[2016] FWC 1816

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christina Beamish
v
Calvary Health Care Tasmania Limited T/A Calvary Health Care Tasmania
(U2015/15092)

COMMISSIONER GREGORY

MELBOURNE, 25 MAY 2016

Application for relief from unfair dismissal.

Introduction

[1] Ms Christina Beamish began working with Calvary Health Care Tasmania Limited (“Calvary”) in Launceston in April 2008. She was originally employed as a Level 3 Clinical Nurse Manager. In July 2011 she commenced acting in the position of Assistant Director of Clinical Services (Clinical Services Coordinator) and was permanently appointed to that position in July 2012. She then worked on occasions as the acting Director until a permanent appointment was made in January 2015.

[2] In November last year Calvary’s CEO in Launceston, Mr Grant Musgrave, informed Ms Beamish about allegations of various inappropriate email exchanges between her and Ms Anne Handley, who was at the time the Director of Clinical Services. The details were set out in a letter given to Ms Beamish in a meeting on 3 November. She provided a written response on 6 November, and met again with Mr Musgrave and Ms Allison Campbell, the Director of Clinical Services, on 10 November to discuss her response. However, she was then dismissed on the following day.

[3] Ms Beamish subsequently filed an unfair dismissal claim. This Decision deals with that application.

[4] Mr Andrew Cameron of Andrew Cameron & Associates appeared on behalf of Ms Beamish. Ms Samantha Masters of Page Seager appeared on behalf of Calvary. Both were given permission to appear under s.596(2)(a) as the application involves a degree of complexity and their involvement would enable it to be dealt with more effectively.

The Issue to Be Decided

[5] Section 385 of the Fair Work Act 2009 (Cth) relevantly provides that:

“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;” 1

[6] Section 387 continues to set out the criteria that the Commission must take into account in considering whether a dismissal is harsh, unjust or reasonable. It states:

“In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

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

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

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

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

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.” 2

[7] This Decision deals with the application by Ms Beamish in the context of these legislative provisions.

The Evidence and Submissions

[8] The submissions provided on behalf of Ms Beamish indicate she was first employed by Calvary in April 2008 as a Level 3 Clinical Nurse Manager. In July 2011 she was appointed as a Level 4 Clinical Services Coordinator working across both the St Vincent’s and St Luke’s Hospitals in Launceston. Between August 2014 and January 2015 she also acted as the Director of Clinical Services until a full-time appointment was made when Ms Anne Handley was appointed. However, Ms Handley was then dismissed in October.

[9] Ms Beamish was terminated on 11 November 2015 as a result of “breaches of Calvary’s Code of Conduct, Responsible Use of Technology Policy and Workplace Behaviour Policy.” 3 The breaches concerned the content of various email exchanges between Ms Beamish and Ms Handley in September and October last year. The letter from the CEO, Mr Grant Musgrave, confirming Ms Beamish’s dismissal indicated in conclusion:

“Due to your breaches of various policies, your senior position and the resulting break in trust, your employment will be terminated effective from Wednesday 13th November 2015.” 4

[10] The examples of the exchanges between Ms Beamish and Ms Handley are as follows:

“1. 4 September 2015: You wrote the following when forwarding an email titled: “From Ed – Accreditation:”
“I really need a bucket now”

2. 16 September 2015: you wrote the following in response to an email titled “His Holiness:”
“Oh dear mission meddling in clinical issues yet again…would a voodoo doll help us – I have pins!”
You received the following response:
“Forget pins I need a machete aimed at the neck!”

3. 18 September 2015: you wrote the following in response to an email titled: “RE: Manual Handling Program”:
“Pushy”
You received the following response:
“Scary and pushy so I will have to get to Anna early on Monday”
Your response was:
“Mmmmm well you can meet her in the flesh next week…”
And
“There’s always David Jones when you need to escape……or the Catholic Church in park opposite the Sheraton”

4. 29 September 2015: you wrote the following in response to an email titled: “RE: Annual leave not approved for this Christmas/New Year:”
“Mmmm Sue won’t fall unless pushed as she is extremely $$$$$ focused especially since her husband retired last December… (Remember the payment request for travelling time to Hobart!)”

5. 14 October 2015: you wrote the following response to an email titled “Re Parking”:
“Thanks perhaps our Mission Impossible and Standard 2 guru consumer groupie could give up his park and walk a block or two…”

6. 16 October 2015: you wrote the following after receiving titled: “RE: Workforce year-end planning, Dec ‘15/Jan ‘16 – please review before I finalise process – thanks”:
“Thanks – it will be interesting to see if he makes the new DOF work xmas for reporting and he had his usual 4 weeks off…”” 5

[11] The submissions provided on behalf of Ms Beamish make reference to each of the considerations in s.387 of the Act. However, she submits those contained in sub paragraphs (a), (f), (g) and (h) are of particular relevance in the context of this application.

[12] In regard to “whether there was a valid reason for her dismissal” Ms Beamish submits there is no evidence of any harm or damage caused by her actions, and no evidence provided to demonstrate the breaches warranted her dismissal. She also submits her actions did not constitute a breach of the Responsible Use of Technology policy, and were not an inappropriate use of that technology

[13] At the time the emails were sent Ms Beamish was located at Calvary’s St Vincent’s Hospital site and her Manager, Ms Handley, was located at the St Luke’s Hospital site. They therefore communicated primarily by email, including some communications that involved some more light-hearted exchanges.

[14] She submits in dealing with the issue of “valid reason” that the relevant emails were not a breach of the Code or policies or, if they were, they constituted a minor breach only. She also submits she was not responsible for the comments by Ms Handley in her responses to the emails. Ms Beamish also submits she has been employed by Calvary for more than seven years, and has not received any warnings in relation to her performance or conduct during that time.

[15] She also submits in the context of s.387(h) Calvary did not give sufficient weight to:

“ her substantial and unblemished length of service,

the senior role undertaken in a challenging work environment,

her exemplary work record and commitment to the Respondent,

the accolades provided when she stepped up as Acting DCS,

the remorse shown at the meetings and in writing.” 6

[16] Ms Beamish confirmed in her evidence that in the period from 4 August 2015 until 9 January last year she acted as the Director of Clinical Services until a replacement for the previous Director was found. She said that during this time the CEO told her, on more than one occasion, he enjoyed working with her, and later circulated two memos thanking her for her contribution during this period.

[17] Ms Beamish also submits no one else was aware of the content of the emails and they were a light-hearted means of debriefing between her and Ms Handley, in what was a stressful work environment. She submits that at all other times she performed her role and responsibilities in a professional manner, and there was no valid reason for her termination. She also submits other options such as counselling or a warning would have been more appropriate in all the circumstances, given her seven years of faithful and exemplary service.

[18] After Ms Handley was appointed to the permanent position of Director of Clinical Services in January last year Ms Beamish said she returned to her substantive role of Clinical Services Coordinator. All clinical staff attending to patient care reported to her in that role.

[19] She continued to indicate that after Ms Handley’s appointment a number of concerns were identified at both hospitals. One of these concerned the involvement in clinical issues by the Director of Mission, whose responsibilities involved the pastoral care staff and hospital volunteers. She said she raised these concerns directly with the Director of Mission, and also spoke to Mr Musgrave about what she considered to be inappropriate involvement in clinical matters.

[20] Ms Beamish confirmed she and Ms Handley often communicated by email given she was based at St Vincent’s and Ms Handley at St Luke’s. She said these exchanges often dealt with operational matters to do with their roles and responsibilities, but also included, “Debriefing emails between ourselves which were not intended for general consumption, taken out of context of our issues day to day, and were made in good humour.” 7

[21] Ms Beamish also relies on the explanations provided in her written response to the CEO dated 6 November, 2015, attached to her witness statement, which refers to each of the emails in question. Her responses can be summarised as follows.

Email dated 4 September 2015

[22] Ms Beamish indicated this email reflected her frustration in dealing with the Director of Mission and his comments and criticism of the delivery of clinical services. She was also reacting to an email from him that was contrary to the manner in which he usually dealt with the clinical team. She was also frustrated because no action had been taken in response to these concerns. “Thus, I forwarded a copy of the email to my manager with the comment referred to, expressing a frustration and concern with humorous imagery.” 8

Email dated 16 September 2015

[23] Ms Beamish said the subject line in this email was created by her Manager, and not by her. She also said she had no control over the response from Ms Handley. The context of the email again concerned the involvement of the Director of Mission in areas outside his expertise and control, and her reference to “a voodoo doll was a light-hearted comment as to one way of stopping his involvement.” 9 She said the email was only ever intended to be seen by Ms Handley, and was not sent to anyone else.

Email dated 18 September 2015

[24] Ms Beamish said in this case she was responding to an email from Ms Handley. She said she initially indicated her surprise at how another employee was attempting to organise a meeting at short notice. The other comments were made in the context of her understanding Ms Handley was not looking forward to going to a meeting she had been asked to attend in Sydney. She also said the email was not intended to be sarcastic when it referred to Ms Handley attending the nearby Catholic Church during the conference, and she was not aware at the time Ms Handley was not a practising Catholic. She again said she had no control over the response from Ms Handley.

Email dated 29 September 2015

[25] Ms Beamish said this exchange again needed to be taken in context, and was simply dealing with a particular staffing issue, based on her experience and Ms Handley being relatively new to the organisation. It was intended to inform and update Ms Handley about the staff members’ circumstances, and other staffing issues in the workplace.

Email dated 14 October 2015

[26] Ms Beamish again submits this email needs to be considered in context. In 2011 she was required to review the parking processes at both hospitals. As a consequence it was sometimes assumed she was still in charge of parking, and she received enquiries about parking availability. After receiving a copy of the email sent previously to the CEO she forwarded her tongue-in-cheek response to indicate she no longer had any control over these issues.

Email dated 16 October 2015

[27] Ms Beamish said this email again reflected her experience at Calvary, and the fact senior staff had previously taken holidays over the Christmas period, resulting in problems and delays with finance reports that needed to be signed.

[28] Her letter concludes:

“I acknowledge that some of the nicknames used in the private correspondence between myself and my manager were immature, and possibly inappropriate, but there was never any malice involved.

The comments were made tongue-in-cheek and provided an outlet for my manager and I to discuss work issues in a light-hearted manner that provided relief to the stress and pressures under which we both worked.

In relation to the Code of Conduct I do not see how any of the four pillars been breached (sic).

In relation to the Responsible Use of Technology Policy, each of the communications referred to were work related dealing with issues arising within the workplace.

In relation to the Workplace Behaviour Policy, I strongly deny that there has been any form of bullying or harassment. The communications were purely between the manager and myself and were not repeated to any person who could or would take any offence, if such offence was even possible.” 10

[29] She also said it was only after Ms Handley’s termination on 22 October that the email exchanges came to light, and they had not previously been seen by anyone, apart from Ms Dilger, the Executive Assistant to the Director of Clinical Services.

[30] Her evidence also indicated she believed her work performance during her time at Calvary “has been exemplary as evidenced in my performance reviews,” 11 and she had developed excellent working relationships with the Visiting Medical Officers, and with the CEO.

[31] Ms Beamish also said she met with Ms Allison Campbell, the Director of Clinical Services, after she received the initial letter of allegation and Ms Campbell told her, after reading the emails, that perhaps a warning would be sufficient, and she was very happy to continue working with her. She said Ms Campbell told her, after she had been terminated, she supported her and argued that she should not be dismissed.

[32] Ms Beamish also said she had developed a very good working relationship with Mr Musgrave, particularly over the last four years when she had been in more senior positions. She also believed she had a very good working relationship with the overwhelming majority of staff at the Calvary hospitals in Launceston.

[33] However, she acknowledged her relationship in the future with Mr Musgrave, if she were to be reinstated, might be “uncomfortable,” but she would be able to work with him in a professional capacity. 12 She made similar comments about any future relationship with Ms Campbell. She also indicated she had been able to maintain a professional relationship with the Director of Mission in the past, and provided an example of them both attending a ceremony two days before she was dismissed, and standing “side by side” at that commemoration.13 She also said any concerns about his performance did not preclude her from working with him in a professional manner.

[34] Ms Anne Handley was appointed to the position of Director of Clinical Services at Calvary in Launceston, and commenced in that role on 12 January 2015. She said she formed a very good working relationship with Ms Beamish, who was the Clinical Services Coordinator, and they often communicated by email because of their separate locations. She said, “The positions that Christina and I held were quite stressful and we would often use humour to break the tension and relieve the stress, not just for the other person but for ourselves.” 14

[35] She said she would often discuss staffing issues with Ms Beamish, and her experience and knowledge was particularly important, given she had only been at the hospital for a relatively short period of time.

[36] She said she became increasingly frustrated with the Director of Mission and his interference and involvement in clinical decisions and clinical matters generally. He started to visit her office on a daily basis to question her about clinical matters and this was a further on-going source of frustration. She acknowledged that “in good humour” she and Ms Beamish would sometimes refer to him as “Mission Impossible.” 15

[37] She indicated in conclusion that she did not find the particular emails disrespectful or offensive in any way and said “I found them to be relevant and occasionally humorous and certainly helped me deal with the stresses that came with the job.” 16

[38] Ms Handley said she was terminated from her employment at Calvary in Launceston on 22 October without being provided with any reason for her dismissal, and with half an hour to vacate the premises.

[39] Ms Stephanie Dilger has been employed at Calvary since 1990, and has been the Executive Assistant to the Director of Clinical Services for the past nine years. She said she was aware of the frustration Ms Handley and Ms Beamish experienced with the Director of Mission, and how he concerned himself with clinical matters and clinical decision-making.

[40] She said she was occasionally copied in on the emails exchanged between Ms Handley and Ms Beamish, and was aware they often used humour in those exchanges to deal with their stress and frustration. She said the emails were not seen by anyone else, and she was the only person with access to them.

[41] Calvary submits, in response, Ms Beamish was a senior employee who used its email network to engage in communications “which were disparaging, sarcastic and derogatory towards other staff, in particular, the Director of Mission…” 17 It continues to submit her behaviour discloses a lack of judgement and discretion, is inconsistent with Calvary’s values and expectations, and amounts to a serious breach of its policies. It also submits Ms Beamish has shown no contrition or remorse, or any acknowledgement her conduct was in breach of its policies. It submits as a consequence she has lost the trust and confidence required to continue as a member of Calvary’s Executive team.

[42] It continues to submit her conduct was a serious breach of the “core values that underpin the mission and spirit of the organisation.” 18 It refers, firstly, to its Code of Conduct and submits Ms Beamish has failed to meet the expectations set out in the Code, and its “four pillars” dealing with “Hospitality,” “Healing,” “Stewardship” and “Respect.”19 It also submits the language in the emails is in breach of that part of the Code that requires employees to refrain from “gossiping, judging and putting down others.”20

[43] It also refers to the “Responsible Use of Technology Policy,” and the reference in that policy to the “use of technology in a way which violates applicable laws, rules, policies, contracts or licences.” 21

[44] It finally refers to the “Workplace Behaviour Policy and Procedure,” and Ms Beamish’s failure to meet the expectation that “all employees, regardless of their role within the organisation…behave in a professional manner and…treat each other with dignity and respect.” 22 In its submission the emails, and the language used, are unprofessional and do not demonstrate a constructive approach to resolving any issues Ms Beamish and Ms Handley might have had.

[45] Calvary continues to submit these breaches provide evidence it had a “valid reason” to dismiss Ms Beamish, and previous Commission decisions have confirmed that disrespectful and disparaging comments made about another person in the workplace can constitute a valid reason for dismissal.

[46] Calvary continues to make reference to the other considerations in s.387 of the Act that the Commission must take account of, and submits those in sub sections (b) - (f) are of little or no relevance to the present matter.

[47] In considering “any other matters” the Commission might consider relevant it submits there is an absence of any reasonable excuse or justification for Ms Beamish’s conduct that might constitute extenuating circumstances to militate against her dismissal.

[48] It also makes the following submissions in regard to the matters relied upon by Ms Beamish. Firstly, it submits the emails were a breach of its policies, regardless of whether they were sent to other employees. In this context it notes Ms Dilger was also copied in on some of the communications. It also submits that if Ms Beamish and Ms Handley wanted to communicate in this way they could have done so in a truly “private setting,” or raised their grievances through Calvary’s Grievance Resolution Procedure. 23

[49] Calvary also submits Ms Beamish’s dismissal was not a disproportionate response, given her seniority, her failure to acknowledge or accept her conduct breached its policies, and the loss of trust and confidence that resulted from her inability “to demonstrate the judgement, discretion and professionalism expected of a senior employee.” 24

[50] It also submits her employment record was taken into account before the decision was made to dismiss her, and it does not excuse the serious nature of the breach of its policies. It also submits the apology offered by Ms Beamish, prior to the decision to dismiss her, was not genuine “as it was offered as an alternative to dismissal and in circumstances where the Applicant did not accept the seriousness of the misconduct.” 25

[51] Calvary submits in conclusion it:

“…had a valid reason for terminating the Applicant’s employment. The Respondent accorded procedural fairness to the Applicant. There is no harshness associated with the Applicant’s circumstances over and above the negative consequences felt by any dismissal.

The Applicant’s chosen response and attitude towards the misconduct has destroyed the trust and confidence necessary to continue the employment relationship. In these circumstances, the application should be dismissed.” 26

[52] Ms Allison Campbell is the current Director of Clinical Services at Calvary and was appointed to this position on 30 November last year. She said she had previously been the Acting Director since 28 October and Ms Beamish, in her role as Clinical Services Coordinator, reported to her.

[53] Ms Campbell said she was informed by the CEO, Mr Grant Musgrave, in early November that Ms Beamish had written some inappropriate emails and was to be interviewed about her behaviour. Ms Campbell said she was then provided with details of the emails, and was surprised a senior nurse had been involved in such exchanges. She attended the meeting on 3 November with Mr Musgrave and Ms Beamish and was again surprised when it became evident in those discussions Ms Beamish did not appear to understand the seriousness of the allegations, and sought to dismiss the content of the emails as light hearted banter.

[54] Ms Campbell said Ms Beamish’s behaviour posed a significant risk to the trust and confidence of members of the leadership team, and if she was to continue in employment at Calvary she required training to develop her professional and personal abilities.

[55] Ms Campbell also indicated in cross-examination she had been concerned at one stage about the Director of Mission breaching confidences. She also acknowledged she told Ms Beamish she had “seen worse” after reviewing the content of the relevant emails. 27 However, she also said it would be difficult to re-establish a trusting and workable relationship with her because of the judgement she had come to about her behaviour, given the content of the emails.

[56] Mr Grant Musgrave is the Chief Executive Officer of the Calvary Hospitals in Launceston, and has worked with the organisation in Tasmania since 1995. He indicated in his evidence that after Ms Handley commenced as the Director of Clinical Services in January 2015 he observed that she and Ms Beamish formed a strong working relationship. However, they also started to become disrespectful towards other colleagues and staff.

[57] He said it became obvious by their interactions and body language at the fortnightly Executive meetings that they had a particular issue with the Director of Mission, Mr Eric Van Galen. He said it got to the point where he felt it necessary at the beginning of each meeting to indicate he expected “the participants to abide by the hospitals values in their conduct at the meeting.” 28

[58] He confirmed Ms Handley and Ms Beamish did raise concerns with him about the Director of Mission leaking information, and about his interference in clinical matters. However, he also said, “It is appropriate that members of the executive challenge each other and are accountable to each other to ensure the effective and productive operation of the Launceston hospitals.” 29

[59] He also said Ms Beamish’s relationship with other staff was “mixed,” and since her departure some staff and doctors had indicated to him that they supported the decision to dismiss her. 30

[60] His evidence continued to indicate that in early November last year Ms Karagiannis, the National HR Manager for Calvary, provided him with copies of emails discovered when reviewing Ms Handley’s email inbox. He said that accessing the emails of a staff member, after they have left their employment at Calvary, is a normal course of action. After reviewing the emails he formed the view they were in breach of Calvary’s policies and Code of Conduct, and asked that a letter detailing the allegations be given to Ms Beamish. He said she was then invited to attend a meeting on the next day to discuss the allegations. He then received the written response from Ms Beamish in her letter of 6 November, but was disappointed with that response, particularly because she did not appear to consider the allegations to be serious, and instead viewed them as good-humoured.

[61] He said he then met with her again on 10 November, in the presence of a support person. Ms Beamish did not add to the comments in her earlier written response, but did offer to apologise. However, he said he didn’t consider this to be a genuine apology, because of the attitude she adopted about her conduct, and because she “had a genuine dislike for the Director of Mission.” 31 He said he then made the decision to terminate Ms Beamish’s employment in conjunction with advice obtained from the National Office.

[62] He continued to indicate that Calvary is a mission based organisation and it is expected every staff member will abide by its values and Code of Conduct. These are communicated to staff as “non-negotiables” 32 and as a senior staff member Ms Beamish was expected to be a role model in the organisation. He also said he could not see how she could continue as a member of the Executive Team, given the content of the emails, and her lack of appreciation about the seriousness of her conduct.

[63] He also confirmed in cross-examination that Ms Beamish and Ms Handley had raised issues with him about the Director of Mission, and him “leaking information to the pastoral care team.” 33 He also said as the Director of Mission came from a teaching background there was “a huge and significant learning curve for him to understand the role of Director of Mission.”34

[64] He also confirmed that prior to January 2015 he had a good working relationship with Ms Beamish that was established over a number of years.

[65] In regard to the content of the different emails he indicated in cross examination the reference to “I need a bucket now” was “entirely inappropriate.” 35 He also said he did not consider the reference to a “voodoo doll” to be a joke,36 and described the comment about Ms Tyson being “pushy” as “a little bit disrespectful.”37 He also said he found the tone of the email making reference to “David Jones” and “the Catholic Church and the park opposite the Sheraton” as “inappropriate.”38 He described the email concerning the Christmas holiday arrangements in a similar way, and said the reference in the email to “won’t fall, has to be pushed” used language he would not use.39 He finally said he would be “a little bit offended” by the comment in the email regarding the annual leave arrangements.40

[66] He said he was opposed to Ms Beamish being reinstated, and would have reservations about those occasions when she was required to step up to the role of Director of Clinical Services. He also considered there had been a breakdown of trust, and described the breakdown in relationships between the members of the Executive team as the principal reason why he did not consider counselling or a warning was appropriate, and instead decided to dismiss Ms Beamish.

[67] Ms Nicole Karagiannis is the National Human Resources Manager with the Calvary group and has responsibility for 10 private hospitals, including those in Launceston. She said that after Ms Handley was dismissed she requested access to her email inbox to check for any emails that might be relevant to Ms Campbell, who had been appointed Acting Director of Clinical Services.

[68] She said that after doing so she discovered the emails in question. She considered their content to be “very inappropriate.” 41 She provided copies to Mr Musgrave and discussed with him what action should be taken in response. In her view the emails were a clear breach of a number of Calvary’s policies, and this was particularly concerning given the seniority of Ms Beamish’s position.

[69] Ms Karagiannis said she was not present in the subsequent discussions that took place with Ms Beamish, but did discuss and review the situation with both Mr Musgrave and Ms Campbell. She said all employees are required to participate in training in regard to Calvary’s policies and procedures and, as a senior member of the staff, Ms Beamish was expected to be an advocate and role model for those “behavioural expectations.” 42

Consideration

[70] There is no dispute in this matter about the actions that led to the decision by the CEO of Calvary in Launceston, Mr Grant Musgrave, to terminate Ms Beamish’s employment. It stemmed from the content of six email exchanges between her and Ms Handley in September and October last year. The fact Ms Beamish apparently then failed to show any remorse for her actions also contributed to the decision to terminate her employment.

[71] The Commission is now required to determine whether Calvary’s decision to terminate Ms Beamish’s employment was harsh, unjust or unreasonable.

[72] The ambit of the conduct which comes within the phrase ‘harsh, unjust or unreasonable’ was considered in the often quoted decision in Byrne v Australian Airlines Ltd 43 when 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.” 44

[73] Vice President Ross, as he then was, in B Rose v Telstra Corporation Limited 45 (Rose) restated the above proposition, and also added (references omitted):

“In my view whether there has been a `fair go all round' is a matter which I think is relevant and hence I am to have regard to it determining whether the termination was harsh, unjust or unreasonable. It is not necessarily determinative but it is a factor to be taken into account.” 46

[74] As indicated, the Commission is also required to deal with the application taking into account each of the criteria in s.387. I now turn to deal with each of those considerations.

(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);

[75] The judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd 47 is again often referred to in considering what constitutes a “valid reason.” His Honour came to the following conclusions:

“The reasons of an employer for terminating the employment of an employee are solely within the knowledge of the employer. The employer may state a reason but that reason need not be the actual reason nor need it be the only reason. This is the rationale for the onus of proof provisions contained in s 170EDA.

Section 170DE(1) refers to ‘‘a valid reason, or valid reasons’’, but the Act does not give a meaning to those phrases or the adjective ‘‘valid’’. A reference to dictionaries shows that the word ‘‘valid’’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: ‘‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’’ In the Macquarie Dictionary the relevant meaning is ‘‘sound, just, or well founded; a valid reason’’

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly…” 48

[76] In Parmalat Food Products Pty Ltd v Wililo 49 the Full Bench also concluded that:

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.” 50

[77] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 51 (“Australian Postal Corporation”) also provides a useful summary of the approach to be taken by the Commission in weighing the factors to be considered:

“Reaching an overall determination of whether a given dismissal was "harsh, unjust or unreasonable" notwithstanding the existence of a "valid reason" involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:

(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;

against

(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.” 52

[78] It follows from reference to these authorities that a “valid reason” is one that is “sound defensible and well founded,” as opposed to one that is capricious, spiteful or prejudiced. It must also be valid in the context of both the employee’s capacity or conduct and the operational requirements of the business. The test must also be applied in a practical, common sense way to ensure the parties are treated fairly in circumstances where each has rights and privileges, but duties and obligations as well.

[79] As the Decision of the Full Bench in Australian Postal Corporation also makes clear consideration of “valid reason” inevitably involves weighing various considerations, including the conduct involved and any other mitigating or other relevant matters. I have sought to adopt the approach of these authorities in coming to a Decision in this matter.

[80] The content of the particular emails are obviously critical to the decision to terminate Ms Beamish’s employment, and require those exchanges between her and Ms Handley in September/October last year to be reviewed. I make the following broad observations at the outset about their content. Firstly, some are more significant than others in terms of their content and, secondly, those that make reference to other senior staff members are, at best, ill-advised. I am also satisfied they are exchanges which normally would have been contained in conversations between two colleagues if they worked at the same location, but were instead exchanged in emails because they were each based at the different Calvary Hospital sites in Launceston.

[81] I now turn to consider the evidence concerning the content of each email.

4 September 2015 – this email was sent by Ms Beamish to Ms Handley after Ms Beamish received an email from the Director of Mission, Mr Van Galen. The evidence of Ms Beamish is that the content of the email reflected her frustration with the actions of the Director of Mission, and the failure of anything to be done in response. Ms Beamish said she expressed that frustration and concern with what she described as “humorous imagery” in the reference to “I really need a bucket now.” Mr Musgrave in his evidence described the content of the email as “entirely inappropriate,” and an example of the breakdown in trust between members of the Executive team. I accept that Ms Beamish was frustrated at the behaviour and actions of the Director of Mission and, in this case, at what she considered to be his lack of sincerity. However, I am also satisfied it was inappropriate and ill-advised for her to communicate in this way with another staff member about the email received from the Director of Mission.

16 September 2015 – the evidence of Ms Beamish is that this email was sent by her in response to an email from Ms Handley. The subject heading and the more extreme references in the email can be attributed to Ms Handley. Ms Beamish also indicated her response again reflected her frustration with the Director of Mission, and his involvement in areas outside of his expertise or control. Her “voodoo doll” reference was accordingly a light-hearted reference to one way of bringing this situation to an end. She also said her comments reflected the views she and Ms Handley had previously expressed directly to the Director and to the CEO. Mr Musgrave indicated in response he did not consider the content to be a joke, and it provided a further example of the breakdown in the relationship between Ms Beamish and a senior member of the Executive team. I am satisfied again the references to a “voodoo doll” and “pins” by Ms Beamish are clearly unfortunate and ill-advised.

18 September 2015 – Ms Beamish’s evidence indicates she was again responding to an email received from Ms Handley and her initial response was simply an indication of surprise at the actions of another employee. The remaining content in the email was made in the context of her understanding Ms Handley was not looking forward to being required to attend a forthcoming meeting in Sydney. She also said she had no control over the subsequent response from Ms Handley. Calvary’s CEO, Mr Musgrave, indicated in his evidence he found the tone of the email to be “inappropriate.” This email, firstly, appears to involve Ms Beamish providing information to Ms Handley, who was unaware of these matters because she had only been employed at Calvary for a relatively short period of time. The further references to “David Jones when you need to escape,” and the “Catholic Church,” can be viewed in the context of Ms Beamish being aware Ms Handley was not looking forward to having to attend a forthcoming conference in Sydney. The evidence also indicates Ms Beamish was not aware at the time that Ms Handley was not a practising Catholic.

29 September 2015 – Ms Beamish’s evidence indicates this email was dealing with some staffing issues she felt Ms Handley needed to be aware of. The evidence of Mr Musgrave was that the email contained language he would not use.

14 October 2015 – the evidence indicates the references in this email to “Mission Impossible” and “Standard 2 guru consumer groupie,” 53 and the suggestion the Director of Mission might give up his car park are clearly unfortunate references about a senior staff member at the hospital, and this is acknowledged by Ms Beamish.

16 October 2015 – the evidence of Ms Beamish is that her response to an earlier email she received from Ms Handley again reflected her experience of working at Calvary over an extended period, and the fact that problems had occurred in the past with senior staff not being available during the Christmas/New Year period to sign off on required financial reports. Mr Musgrave indicated in response “he would be a little bit offended” by the words used by Ms Beamish. The explanation provided by Ms Beamish is acknowledged, but I am also satisfied the content of the email contains some implied criticism of senior staff members, which should not have been contained in an email communication between two other senior staff members.

[82] As indicated, I am satisfied that at least some of the references in the emails, particularly those involving other senior staff members, are unfortunate and ill-advised. I am also satisfied they constitute a breach of some of the values and behaviours in the Code of Conduct and policies that Calvary seeks to have its staff abide by and adhere to.

[83] In this context the Code of Conduct does contain references to avoiding conduct which involves “gossiping, judging and putting down others,” which the content of the emails could be described as containing. 54 The Responsible Use of Technology Policy also refers to the use of technology in a way which “violates applicable laws, rules, policies, contracts or licences.”55 Ms Beamish’s actions can again be said to have been in breach of policies Calvary had in place. However, they do not appear to involve a breach of any “laws, rules, contracts or licences.” The policy also uses the word “violates,” which appears to imply that a contravention needs to one of some significance.

[84] The authorities also make clear that in considering the issue of “valid reason” it is necessary to have regard to any matters or circumstances that should be taken into account in mitigating or explaining the behaviour or actions cited as the reason for dismissal. I am satisfied that various matters need to be considered in the context.

[85] Firstly, I accept that an organisation established by a religious order might be expected to place greater emphasis and significance on adherence to its credo and values in all aspects of its activities. In this case these values are described by Calvary as being reflected in the so-called “four pillars” of its Code of Conduct. The four pillars in the Code are “Hospitality, Healing, Stewardship and Respect.” I also accept that this might place a greater onus upon employees to comply with the requirements of the Code. It might also mean that a breach of those obligations is viewed more seriously than it would be in an organisation that does not have the same religious foundation and background.

[86] However, it might also be expected in these circumstances that these same values and tenets will be followed and adhered to by Calvary in all of its dealings, including those involving its employees. Ms Beamish has arguably been dealt with harshly when this is taken into account.

[87] Calvary also submits Ms Beamish’s failure to acknowledge or recognise her behaviour constituted a breach of its Code of Conduct and policies contributed to it deciding that a valid reason existed to justify her dismissal, although this is not specifically referred to in the letter of termination provided to her on 11 November. After setting out the content of each of the 6 emails the letter continues to state:

“You provided a written response on 6 November 2015 addressing the allegations and why your employment should not be terminated. In your response, you indicated that your comments were made due to frustration, were tongue in cheek and privately with your Manager. You also provided context for each of the examples.

A meeting to discuss the matter further occurred on 10 November 2015 and the following was discussed:

you were advised that the allegations were substantiated following the consideration of your response

you indicated again your frustration and need to express that with your Manager

you were advised that despite your frustrations and context provided, your conduct did not align with the expectations of the Senior Leader in the organisation and your use of technology in this inappropriate manner has impacted on Calvary’s ability to trust you going forward

you were asked if you have considered a way forward for the Executive team and you responded with:

That you offered an apology for the distress caused

That you were prepared to draw a line in the sand and have a fresh start and that you wanted to continue working for Calvary

Calvary has carefully considered your written and verbal responses and the facts. Due to your breaches of various policies, your senior position and the resulting break in trust, your employment will be terminated effective from Wednesday 13 November 2015.” 56

[88] The letter does acknowledge Ms Beamish did apologise “for the distress caused,” and was prepared to make “a fresh start” in regard to her future employment at Calvary. 57 I also note her letter of 6 November, in response to the allegations put to her about the emails, states, “I acknowledge that some of the nicknames used in the private correspondence between myself and my manager were immature, and possibly inappropriate, but there was never any malice involved.”58 However, it is also acknowledged she continues to indicate in that letter she does not see how her actions have breached the Code of Conduct.

[89] Despite this I am satisfied from the evidence, and Ms Beamish’s demeanour in the witness box, that she is clearly contrite and aware her actions were inappropriate. I am also satisfied as a consequence it is most unlikely she will ever be involved in anything similar again.

[90] I am also satisfied there was no intention or expectation by either Ms Handley or Ms Beamish that the content of the emails would ever be disclosed to anyone else, other than those copied into Ms Dilger, who was clearly a trusted Executive Assistant to Ms Handley. This was perhaps a naive assumption, as it is clearly always possible that the content of emails exchanged at work will be reviewed or revealed to others, as the circumstances in this matter demonstrate. However, in this case it was only after Ms Handley’s contract was not renewed, and she had left Calvary, that her emails were reviewed, and the offending emails discovered. If Ms Handley had not been dismissed it is likely the emails would never have seen the light of day and, in this context, Ms Beamish can perhaps be seen as “collateral damage” to the circumstances involving Ms Handley. This does not necessarily excuse her behaviour, but does provide some explanation for it. I am also satisfied it acts to diminish the significance of her actions. Their impact would clearly have been much more significant if the email exchanges had been sent to a wider audience at Calvary.

[91] In addition, the emails only involve Ms Beamish and Ms Handley, and in most instances Ms Handley sent the first email to which Ms Beamish responded. The evidence of Mr Musgrave indicates Ms Handley was not a good fit for Calvary, and her contract was not renewed after a period of employment of less than one year. To this extent Ms Handley’s involvement can be seen to provide some excuse or explanation for Ms Beamish’s uncharacteristic behaviour. Ms Handley was also her Manager, and this might have emboldened or provided Ms Beamish with some justification for her actions. The fact Ms Handley is no longer employed at Calvary again adds weight to the conclusion it is most unlikely Ms Beamish will ever be involved in any repetition of this behaviour.

[92] Ms Beamish also submits some of the expressions used in the emails were simply
light hearted banter between two colleagues at work, and a means to let off steam in a demanding and stressful working environment. As indicated already the offending comments were likely contained in emails rather than in direct conversation, where they would not have been revealed, as Ms Handley and Ms Beamish were based at different locations. The evidence also makes clear Ms Beamish worked in a difficult and demanding working environment, and was ultimately responsible for all of the clinical staff employed at the two Calvary hospitals in Launceston. In these circumstances it is perhaps not surprising that two colleagues might engage in some light hearted exchanges in dealing with the issues they encountered on a daily basis. Again, this does not excuse Ms Beamish’s actions, but does provide some explanation for them.

[93] I am also satisfied it is significant that the content of the emails do not disclose any wilful or deliberate intent to cause harm to the organisation, or to individuals within the organisation. While they do include various nicknames, and attempts at humour, they are also dealing with staffing and other issues which had arisen in the workplace at the time, and needed to be dealt with and resolved. As indicated, those same concerns had also been raised through what was described as the “appropriate channels.” However, there is nothing that suggests there was anything in the content of those emails that can be described as malicious, or to have consequences that would result in harm or detriment to anyone at Calvary, or to the organisation itself. In fact, Ms Beamish, in particular, appears to have acted at all times with the best interests of Calvary as a priority.

[94] Clearly, the most significant content in the emails concerns the references to the Director of Mission. In this context I am satisfied it is significant that both Ms Handley and Ms Beamish had previously been upfront about their concerns with Mr Van Galen, and had sought to have them dealt with through the appropriate channels. Both had raised their concerns with both the CEO, Mr Musgrave, and with the Director himself. The content of the emails can be better understood in this context. It is also noted that while Mr Musgrave indicated in his evidence he had not been able to substantiate the concerns raised by Ms Handley and Ms Beamish, he did acknowledge the Director came from a different background, and was taking time to gain an appreciation and understanding of how the Hospital works. He also said he was being provided with assistance to develop his understanding about what the role and his responsibilities required.

[95] The evidence of Ms Campbell and Mr Musgrave is also relevant in terms of the content of the emails. Ms Beamish’s evidence is that Ms Campbell told her she had “seen worse” after being provided with copies of the emails, although she subsequently seems to have come to a different view. Mr Musgrave also uses various descriptions about the content of the emails including “entirely inappropriate,” “a little bit disrespectful,” “inappropriate,” and “a little bit offended”, although he also made reference in the broader sense to how he believed the emails demonstrated a breakdown in the relationships between senior staff in the organisation. However, these relatively muted descriptions about the content of the emails are difficult to reconcile with the decision that was ultimately taken to terminate Ms Beamish’s employment.

[96] Ms Beamish’s length of service at Calvary, and more importantly her employment record during that time, are also significant considerations in terms of whether Calvary had a valid reason to dismiss her. Despite some submissions which sought to raise issues about her performance, and her relationship with other employees, including some Visiting Medical Officers, these were not able to be substantiated in cross-examination. I am satisfied instead that the evidence indicates Ms Beamish was a valued and committed member of the team at Calvary, who had occupied senior roles in the organisation over an extended period of time in a difficult and demanding working environment. These circumstances are clearly significant and contribute to a view that the “punishment did not fit the crime.”

[97] I have already acknowledged that Ms Beamish’s actions were at best unfortunate and ill-advised. I have also acknowledged that they appear to constitute a breach of Calvary’s Code of Conduct and its Responsible Use of Technology policy. These breaches assume greater significance given Ms Beamish’s seniority in the organisation. However, I have also made reference to various matters, which I am satisfied provide some explanation for her actions, and also act to militate against their significance. After weighing all of these considerations I am unable to conclude Calvary had a “valid reason” to dismiss Ms Beamish.

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

[98] Ms Beamish was notified of the reason for her termination in the letter from Mr Musgrave provided to her on November 2015.

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

[99] Ms Beamish was provided with the opportunity to respond to the issues raised about her conduct, and did so, both in her letter of 6 November, and in her subsequent discussions with Mr Musgrave and Ms Campbell in the meeting on 10 November.

(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;

[100] Ms Beamish was provided with the opportunity to have a support person present in the discussions on 10 November, and her legal representative, Mr Cameron, attended the meeting in this capacity.

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

[101] This consideration is of limited relevance in the circumstances of this matter.

(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;

[102] Calvary is a large organisation. The present matter concerns its Hospitals in Launceston. However, it also operates other Hospitals in other parts of the country. It has a National Human Resources function and a National Administration. Mr Musgrave’s evidence indicates he contacted the National Office before confirming his decision to dismiss Ms Beamish. Given this structure and these resources Calvary is obviously well aware of the procedures to be followed in terminating employees.

(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;

[103] The conclusions in the paragraph above are again relevant in the context of this consideration.

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

[104] I have previously made reference to a number of matters I consider relevant in coming to a conclusion about whether a “valid reason” existed for Ms Beamish’s dismissal. I am not aware of any other matters that need to be considered at this point.

[105] In conclusion, having considered each of the matters in s.387 that the Commission is required to take into account I am satisfied in all the circumstances that Ms Beamish’s dismissal was at least harsh and unreasonable. In coming to this decision I have had particular regard for the conclusions reached in regard to “valid reason.” I am now required to consider what is an appropriate remedy in the context of the provisions contained in ss.390 and 392.

[106] Section 390 of the Fair Work Act 2009 (the 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.” 59

[107] Ms Beamish wants to be reinstated to her position of Coordinator of Clinical Services at Calvary in Launceston. She indicates in her evidence she believes she would be able to re-establish a professional working relationship with, in particular, Mr Musgrave, Ms Campbell and Mr Van Galen, although she acknowledges her relationship with Mr Musgrave might be “uncomfortable,” at least at the outset.

[108] She also makes reference to the evidence of Mr Hardy and Ms Dilger in support of the view that she would be welcomed back to the organisation by the overwhelming majority of employees. In this context there was some suggestion in the evidence provided by Calvary that some Visiting Medical Officers would not want Ms Beamish to return, however, this was not able to be substantiated in cross examination.

[109] Ms Beamish also relies on her employment record over a period of more than seven years, and her performance reviews during this period of time. She also points to her commitment to the organisation, and submits this was not challenged in any of the evidence in the proceedings.

[110] She also submits the circumstances involving the emails were a “one off,” involving only her and Ms Handley, and Ms Handley’s departure from the organisation further reinforces the fact it is most unlikely there will ever be any repetition of such behaviour. She is also not a regular member of the Executive Management Group, and only ever participated in those meetings when she was acting up in the position of Director of Clinical Services. She also submits there is no evidence to suggest her dealings with the members of the Executive team were inappropriate and unprofessional. She also submits any of the concerns she had about the Director of Mission were raised through the proper channels, including in direct discussions with Mr Musgrave.

[111] Ms Beamish also submits an order of reinstatement could be made without an accompanying order for back pay, or with only limited back pay being ordered. This submission is put primarily for two reasons. Firstly, Ms Beamish has been unfit for work for the majority of December, January and February due to some medical issues she was dealing with. She also acknowledges she has not sought to mitigate her losses by looking for work elsewhere, because of her medical condition, and because she only ever wants to be reinstated to her former position at Calvary.

[112] Calvary submits, in response, Ms Beamish’s failure to acknowledge any fault in her behaviour is a significant factor that works against her being reinstated. It also relies on the evidence of Mr Musgrave, who states her actions evidence a breakdown in the relationship between two senior employees within the organisation, which is an unacceptable situation. His evidence also indicates he believes he can no longer trust Ms Beamish to act appropriately, given what was revealed in the emails.

[113] It also submits Ms Beamish’s conduct went to the heart of the relationships that needs to exist between senior staff in the organisation, and precludes reinstatement from being a viable option.

[114] Previous decisions of the Tribunal have clearly acknowledged that trust and confidence is a necessary ingredient in any employment relationship, and where trust and confidence is lost reinstatement may be impractical. However, the same authorities have also held that the rationale for the loss of trust and confidence must be sound and rationally based.

[115] In Perkins v Grace Worldwide (Aust) Pty Ltd 60 the Full Court of the Industrial Relations Court of Australia came to the following conclusion:

“Trust and confidence is a necessary ingredient in any employment relationship… So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

…

Each case must be decided on its own merits … In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive.

…

It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer’s own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.” 61

[116] In addition, in the decision in Australian Meat Holdings Pty Ltd v McLaughlin 62 a Full Bench of the Commission found that:

“We accept that the question of whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate. It is one factor to be taken into account, but it is not necessary conclusive.” 63

[117] Having had regard to these authorities I am satisfied it is appropriate to order that Ms Beamish be reinstated. In coming to this conclusion I acknowledge the evidence of Mr Musgrave, and his concerns about the breakdown in trust between two senior members of the organisation. However, I am satisfied, in response, that Ms Beamish’s employment record over a long period, and the departure of Ms Handley from the organisation, combine to provide confidence there will never be any repetition of her actions, and Mr Musgrave can be confident of this for the same reasons.

[118] I am also satisfied Ms Beamish has demonstrated in the past that she acts in a professional way in her direct dealings with colleagues. There is no evidence to suggest she has ever acted in any other way, apart from on these occasions. She has apologised for her actions, which she describes as inappropriate and immature. It is also noted that previous Commission decisions have made clear that colleagues at work are not necessarily required to get on at a personal level, although I make this statement without necessarily concluding this situation exists in this case.

[119] I am also satisfied that the evidence makes clear Ms Beamish has been a valued and committed member of the team at Calvary, who will be welcomed back by the overwhelming majority of employees. For these reasons I am satisfied, in conclusion, it is appropriate for an Order of reinstatement to be made.

[120] Section 391(2) of the Act also provides that the Commission may order that the continuity of service be maintained. I consider that such an Order is appropriate in the circumstances of this matter.

[121] Section 391(3) also provides that the Commission can order the restoration of lost wages during the period of unemployment. I decline to make such an Order primarily because of the failure by Ms Beamish to mitigate her loss since her dismissal. However, at the same time I understand the reason why this is the case.

[122] An Order requiring that Ms Beamish be reinstated to her previous position within 14 days, on terms and conditions which are not less favourable than those which applied to her previously, will be issued. 64 As indicated, the Order will also provide for continuity of service.

COMMISSIONER

Appearances:

Mr Andrew Cameron of Andrew Cameron & Associates appeared on behalf of Ms Beamish.

Ms Samantha Masters of Page Seager appeared on behalf of Calvary.

Hearing details:

2016.

Launceston:

29 February and 1 March.

1 Fair Work Act 2009 (Cth), s.385

2 Ibid at s.387

3 Exhibit CHCT2 at attachment A, page 1

4 Ibid at Attachment C, page 3

5 Ibid at page 1-2

6 Outline of Submissions of the Applicant at para 58

7 Exhibit CB4 at para 35

8 Ibid at attachment CB-D, page 2

9 Ibid

10 Ibid at page 4

11 Above n.vi at para 39

12 Transcript at PN466

13 Ibid at PN789

14 Exhibit CB3 at para 7

15 Ibid at para 23

16 Ibid at para 36

17 Outline of Submissions of the Respondent at para 1

18 Ibid at para 8

19 Ibid at para (8)(a)(i)-(iv)

20 Ibid at para 13(b)

21 Ibid at para 8(b)

22 Ibid at para 8(c)

23 Ibid at para 20(f)

24 Ibid at para 21(a)(iv)

25 Ibid at para 25(d)

26 Ibid at para 52-53

27 Transcript at 1572

28 Exhibit CHCT2 at para 10

29 Ibid at para 12

30 Ibid at para 14

31 Ibid at para 33

32 Ibid at para 39

33 Transcript at PN1063

34 Ibid at PN1097

35 Ibid at PN1182

36 Ibid at PN1202

37 Ibid at PN1231

38 Ibid at PN1239

39 Ibid at PN1253

40 Ibid at PN1293

41 Exhibit CHCT1 at para 15

42 Ibid at para 34

43 [1995] HCA 24; (1995) 185 CLR 410 at 465

44 Ibid at [128]

45 (1998) Q9292

46 Ibid

47 (1995) 62 IR 371

48 Ibid at 373

49 [2011] FWAFB 1166

50 Ibid at [24]

51 [2013] FWCFB 6191

52 Ibid at [58]

53 Above n.xli at attachment F

54 Ibid at attachment I, page 8

55 Ibid at attachment A, cl. 4

56 Ibid at attachment L, page 2-3

57 Ibid

58 Ibid at attachment K, page 3

59 Fair Work Act 2009 (Cth) at s.390

60 [1997] IRCA 15 (7 February 1997)

61 Ibid

62 Print Q1625

63 Ibid at page 17

64 PR580812

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Christina Beamish v Calvary Health Care Tasmania Limited T/A Calvary Health Care Tasmania