNE, 16 MAY 2013

Application for unfair dismissal remedy.

Introduction

[1] This matter involves an application pursuant to s.394 of the Fair Work Act 2009 (the Act) claiming the Applicant has been unfairly dismissed by the Respondent. It was heard on 4 and 5 February 2013 in Melbourne. Leave to appear was sought on behalf of the Applicant by Mr A. Galbraith of Counsel and by Mr J. Tracey of Counsel on behalf of the Respondent. Leave was granted in both instances.

[2] At the commencement of proceedings the Respondent requested a Suppression Order be made due to the nature of the issues involved. It proposed the Order reflect a Suppression Order previously issued by the Magistrates’ Court, with the additional proviso the proceedings be held in camera so as not to breach the Order made. The Applicant did not oppose this request, but did express some reservations about any subsequent ability to make known in any public sense the final outcome of the matter. However, it did not oppose an Order being made which complied with the scope of the Order issued by the Magistrates’ Court, nor did it oppose the request for the proceedings to be held in camera. I also indicated at the conclusion of the proceedings I might seek further views from the parties at a later time about the form and publication of my reasons for decision. I did have those discussions and an agreed position was reached.

[3] Section 594 “Confidential Evidence” of the Act enables the Tribunal to make an Order prohibiting or restricting the publication of certain matters if:

“...satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason” 1.

[4] After hearing from the parties I was satisfied it was desirable to make the Order requested. It was issued on 5 February 2013, with effect from the commencement of the proceedings and, as a consequence, the Applicant and the Respondent are not named in this decision and other individuals are not identified, other than by their title or by reference to their initials.

The Submissions and Evidence

[5] The Applicant provided a written outline of submissions in accordance with the directions issued. Witness evidence was also provided by the Applicant and three other witnesses, DP, JS and RF. The Applicant submits her dismissal was harsh, unjust or unreasonable having regard to the criteria in s.387 of the Act. It refers, in particular, to the following matters in support of its submissions:

there was no valid reason related to the conduct;

the reasons given, relating to the conduct, were not valid;

the conduct alleged, even if proven, was not sufficient to justify the dismissal;

there was no reasonable investigation of the matters;

there was no reasonable opportunity afforded to respond to or rectify the alleged conduct;

the Respondent’s actions were inconsistent with those required by the “Professional Standards and Assessment for Teaching Staff” document dated December 2008;

the alleged direction given was unreasonable. In this context the Applicant specifically denies a “directive” was issued by the Respondent.

[6] The Applicant’s submissions in terms of remedy are that reinstatement is not appropriate in all the circumstances and instead an order for payment of compensation is sought.

[7] The Applicant commenced employment at the School on a part-time basis in 2005 and was later employed as a full-time teacher in 2006. She was employed as a teacher in the Middle School and as Middle School Girls Advisor at the time of her termination. She was also a member of the Student Wellbeing committee, which was responsible for providing appropriate counselling to students who required that assistance. She had previously been a primary school teacher in the state school system and a youth worker with the Salvation Army. She has a Bachelor of Education from MacGill University in South Australia and a Diploma in Counselling (Psychology).

[8] Person A was employed by the Respondent in 2010 as a teacher and later appointed as Head of Middle School. The Applicant said she understood him to be a personal friend of the Principal. Person A later resigned in September 2011 and the Applicant became aware of a police investigation involving allegations made against him.

[9] Person A continued to live in the local area and the Applicant and other staff visited him to provide support. She had previously been in contact to provide religious and spiritual guidance and had spoken to the Principal on at least one occasion about this. In October 2011 Person A was arrested and charged with certain offences. The Applicant and two other teachers attended the subsequent court hearing. One of the teachers, TL, then received a phone call from the Principal asking the teachers to return to the School. He met with them and indicated he did not want “numbers of people” attending the court proceedings. 2 The Applicant understood this to mean he did not want all three staff members to be present at the same time. The Principal subsequently told staff the School Chaplain was in charge of the matter as it related to the School.

[10] In a staff meeting the following week the Principal said words to the effect of:

“I prefer you don’t have anything to do with him, I don’t understand why you would want to, but I can’t tell you what to do in your own time.” 3

[11] However, the Applicant said she continued to have some communication, primarily by means of text message as he was now living in New South Wales. She was concerned about his well-being and the contact was intended to provide spiritual counselling and support.

[12] The Applicant said she later discovered another court hearing occurred in March 2012, which TL again attended. She was not aware of the hearing and did not attend. The subject of staff attending court hearings was also discussed in the Wellbeing meetings. A further court hearing followed in July. She said TL told her he was unable to attend as he was being called as a witness and it would be a good thing if she attended instead to observe and see how the students were coping. The July hearing took place during the school holidays, so there was no issue about her availability to attend. She was the only staff member present and sat at the back of the court. The Magistrate subsequently interrupted the proceedings to ask who she was and she gave her name. Some discussion followed about whether it was an open hearing and she was later approached during a break in proceedings by a Detective who again asked who she was. He then told her she had been directed by the Principal not to attend. She said there had not been any such directive. She understood the Detective then rang the Principal and said she had been instructed to leave. The Detective also told her not to talk to any witnesses. The Applicant denied having done so, but had spoken to a parent sitting in the public seating area. She was not aware he was to be called as a witness. She sat on the opposite side of the room to Person A, and the only time she was anywhere near him was when he walked past at the end of the proceedings to leave the court. She said she did not make any contact with him.

[13] She was then contacted by TL, who indicated the Principal was “furious” at her for attending at court. The Principal subsequently asked to meet with her. He gave her a letter at that meeting alleging misconduct and providing her with six days to respond to a series of issues set out in the letter. The Applicant subsequently became distressed and ill and was advised by a Doctor to take time off work. She did, however, provide an email response to the Principal, dated 25 July, indicating she had been open in informing him of her limited contact with Person A. In a subsequent witness statement she indicated between November 2011 and August 2012 she had been in contact approximately 6 or 8 times by text message and on one occasion by email. Once she was aware he had pleaded guilty she ended all contact. She said she was:

“...behaving in a manner which is expected as a Christian from one brother to another and according to the values of the College.” 4

[14] It had also not occurred to her she would need to check with the Principal about her attendance in court during school holidays.

[15] On 1 August, while still on sick leave, the Applicant was contacted by a Union representative and told the Principal did not accept the explanation provided in her earlier email, and had decided to terminate her employment. She was offered the opportunity of resigning but rejected this offer. She then received a letter from the Principal dated 10 August terminating her employment “forthwith”. The letter indicated in part:

“I cannot accept your responses to my questions regarding your ongoing contact with Person A, that there can have been any confusion in my request to staff regarding ongoing contact with Person A. I passed on police requests and my own directive at a staff meeting in late 2011 asking that staff have no contact with Person A.” 5

[16] It continued to indicate:

“I believe that you have deliberately continued communication with Person A against my requests and in contravention of police requests communicated to me ... I believe that this constitutes a serious conflict of interest and potential breach of confidentiality and trust, as well as potential prejudice to the legal proceedings involving Person A.” 6

[17] The Applicant said at no time prior to her dismissal had she been given an opportunity to respond in person to the issues raised and did not recall being offered the opportunity to have a support person present in the meeting on 18 July 2012. She did, however, attend that meeting with the School Chaplain.

[18] In cross examination the Applicant was referred to the responses she provided in the document on 25 July, which indicated in part:

“Although I hadn’t realised that when I sat down, Person A was lead past me when he entered the courtroom and I may have offered him some encouragement with a quick smile. I also recall thinking that I hoped it was looking to the scripture and prayer to help him. I am unclear if I made a comment in relation to this thought. This is very different to publicly supporting his behaviour in the courtroom.” 7

[19] She was asked why that exchange was not referred to in her witness statements, however, she denied any such exchange. She said she may have smiled at Person A as he walked past her, but denied any conflict in being present in court. Her role was simply to observe the proceedings and report back to the Student Wellbeing meeting so it could discuss what was required to assist the students and the wider School community. She disagreed that when Person A sought her support she should have refused any involvement because of her role at the School. She did not believe she had done anything wrong:

“...in following through with my Christian belief and following the scriptures and seeking, in what is an extremely difficult situation, the right away to behave as a Christian and as an employee.” 8

[20] She agreed in cross examination the message conveyed by the Principal in the staff meeting in November was that he was extremely upset and distressed by the situation involving Person A and preferred staff had nothing to do with him. However, she did not take this to mean it applied to contact outside of school time and in saying:

“...I prefer you don’t,” 9

the Applicant believed the Principal was offering staff a choice about whether they made contact with Person A or not. However, she agreed it went against the Principal’s wishes in continuing to have involvement with Person A.

[21] DP has been employed by the Respondent for six years as a Teachers’ Aid. She recalled the staff meeting in the late 2011. She said the meeting was unusual in that it was not just the teaching staff that attended, but other employees as well. She could not recall the exact words used by the Principal, but was left with the impression it was a matter for each individual to decide what contact, if any, they had with Person A. She also recalled the Principal using words like:

“I would prefer you not to attend the court case.” 10

[22] JS is employed at the School as the VCE Coordinator. He is also a secondary school maths teacher. He was also present at the November staff meeting chaired by the Principal when he discussed the situation involving Person A. He was not able to recall precisely the words used but understood him to say he would prefer staff have nothing to do with Person A. He went on to say he could not tell staff what to do in their own time, but could not understand why they would want to have any further contact with him. JS did not take this to be a directive, but rather:

“...a strongly expressed wish.” 11

[23] RF was employed by the Respondent until January of this year as a Religious Education teacher. He attended the first court hearing after Person A was arrested and on return to the School was told by the Principal his preference was that staff did not attend any future court hearings. RF understood this to be a “preference” rather than a “direction to staff”. He later recalled words to the effect from the Principal at other staff meetings:

“I cannot direct you as to what you do in this matter, but I cannot imagine why you would want to have contact with Person A.” 12

[24] The Respondent also provided a written outline of submissions in accordance with the directions issued. It also relied upon evidence from four witnesses – the Principal, the Head of the Junior School, the School Chaplain, and TL, a counsellor at the School. The Respondent submits the Applicant’s dismissal was not harsh, unjust or unreasonable. It was justified and well founded given the Applicant’s conduct and, in particular, the risks posed to the School’s reputation and the care and welfare of its students, and her failure to understand and address those concerns. Despite the Principal’s request that staff not make contact with Person A she maintained contact, both privately and publically. Her actions created a conflict of interest with her duties and position of trust as a counsellor. Her friendship and concern for him were no excuse for ignoring the Principal’s request.

[25] It submits these concerns were raised by the Principal in a meeting with the Applicant on 20 July 2012, also attended by the School Chaplain. The Applicant continued to maintain she had done nothing wrong and the Principal formed the view he could not guarantee she would not continue to be in contact with Person A and, as a consequence, to expose the School and the School community to further damage. It submits if the Applicant had shown some intention to change her behaviour the decision to terminate her employment may not have resulted. She was given the opportunity to respond to the allegations concerning her conduct, both in writing and in person, but instead denied any wrongdoing or commitment to change her behaviour. The Respondent submits her evidence reveals a lack of insight into the:

“...objective seriousness of her conduct.” 13

[26] It also submits she was provided with the opportunity to have a support person present and took up this opportunity. The Respondent does not have a Human Resource specialist on staff and The Principal was responsible for the process which led to the Applicant’s dismissal.

[27] The Respondent submits in conclusion it was left with no option but to dismiss the Applicant because the Principal had lost confidence in her ability to carry out her role and responsibilities in the interests of the School and its community.

[28] The Principal has been at the School since 2006. He previously held senior roles in the education system, including as a Principal on three separate occasions. He has known the Applicant since 2006 and was involved in expanding her role from part-time to full-time. Her role changed again in 2011 when she was released from half her class teaching duties to take on special needs and remedial teaching in the Middle and Senior Schools.

[29] The Principal said he employed Person A in 2010 and promoted him to Head of the Middle School in 2011. In October 2011 he became aware of some issues involving Person A and was advised a police investigation into his conduct had commenced. Person A was already on leave at this point and shortly after resigned from the School. He was arrested in November and ordered to appear in the Magistrates’ Court. In late November the Principal became aware three members of the School’s Student Wellbeing committee had attended the court appearance. He asked them to return to the School and after meeting with them it was agreed only TL would attend in the afternoon to observe what occurred. He had a further discussion with TL before the next court hearing in March 2012 and it was again agreed he should attend as the School did not have external legal representation at that time. However, from that point a firm of Solicitors was engaged to monitor the proceedings and no members of staff were authorised to attend from that time.

[30] The Principal said he addressed a staff meeting in November 2011 and requested that staff not have any further contact with Person A. He did state he could not direct them about what they did in their own time, but it was his desire they respect his request at all times. He said he was subsequently contacted in July by a Detective Senior Constable from the courthouse, who told him a person was sitting in court taking notes, whom he believed to be a member of the staff. The Principal told him this was highly inappropriate and the staff member had not sought his authority to represent the interests of the School. On 18 July he wrote to the Applicant following her court attendance, and an email he received from her on 12 July indicating she continued to have contact with Person A. The letter set out a process to enable the Applicant to respond formally to the issues raised by the Principal. This opportunity would be provided in a meeting to be held in the following week. The Applicant was invited to be accompanied at that meeting by a nominee of her choice. The letter indicated in part:

“The College concerns are listed below.

By your own admission you kept periodical contact with Person A, an ex-employee of the College, charged with serious criminal offences...against the students of this College. The College requires you to address the following.

1. Please explain your motives in maintaining contact with Person A when explicitly asked to desist by myself in a staff meeting at the end of 2011.

2. You have indicated in the above quoted email that you have been “honest” in disclosing your contact with Person A. As one who assumed that all members of staff were complying with my request to not have contact with Person A, can you explain why I had no knowledge of this contact, or alternatively provide evidence that you informed me? Are you able to name the members of staff who were privy to your ongoing relationship with Person A?

3. Did you at any time perceive a conflict of interest on one hand communicating with Person A whilst also being part of a counselling team which dealt with actual or potential child victims?

In your email you outlined your self – appointed role in attending court on Wednesday, 11 July 2012.

1. Why did you not check with me before taking it on yourself to attend court on Wednesday, 11 July 2012, on what was described by yourself as college – related business?

2. Did you or did you not perceive a substantial conflict of interest in purporting to represent the College Student Wellbeing committee, while sitting in a courtroom with accused Person A, and also purporting to be there to support the student witnesses?

3. Are you aware that you may be in breach of a prohibition order in place regarding the publication or identification of certain aspects of matters dealt with by the court by taking and sharing notes as a result of your time in court on 12 July?

We need you to realise the seriousness of the situation. We have worked long and hard with police to protect the children of this college and to serve the interests of justice. Your actions have concerned both police and the college as you seem to act in self – directed ways that are contrary to the goals and wishes of police and the college.

Finally, please be aware that if this conduct management procedure does not result in our concerns with your conduct being rectified then the college may initiate disciplinary action against you up to and including termination of employment.”

[31] The proposed meeting did not take place because the Applicant was unwell and not at work, however, on 25 July she provided a three page written response. It included the following extracts.

[32] In response to the first point the Applicant was asked to address she stated:

“I recall a statement last year to the effect that you would prefer that we had “no contact”, “couldn’t see any reason as to why we would want to”, “but could not tell us what to do in our personal time.” I do not recall any other statement and certainly did not understand this to be an explicit instruction.

My contact has been minimal. The only contact I have had with the Person A since last year are some text messages. As I left my phone in a taxi and had to buy a new one in June I only have the messages on my phone since then but they are no more than words of encouragement to a former colleague who was going through a difficult time.

Since 3/6/12 I have had contact with him three times relating to him staying close to God and praying for the court case. As a Christian, I believe we should identify with those who suffer because of their sins and do what we can to care for them.”

[33] In response to the second point she was asked to address she stated:

“In late 2011 I recall a conversation with you relating to several prophetic messages that I have passed onto Person A. During our conversation I briefly outlined the context of these messages. You made no comment that they were in any way inappropriate. I know that I spoke about others that were to be passed on because I specifically mentioned them to you so that my ministry was transparent. I don’t have evidence of that conversation. I haven’t mentioned it this year but I believe that I was transparent in disclosing that I had maintained some limited contact.”

[34] In response to the third point the Applicant stated:

“No I do not believe that there is a conflict of interest. Whilst I am an active part of the wellbeing team, late last year I was instructed not to work with any of the victims, and I haven’t. It is my understanding that counselling of those students is occurring off – campus. The role of the wellbeing team is to plan and deliver other support which may be needed by our school community.”

[35] She also indicated:

“It never occurred to me that I would need to check with you as my attendance in court occurred during school holidays so it wasn’t impacting my work in any way and I was prepared to give up that time to attend...there was certainly no indication either directly or through the well-being team meeting that there was a problem with observing proceedings so I did not think it would be an issue.”

“Some months ago, I think it was before the court date in March, it was discussed between some members of the well-being team that it would be helpful for someone to be at the court to see how the children were coping. At no time did anyone raise the notion that we had been directed not to attend.”

“I saw no conflict of interest in being there to observe how students cope with the situation. I knew that TL had been asked to go to court to attend a past hearing to observe what was happening and thought me attending when he couldn’t, would be in the same manner.

In my previous work with women and children at the Salvation Army’s Refuge Centre we found that our ability to offer appropriate support was enhanced by having a broad knowledge of the circumstances. My purpose for being at the court was to try to have a broader understanding which could inform the work of the well-being team.

I purposely sat on the other side of the courtroom and in the very back row, so that I was distanced from Person A. Although I hadn’t realised it when I sat down, Person A was led passed me when he entered the courtroom and I may have offered him some encouragement with a quick smile. I also recall thinking that I hoped he was looking to scripture and prayer to help him. I am unclear if I made a comment in relation to this thought. This is very different to publicly supporting his behaviour in the courtroom.

“As it was an open court, and I have not published or identified aspects of matters dealt with by the court, nor have I shared my notes I am unaware as to how I can be in breach of any orders.”

[36] The Principal believed her responses continued to demonstrate a serious lack of insight into her behaviour and she did not appear to understand the effect of her conduct on the School and its reputation, and her ability to be involved in counselling students. He believed her actions created a conflict of interest with her duties and position of trust as a counsellor. If she had shown some remorse or intention to modify her behaviour he may not have taken the decision to dismiss her, but she continued to maintain what she had done was right. As a consequence he had no guarantee she would not again be in contact with Person A.

He subsequently decided to terminate her employment and set out his reasons in the letter dated 10 August 2012. It indicated in part:

“Your responses to the questions and allegations in my letter were of general denial of any inappropriate actions on your part, with no insight into the potential consequences of your actions. In these circumstances, you could give no assurance that you would not contact Person A again during the course of any legal proceedings.

I cannot accept your responses to my questions regarding your ongoing contact with Person A, that there can have been any confusion in my request to staff regarding ongoing contact with Person A. I passed on police requests and my own directive at a staff meeting in late 2011 asking that staff have no contact with Person A. I previously asked that three members of staff, you included, vacate the courtroom during the first hearing for Person A after he was arrested in November 2011.”

[37] The letter continued at a subsequent point to indicate:

“I believe that you have deliberately continued communication with Person A against my requests and in contravention of police requests communicated to me. I would remind you that our concerns at this time should be for the alleged victims, their families and the College community and less for the alleged perpetrator. In maintaining contact with the accused person, and being part of the student well-being team and broader staff of the College, I believe that this constitutes a serious conflict of interest and potential breach of confidentiality and trust, as well as potential prejudice to the legal proceedings involving Person A.

I also believe that your presence in the courtroom for Person A’s hearing on Wednesday 11 July was inappropriate and showed a gross lack of insight into the situation. Being fully aware of my concerns re staff contact with Person A and knowing the sensitivity of this difficult and extremely serious case, a reasonable person in your position should have thought to consult with me first. Your presence caused concern for the police and the College, and the only point of friction between police and the College since the investigations began, in circumstances where the College has made every effort to cooperate with the police.

In these instances I believe that you have repeatedly crossed a professional boundary, showing scant regard for my directions as a Principal of ... involving yourself in a potential conflict of interest while in a position of trust, and following your own agenda with little forethought regarding potentially negative or damaging outcomes.

I believe that the College’s allegations have been substantiated.”

[38] The Principal later provided the Applicant with the opportunity to resign which she refused to take up. He also decided to provide her with a payment associated with her accrued long service leave, notwithstanding her length of service had not actually qualified her for this entitlement. This amounted to an additional payment equivalent to 10 weeks pay. She also received seven weeks pay in lieu of notice.

[39] In cross examination the Principal agreed he was not able to direct staff about what they do in their own time and could not recall saying in the staff meeting in November that they must not have contact with Person A in any circumstances. However, he believed his intentions were clear in the message he gave to that meeting. He also considered TL’s attendance at the court in March, with his permission, to be a totally different situation from the Applicant’s appearance at court in July, which he was not aware of until contacted by Police. He did not deny the Applicant had told him she was maintaining contact with Person A, although he could not remember the conversation or when it occurred. However, it may have been the reason for the comments he made at the staff meeting in November. He also said he understood the contact between the Applicant and Person A primarily involved text messages conveying religious and spiritual support. He agreed he was only aware of the contact because the Applicant had been open and honest in disclosing it to him.

[40] He also agreed when he made the decision to terminate the Applicant he was not aware of any complaints about her behaviour having actually damaged the reputation of the School, or the interests of the students. However, he continued to believe a conflict of interest existed given her role as a student counsellor.

[41] SS has been the Chaplain at the School since 2008. He said he attended the staff meeting in November 2011 chaired by the Principal. The clear message was that while the School could not control what staff did in their own time it was inappropriate to go to court or have contact with Person A in the interests of those directly affected by his actions, and others who might still come forward. There were other occasions when this message was emphasised to staff. He also recalled a discussion at a Student Wellbeing meeting when the Applicant indicated that, irrespective of the Principal’s views, she felt she should remain in contact because Person A had been a close friend. He told her she had a greater responsibility to the children and families at the School and thereafter they had several discussions in which he attempted to convince her about the inappropriateness of further contact. SS believed the clear message from the School was that it was totally inappropriate for staff members to be in contact with Person A, particularly those in a supportive/counselling role with students and families.

[42] KN is Head of the Junior School and joined the School as a teacher 10 years ago. He was present at the staff briefing in November, addressed by the Principal. After the meeting the Applicant told him Person A had made contact with her and she asked what she should do. He said he advised her to end any involvement and to direct any further contact to the School’s Business Manager. He had a clear recollection of this discussion. He was in no doubt the School’s message to staff was that they should not have contact with the former staff member. This message was clear and reiterated on several occasions.

[43] TL has been a member of the staff for seven years. He also attended the staff meeting in November, addressed by the Principal. The gist of the message was that while the School could not control what staff did in their own time it would be inappropriate and improper to have contact with Person A whilst criminal allegations were being investigated. He also recalled further discussions about this issue at the Student Wellbeing meetings. In July 2012 he spoke with the Applicant and understood she was to be at the next court hearing. He had concerns about her attending, but recalls saying words to the effect:

“...if you are going to attend you should take notes.” 14

[44] He said in hindsight this was a “wrong call” and he should have told her it was inappropriate to attend. 15 As a person with qualifications in counselling psychology he believed it was inappropriate and unprofessional for a counsellor to communicate with an accused individual under Police investigation, after having had counselling involvement or potential future involvement with victims and/or their families. Such a fundamental understanding should be clear to anyone with qualifications in counselling.

[45] He agreed in cross examination the Principal’s comments in the November 2011 staff meeting could not be described as a directive, but rather in the nature of a preference or wish. He also agreed the Applicant’s attendance at the court in July could be perceived by others in a similar way to his attendance previously, despite the fact he was authorised to attend on that occasion by the Principal. He acknowledged he made the suggestion to the Principal he attend on that day.

[46] In terms of how this matter is to be determined the Applicant submitted, firstly, in terms of “valid reason” the termination must be justified and defensible on an objective assessment of the relevant facts. It is not sufficient for an employer to simply be of the belief, after sufficient enquiry, that a valid reason for termination existed. The Respondent did not take issue with this. The Applicant submitted the reasons for termination can be derived from the letter dated 10 August from the Principal to the Applicant. The primary reason advanced in that letter, in its submission, is that the Applicant engaged in misconduct by failing to follow the purported direction given by the Principal in the staff meeting in November 2011. The letter also indicated the Applicant’s conduct constituted a conflict of interest and breach of trust that was potentially prejudicial to the legal process, and the reputation of the School and the School community. The Applicant submits that to establish the validity of this primary reason the Respondent is required to show the purported direction was given, that there was a failure to comply, and it was both a lawful and reasonable direction.

[47] In the Applicant’s submission the Principal’s comments at the November staff meeting were merely suggestive of a preference and did not constitute an unequivocal instruction or direction. This was clear from the divergent evidence of those who attended the meeting. The Applicant denies there was any direction given, but even if there was it did not extend to what staff members did in their own time. It also submits it would have been unreasonable for the School to attempt to restrict an employee’s private contact with a person who had not, at that point, been found guilty.

[48] In terms of the reasons going to breach of confidentiality or trust it submitted a potential or perceived conflict was not sufficient to warrant termination, particularly in the absence of any evidence of complaint about those issues. There were no complaints from students or the wider School community suggesting the Applicant had acted in a manner that brought the reputation of the School into disrepute. Another teacher had also attended court proceedings, admittedly with the Principal’s knowledge and consent, but in circumstances where the same perceptions could be formed by anyone who observed his attendance.

[49] The Applicant submitted, in conclusion, in the absence of evidence of a broad, enforceable direction to refrain from the conduct complained of there cannot be a “valid reason” for termination, and the absence of a “valid reason” invariably renders any termination unfair. The decision to terminate her employment was disproportionate to her conduct and incapable of being justified.

[50] In regard to the other considerations the Tribunal is required to take into account the Applicant’s submissions acknowledge she was notified of the reason for her dismissal. However, at no time prior was she given an opportunity to respond in person. However, she was not refused the opportunity to have a support person present. In addition, the size of the school could not be relied upon to overcome any deficiencies or lack of procedural fairness in the process followed.

[51] The Respondent submits it had a valid reason to terminate the Applicant’s employment. There had been, at the very least, a strongly worded request from the Principal in the staff meeting in November 2011 for staff not to make contact with Person A. The Applicant nevertheless maintained contact, both privately and publicly. However, in the Respondent’s submissions it did not rely just on whether there was a lawful and reasonable direction or request made at the meeting in November. The critical issue was whether the Applicant’s continued behaviour in maintaining contact with Person A conflicted with her role as a student counsellor and member of the Student Wellbeing committee. It submits this situation was compounded by her complete lack of recognition of this conflict, demonstrated in the written response she provided on 25 July. This continued up until the time of her termination and it was these circumstances, on any objective analysis, that went to the essence of the valid reason for her termination.

[52] The Respondent also submits the Applicant’s Christian faith and desire to provide support to Person A in a time of need did not justify her actions. It was always open to her to act consistently with both her faith and her duty as an employee of the School. This could have been achieved if, after being contacted by Person A, she directed him to appropriate support and assistance elsewhere.

[53] In terms of the other requirements the Tribunal is required to consider the Respondent agrees with the Applicant’s submission she was notified of the reason for her dismissal. In terms of being provided with an opportunity to respond it notes the meeting on 20 July, and the intention a further meeting be held in the next week. However, this did not occur because of her absence due to illness. There was no refusal at any stage to allow a support person to be present at meetings. It also acknowledges the Applicant’s age is relevant and she was a person with a reasonable length of service.

Consideration

[54] Section 385 of the Fair Work Act states that a person has been unfairly dismissed if the Fair Work Commission is satisfied:

“(a) the person has been dismissed; and

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

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

[55] In the present matter the Applicant submits her dismissal is harsh, unjust or unreasonable. In considering whether a dismissal is harsh, unjust or unreasonable the Act requires that the Commission must take into account the factors set out in s. 387. They are as follows:

“(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 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.”

[56] The obligations imposed by s.387 are clear and well understood. They were simply stated by a Full Bench of Fair Work Australia in the matter of L. Sayer v Melsteel Pty Ltd 16 in the following terms:

“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.” 17

[57] Both parties acknowledged the often quoted authority of the High Court in Byrne & Frew v Australian Airlines Ltd 18 as to the meaning of harsh, unjust or unreasonable where McHugh and Gummow JJ held:

“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..” 19

[58] I now turn to consider the circumstances of the present matter and whether the Applicant’s dismissal can be found to be harsh, unjust or unreasonable in the light of the considerations contained in section 387 (a) to (h) that I must have regard to.

(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);

[59] The existence or not of a “valid reason” is invariably an important issue in any unfair dismissal application and often determinative. The Applicant in its submissions made reference to the often cited decision of Parmalat Food Products Pty Ltd v Mr Kasian Wililo 20 in which the Full Bench made the following statement about the importance of “valid reason.”

“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.” 21

[60] Reference was also made to previous case law which has considered what is required to constitute a “valid reason.” The matter of Selvachandran v Peteron Plastics Pty Ltd 22 was decided under a previous statutory scheme but is still relevant in the present context and often referred to. At page 373 Northrop J held:

“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....” 23

[61] It is also clear the reason must be objectively valid. It is not sufficient that the employer believes it has a valid reason for termination. This was confirmed in the Full Bench decision handed down by this Tribunal’s predecessor in the matter of Rode v Burwood Mitsubishi 24 at paragraph 19 where it determined:

“...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.” 25

[62] The Tribunal has also considered what is required to constitute a valid reason related to a person’s conduct, as in the present matter. In the matter of Potter v WorkCover Corporation, 26 handed down on 15 June 2004, a Full Bench held:

“The meaning of the term “valid reason” is not to be limited by importing a test amounting to repudiation of the employment contract. The issue is not whether the conduct in question amounted to serious misconduct at common law but whether it gave rise to a valid reason for termination of employment.” 27

[63] I now turn to consider whether a “valid reason” that can be said to be sound, defensible and well founded, on any objective analysis, exists in the present matter.

[64] There is at the outset a divergence of view about what the “valid reason” was. The Applicant submits the primary reason advanced by the Respondent was the Applicant’s failure to follow a purported direction given by the Principal. It also cites reasons relating to conflict of interest and a breach of confidentiality and trust. It submits, in response, the primary reason cannot be a “valid reason” as there was no direction given in the first place, and even if there was, it was qualified to the extent it acknowledged it could have no application to what employees did in their own time.

[65] To this extent I agree with the Applicant’s submissions. The staff meeting in November 2011 involved a broader group than usual, with other non-teaching staff attending. Whilst it appears other matters were on the agenda the issues involving Person A clearly preoccupied the meeting. I have no doubt that when the Principal spoke and asked that staff have no further contact or involvement with Person A his intention and expectation was that this would be the outcome. He was obviously dealing with a very difficult and stressful situation that needed to be handled with great care and sensitivity. His evidence clearly pointed to a desire to do whatever necessary to protect and safeguard the interests of the students, the School and the School community. Clearly, in his view, these priorities were not compatible with staff having any ongoing contact or involvement with Person A.

[66] However, I am also satisfied the evidence indicates this is not the way in which his words and intentions were interpreted by, at least some, if not a majority of those present. Several witnesses interpreted his words as being in the nature of a request, albeit a heartfelt one, but regardless a request rather than a clear directive. Secondly, several witnesses came away with the view that regardless of whether it was a directive or request it was qualified in nature. It acknowledged the Principal could only seek to influence what they did in regard to their School activities. He could not control what they did at other times in a private capacity. Indeed, the Principal’s own evidence acknowledged this.

[67] The Applicant accordingly submits the failure to comply with a direction from the Principal, the Applicant’s employer, cannot be a valid reason for her termination because, firstly, there was no such directive and, secondly, regardless of whether there was it did not act to inhibit what members of staff did in their own time away from the School.

[68] The Applicant also submits there is no evidence to establish any of the additional reasons relied upon to do with conflict of interest, breach of trust, and breach of confidentiality. It points to the fact any contact with Person A was limited, confidential and of a spiritual and supportive nature only. There was no information disclosed that involved any actual conflict of interest or breach of confidentiality, and no allegations have been made or disclosed by students or the School community in this regard. The Applicant attended the court in her own time. Further, her attendance would not have been seen as unusual or conflicted because other staff, including TL, had attended previous court hearings, albeit with the Principal’s knowledge and consent, without drawing criticism or allegations of conflict of interest.

[69] The Respondent submits the Applicant’s failure to comply with a direction from her employer is not the reason for her termination. It submits the critical issue was the Applicant’s continued behaviour in maintaining contact with Person A in circumstances where her role at the School was as a counsellor for the students, and a member of the Student Wellbeing committee with responsibility to identify and provide appropriate counselling for students. In its submission this was an irreconcilable conflict of interest with her desire to maintain contact with Person A. It was compounded by her complete lack of recognition and insight into this situation, demonstrated in the written response provided on 25 July and provided, on any objective assessment, the valid reason for termination.

[70] I have no doubt the Principal believed he had a sound and defensible “valid reason” for dismissing the Applicant. Given the circumstances he was dealing with, and his priorities at the time, he likely believed he had no other option. He was dealing with a critical situation in the life of the School. A senior teacher had been arrested on charges involving students at the School. The Principal’s evidence was that, quite properly, his priorities in response were the students, the School itself, and the broader School community. He made what was at the very least, a heartfelt request to staff to have nothing to do with the accused. He had earlier made known his concern when three staff members attended the first court hearing. He was then informed by the Police, seven months later, that a staff member had again attended the court. She is observed taking notes and possibly exchanging a smile with the accused. She is a person who has responsibility for counselling students, and is a member of the School’s Student Wellbeing committee. The Principal meets to discuss this situation. He gives her a letter setting out his concerns and proposing a meeting in the following week to discuss her response. That meeting does not take place because the teacher is ill and off work, however, a written response is provided.

[71] That response is not aggressive in tone, but does seek to defend and explain her actions. It suggests the statement about staff having no further contact with Person A was a “preference” rather than “an explicit instruction”. 28 In any case the Principal had acknowledged he could not tell staff what to do in their own time. She also indicates her contact had been minimal and made known to the Principal in a brief discussion “in late 2011”.29 She had accordingly been “transparent in disclosing that I had maintained some limited contact”.30 She also denied any conflict of interest between her role at the School and her actions in connection with Person A, and had sought to explain and justify her attendance at the court. She stated:

“...it never occurred to me that I would need to check with you as my attendance in court occurred during school holidays ...” 31

[72] In short, it was not a contrite response, or one which expressed regret, or an intention to comply in future with what the Principal wanted. In all the circumstances the Principal’s decision to terminate the Applicant’s employment can be readily understood, given his priorities at the time and the interests he was endeavouring to safeguard. However, in the context of the Act and its requirements, can it be said there was a “valid reason” for the decision that was sound, defensible and well founded on any objective analysis? A number of factors are relevant in this context.

[73] The Applicant says she told the Principal in November 2011 about her limited contact with Person A and the nature of that contact. (The Principal did not deny this discussion took place, although he could not recall it.) The Applicant attended the November 2011 staff meeting but, like others present, interpreted the Principal’s comments as a request, rather than a direction, and one qualified in any case by an acknowledgement he could not control what staff did in their own time.

[74] The Applicant’s motives in wanting to maintain some contact with Person A were a product of her Christian beliefs and a desire to provide spiritual support to someone in need. She was not taking sides and, in any case, ended all contact when he pleaded guilty. Whilst the Applicant was aware of the Principal’s concern when she and other staff members attended an earlier court hearing, she was also aware TL had attended another hearing, and he had not sought to dissuade her from attending at the hearing in July, (although his evidence was that in retrospect he was mistaken in giving this advice. TL also attended the previous hearing with the Principal’s knowledge and consent, although the Applicant was not to know this was the case.) The July court hearing also occurred during school holidays, rather than in term time. For all these reasons it is possible the Applicant was not aware of the depth of concern about staff being present in the court.

[75] The Applicant also provided an explanation for her attendance, based on her previous experience as a counsellor with the Salvation Army, and a view her role as a counsellor at the School could be enhanced by full knowledge of what was occurring. She said her attendance at court had been discussed in the Wellbeing committee meetings and there had been no suggestion she should not attend, although the evidence of SS, in particular, was that the Applicant was determined to attend regardless of what others thought.

[76] Despite the views about her contact with Person A, and her attendance at court being a conflict of interest, there is no evidence of any actual issues emerging as a result. Her communication was by text message and not disclosed to anyone else. Her attendance at court did not appear to result in complaints being received by the Principal or others at the School (apart from the response from the Senior Detective). There was no evidence of any actual conflict in her role as a counsellor at the School, or of concerns being raised by students or parents about her actions or conduct.

[77] Furthermore, it was unfortunate, in my view, that the Principal and the Applicant did not meet as originally intended. That meeting did not take place because the Applicant was unwell and not at work. She provided a written response instead. If the meeting had taken place it is possible some agreement might have been reached about what would occur in future in regard to actions associated with Person A. Conversely, if that accommodation or agreement was not able to be reached it might have become clear that an ongoing relationship could not continue and the Principal had a “valid reason” to terminate the Applicant’s employment. However, the meeting did not take place and the discussions that might have crystallised the respective positions of the participants did not eventuate.

[78] I have already indicated that in the circumstances the Principal was dealing with his decision to terminate the Applicant can be understood. Indeed, he may have felt he had no other option given his desire to do and be seen to be doing everything possible to safeguard the interests of the School and its students. However, on an objective analysis I am not satisfied it was a sound, defensible and well founded decision when assessed in terms of the Applicant’s conduct and the impact upon her. I am accordingly not satisfied a valid reason existed in all the circumstances for the decision to terminate her employment.

(b) whether the person was notified of that reason;

[79] The Applicant was notified of the reason for her termination in the letter provided to her by the Principal dated 10 August 2012.

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

[80] The issues in this matter relate to the conduct of the Applicant. She received a letter from the Principal dated 20 July 2012, which set out a number of concerns and a series of questions he sought responses to. It proposed a meeting take place in the next week so that the Applicant could respond. However, because she was off work due to illness that meeting did not take place. Instead, she provided a written response on 25 July. There were no further discussions between the parties after that point.

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal;

[81] There is no evidence of any unreasonable refusal in this context. The Applicant and the Respondent met on 18 July and the Applicant was offered and took up the opportunity to have a support person present.

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

[82] The issues in the present matter are concerned with the Applicant’s conduct rather than unsatisfactory performance. In any case the Applicant was provided with the opportunity to provide an explanation for her conduct prior to the Respondent’s decision to terminate her employment.

(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;

[83] The School cannot be said to be a small employer in terms of staff numbers and there is no evidence of any significance that its size impacted on the procedures followed in regard to the Applicant’s 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;

[84] The evidence indicated the School did not have a dedicated human resource specialist on the staff and employment issues were dealt with by the Principal and the School’s Business Manager. The submissions and evidence also indicated the Principal had obtained legal advice concerning the issues he was dealing with and advice was obtained before the decision taken to dismiss the Applicant. There was no evidence of any significance to suggest the absence of dedicated HR staff impacted on the procedure followed in terminating the Applicant’s employment.

(h) any other matters that the FWC considers relevant.

[85] The Applicant was 58 years of age and in reality has a limited period of potential employment remaining. She had also been employed by the School for a period of seven years.

[86] I have already made reference to relevant authorities concerning the importance of “valid reason” in any unfair dismissal application. Given the finding that I have made about the absence of a “valid reason” in this matter I am satisfied the decision to terminate the Applicant was harsh and accordingly in the context of section 385 of the Fair Work Act she was unfairly dismissed.

Remedy

[87] Section 390 of the Fair Work Act provides 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.” 32

[88] I am satisfied the Applicant is a person protected from unfair dismissal at the time of her termination and I have determined she has been unfairly dismissed. The Applicant has indicated reinstatement is not sought by way of remedy as it would be inappropriate in all the circumstances. I am also satisfied reinstatement would be inappropriate. The School has clearly experienced a situation during the past 18 months that has caused much distress and anguish, particularly for the Principal and no doubt the Applicant. The Principal believes the Applicant’s role at the School was conflicted by her conduct and actions in that unfolding situation. He believes they constituted a breach of trust. He questions her judgement and good sense given her role as a counsellor at the School.

[89] These matters go to the heart of the relationship and I agree with the Applicant’s submissions it would be inappropriate, if not impossible, to re-establish a realistic working relationship. I turn therefore to consider whether an order for payment of compensation is appropriate.

[90] Section 392(1) of the Act provides:

“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.” 33

[91] Section 392(2) lists a set of “Criteria for deciding amounts” I must take account of in determining any order for the payment of compensation. It states:

“(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.” 34

[92] These provisions reflect criteria and an approach developed through decisions of this Tribunal and its predecessor, including the Full Bench decision in T. Sprigg and Paul’s Licenced Festival Supermarket 35which remain relevant when considering orders for payment of compensation. I now turn to consider those criteria in terms of what, if any, compensation is appropriate to be paid to the Applicant.

(a) the effect of the order on the viability of the employer’s enterprise;

[93] There were no submissions made or evidence provided suggesting an order for compensation would impact on the viability of the “employer’s enterprise”. I am satisfied this is not a relevant consideration in this matter.

(b) the length of the person’s service with the employer;

[94] The Applicant had been employed by the School for almost seven years at the time of her dismissal. This is a significant period of service with one employer, although it is not uncommon to find employees with significantly longer periods of service. The Applicant had not, for example, gained an entitlement to long service leave.

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed;

[95] It is always a matter of some speculation about how much longer a person would likely be employed and how much remuneration they could be expected to earn, if not for their dismissal. The Applicant in the present matter was 58 years of age at the time she was dismissed and could quite clearly, on one view, have continued in employment at the School for several more years. Conversely, there had been some performance issues in the recent past, and she was off work at the time of her termination because of health issues. As indicated, it is always difficult to estimate with any precision the remuneration a person would be likely to receive if not for their dismissal. However, it is reasonable to assume the Applicant could have been employed for at least another one or two years and earned a corresponding amount of remuneration. Her salary at the time of her termination was $76,431 per annum.

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal;

[96] The Applicant indicated she had been making efforts to mitigate her loss by looking for work elsewhere. She had applied for five different positions without success. She also remained in receipt of medical advice, at least in the short term, indicating she was not fit to return to work at present. Her ability in this regard was accordingly limited. She had made an application to Centrelink, and was in receipt of payments from Centrelink in the sum of $492 per fortnight. She had also made a WorkCover claim that was still being assessed at the time of the hearing.

(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;

[97] The evidence indicated the Applicant had not earned any remuneration during this period for the reasons indicated above.

(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;

[98] There was no evidence indicating the Applicant had earned any remuneration or whether she was likely to earn any remuneration during this period.

(g) any other matters that FWC considers relevant;

[99] The Applicant’s age, family responsibilities and state of health all have the potential to impact on her ability to obtain work at some point in the future. At the same time these factors, apart from the recent health issues, had not prevented her from being employed by the School for a significant period of time. She is both a qualified teacher and counsellor, having worked in that latter role in a school environment and elsewhere. This combination of skills and experience could likely mean she is able to find other employment when fit to return to work.

[100] The Applicant also received a payment of $13,375 at the time of her termination, representing the money attributed at that point to her future long service leave entitlements, even though she had not reached the required length of service that obliged the School to make this payment. The Applicant submits this amount should not be considered or deducted from any compensation paid to her because it was in recognition of past service, rather than compensation for work not performed in the future. The Respondent submits it should be taken into account because, like the seven weeks pay in lieu of notice, it does act to mitigate the adverse effects of her termination.

[101] The Applicant seeks compensation equal to 19 weeks remuneration ($27,926 plus 9% superannuation). This amount is based upon her having been out of work for 24 weeks at the time the submission was made. She was paid seven weeks pay in lieu of notice ($10,288). The maximum entitlement is 26 weeks and the Applicant submits seven weeks should be deducted from this amount, given the pay in lieu of notice she received. Hence the claim for an amount of compensation equal to 19 weeks remuneration.

[102] Section 392(3) of the Act under the heading “misconduct reduces amount” also states:

“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.” 36

[103] It is appropriate to consider whether these provisions are relevant in the present matter. The Fair Work Act does not contain a definition of misconduct (although serious misconduct is defined in the Regulations.) What constitutes “misconduct” was considered in the matter of Pillai v Messiter (No 2) 37 where the court held:

“... In the United States, misconduct generally means wrongful, improper or unlawful conduct, motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one’s acts. Similar approaches to the meaning of the word “misconduct” have been taken in Australia .... The primary dictionary meaning confirm that this is also the way “misconduct” is used in everyday speech.” 38

[104] The fourth edition of the LexisNexis Concise Australian legal dictionary also refers to a definition of misconduct in the following terms:

“Wrongful, improper, or unlawful conduct, motivated by deliberate purpose or by obstinate indifference to the consequences of one’s acts. Misconduct may involve gross negligence, or a deliberate departure from accepted standard so as to portray indifference and an abuse of the privileges.”

[105] In the decision of Tabro Meat Pty Ltd v Kevin Heffernan 39 the Full Bench considered whether the Commissioner at first instance had erred in not reducing the amount of compensation awarded on the basis of the employee’s misconduct. The Full Bench did deduct 15% from the amount because the reasons for dismissal involved a serious health and safety breach and the Applicant swearing at the Managing Director.40

[106] I have indicated in this decision the Applicant’s conduct in attending the court proceedings in July was at least ill advised. Her ongoing contact with Person A falls into the same category, given her role at the School. It might also have been prudent and sensible to respect and adhere to the Principal’s clear desire and intent that staff have no further contact with Person A from the time that request was made. However, having considered the circumstances and the decisions referred to I am not satisfied her conduct, and any subsequent failure to modify her behaviour, can be considered to be “misconduct” in the context of section 392(3) to warrant a reduction in the amount of any compensation paid to her.

[107] I have already made reference to the submissions about the payment related to the Applicant’s accrued long service leave payments. The Respondent was under no legal obligation to make this payment. It was an amount calculated on the basis of her past service but made, as the Principal’s evidence indicates, to “minimise the impact on the Applicant” 41 in terms of her future. I am accordingly satisfied it is appropriate to deduct this payment from any order for compensation made.

[108] The Applicant seeks a payment equivalent to 19 weeks remuneration or $27,926.96. That amount should be reduced by the sum of $13,375 given the long service leave related payment she received, leaving an amount of $14,551.52.

[109] I also believe it appropriate to reduce the amount for contingencies, particularly those associated with the vagaries about likely future earnings, and the fact she is to receive a lump sum payment. Her WorkCover claim was also unresolved at the time of the hearing. The authorities indicate the appropriate amount will depend upon the circumstances of the particular matter. Based on relevant authorities I consider a figure of 15% should be applied in the present matter, leaving an amount of $12,368.79. 42

[110] I am satisfied this amount is appropriate taking into account the payments already made to the Applicant, and the likelihood of her obtaining employment in the future. I am satisfied in all the circumstances it accords “a fair go all around” to both parties. An order will issue to the effect that the Respondent is ordered to pay to the Applicant an amount of compensation in the sum of $12,368.79 and for that amount to be paid within 21 days of the date of this decision.

COMMISSIONER

Appearances:

Mr A Galbraith of counsel on behalf of the Applicant.

Mr J Tracey of counsel on behalf of Respondent.

Hearing details:

Melbourne

2013

February, 4 and 5.

1 Fair Work Act 2009 (Cth) s.594.

2 Transcript at PN1195.

3 Witness Statement of Applicant dated 23 November 2012, at [14].

4 Witness Statement of Applicant dated 1 February 2013, at [20].

5 Exhibit G4 at Attachment GAH3.

6 Ibid.

7 Exhibit G4 at Attachment GAH2 at page 2.

8 Transcript at PN330.

9 Transcript at PN338.

10 Exhibit G1 at para 4.

11 Exhibit G2 at para 3.

12 Witness Statement of RL dated 31 January 2013, at [5].

13 Respondent’s Outline of Submissions, at [8].

14 Witness Statement of TL dated 17 December 2012, at [6].

15 Witness Statement of TL dated 17 December 2012, at [6].

16 [2011] FWAFB 7498 (Unreported, Giudice J, McCarthy DP, Simpson C, 22 November 2011).

17 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 (Unreported, Giudice J, McCarthy DP, Simpson C, 22 November 2011), [20].

18 (1995) 185 CLR 410.

19 Byrne v Australian Airlines Ltd (1995) 185 CLR 410, [465].

20 (2011) 207 IR 243.

21 Parmalat Food Products Pty Ltd v Wililo (2011) 207 IR 243, [24].

22 (1995) 62 IR 371.

23 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, [373].

24 (Unreported, AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 1999) Print R4471.

25 Rode v Burwood Mitsubishi (Unreported, AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 1999) Print R4471, [19]

26 (2004) 133 IR 458.

27 Potter v WorkCover Corporation (2004) 133 IR 458, [53].

28 Exhibit G4 at Attachment GAH2 at page 2.

29 Ibid at page 1.

30 Ibid.

31 Ibid.

32 Fair Work Act 2009 (Cth) s.390.

33 Ibid at s.392(1).

34 Ibid as s.392(2).

35 (1998) 88 IR 21.

36 Fair Work Act 2009 (Cth) s.392(3).

37 (1989) 16 NSWLR 197.

38 Pillai v Messiter [No2] (1989) 16 NSWLR 197, [200].

39 (2011) 208 IR 101.

40 Tabro Meat Pty Ltd v Kevin Heffernan (2011) 208 IR 101, [32].

41 Witness Statement of Principal dated 17 December 2012, at [29].

42 Slifka v JW Sanders Pty Ltd (1995) 67 IR 316 at 328; Enhance Systems Pty Ltd v Cox (Unreported, AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001) PR910779 at [39] – [40].

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