Hallam v St Barbara Mines Ltd

[1997] IRCA 286

INDUSTRIAL RELATIONS COURT OF AUSTRALIA

INDUSTRIAL LAW - Alleged UNLAWFUL TERMINATION - whether VALID REASON - alleged MISCONDUCT - fighting - SUMMARY DISMISSAL - Alleged SEX DISCRIMINATION & SEXUAL HARASSMENT - whether damaged relationship of confidence and trust - whether employee was given opportunity to defend herself - whether BIAS.

Industrial Relations Act 1988 (now Workplace Relations Act 1996) - ss 170DC, 170DE, 170EA, 170EDA.

Carrigan v Darwin City Council (unreported, IRCA No. 101 of 1997, von Dousa J, 20 March 1997)
Kerr v Jaroma Pty Ltd t/as Treasury Motor Lodge (1996) 70 IR 469.
Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370.
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.
Victoria v The Commonwealth (1996) 66 IR 392.
Wadey v Y.W.C.A. Canberra (unreported, IRCA No. 542 of 1996, Moore J, 12 November 1996).
Westen v Union des Assurances de Paris (unreported, IRCA No. 660 of 1996, Madgwick J, 17 December 1996).
Woods v WM Car Services (Peterborough) Limited [1981] IRLR 347

OLIVIA HALLAM -v- ST BARBARA MINES LIMITED
WI 2519 OF 1995

JUDICIAL REGISTRAR:  R.D. FARRELL JR
PLACE:  PERTH (HEARD IN PERTH & MEEKATHARRA)
DATE:  29 OCTOBER 1997

LIMITED DISTRIBUTION

IN THE INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

  WI 2519 of 1995   

BETWEEN:            OLIVIA HALLAM
  APPLICANT

AND:  ST BARBARA MINES LIMITED
  RESPONDENT

JUDICIAL

REGISTRAR:

R.D. FARRELL, JR

DATE OF ORDER:

29 OCTOBER 1997

WHERE MADE:

PERTH (HEARD IN PERTH & MEEKATHARRA)

THE COURT ORDERS:

1.       The application is dismissed.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Industrial     Relations Court Rules.

LIMITED DISTRIBUTION

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY

WI 2519 of 1995

BETWEEN:             OLIVIA HALLAM
APPLICANT

AND:  ST BARBARA MINES LIMITED
RESPONDENT

JUDICIAL
REGISTRAR:         R.D. FARRELL, JR

DATE:  29 OCTOBER 1997

PLACE:                   PERTH (HEARD IN PERTH & MEEKATHARRA)

REASONS FOR DECISION

This is an application under Section 170EA of the then Industrial Relations Act 1988, now known as the Workplace Relations Act 1996 (“the Act”) for compensation arising from the alleged unlawful termination of the employment of the applicant, Olivia Hallam, (“Ms Hallam”), by the respondent, St Barbara Mines Limited (“the Company”). Reinstatement is not sought, and I am satisfied that it would be impracticable.

St Barbara Mines Limited runs the Bluebird gold mine near the town of Meekatharra in central Western Australia. By the time of her dismissal, Ms Hallam had been employed with the Company for over 10 months as a laboratory supervisor. It was her first full-time job; she was 23 years of age at the commencement of her employment, having recently qualified from university with a Bachelor of Science. She lived with about 250 other employees at the Company’s camp. Few of these employees were women.

The Incident at the Phonebox

The incident which resulted in Ms Hallam’s dismissal occurred on the evening of Wednesday, 22 November, 1995. My findings of fact concerning that incident follow. In making these findings, I have heard and considered the evidence of the four direct witnesses of the events, including statements prepared by some of them soon afterwards.

Ms Hallam had finished her day-shift at 6.00pm, and returned to her quarters. She was joined by Mr Jiri Michaelek, (“Mr Michaelek”), her boyfriend. Ms Hallam had met Mr Michaelek, who worked on “special projects” with the Company, at the camp in about May 1995 and they had since established a close relationship.

She left the quarters at about 8.00pm to make a phone call to a friend in Queensland with whom she hadn’t spoken for some time, leaving Mr Michaelek there to study for a work-related examination he had to sit the next day.

There were four public phone booths at the camp. Two were near the camp’s “mess” or bar, and the other two were further away around a corner. Ms Hallam used the phone booth near the mess, furthest from the corner.

Using a phonecard, Ms Hallam made a series of brief calls. She obtained her friend’s number, found her friend’s line engaged and then left a message for her mother. She then got through to her friend and found her upset, because she had broken up with her fiancee. Ms Hallam spoke to her friend for some time, seeking to console her.

Another employee, Mr Tony Carr, was waiting to make a telephone call. Mr Carr is a man of average height, several inches taller than Ms Hallam, with a powerful build and short cropped hair. He speaks with an English accent.

Ms Hallam heard Mr Carr clear his throat and saw him pointing to his watch, indicating that she had spoken for some time and that he was waiting to use the telephone. The nearby phonebox was occupied by Mr Warren Jennings, the camp’s paymaster. Ms Hallam explained briefly to Mr Carr that her friend was distressed and that they hadn’t spoken for twelve months.

A little later, Mr Carr pointed out that Ms Hallam had been on the phone for some time and asked her if she would allow him to make a brief call, after which she could call her friend back. Ms Hallam refused, becoming upset, and told him to leave her alone.

He persisted in asking her to let him use the phone. Ms Hallam pointed out that there were other phones available around the corner and suggested that he check them. She felt his refusal to check the other phones was unreasonable, and that he had become determined to prove a point by making her get off the phone. She felt intimidated by Mr Carr. She had never met him before; it was his second day on site. It was dark, and Mr Carr appeared to Ms Hallam to look menacing or, as she puts it, like a “skinhead”.

Ms Hallam protested to Mr Carr that he was only picking on her because she was a woman, and that it would not be happening if she were a six foot tall driller. She concedes she swore at him in the course of their exchanges. She does not allege that he raised his voice or swore at her. I accept that he spoke to her calmly and evenly. Even so, she found his persistence unreasonable and threatening. Eventually, Ms Hallam told her friend she would have to end the call, and would ring her tomorrow. She hung up, walking quickly out of the phonebox towards her quarters. She had been using the phone for about 45 minutes.

On the way to her quarters, she saw that one of the phoneboxes around the corner had indeed been vacant. As she walked, she became increasingly upset, and began running.

By the time she reached her quarters she was extremely upset. She was shaking and crying uncontrollably; she described her condition as “hysterical”. Mr Michaelek was disturbed at the state she was in. She was wheezing and breathing with difficulty; she had an asthmatic condition. He tried to find out what was wrong, but she did not respond coherently, referring only to “a man at the phone box”. She said in evidence she was feeling that what had happened was not fair, and that she had no rights and no recourse. She says she knew that if she complained to the Company nothing would be done about it. Mr Michaelek embraced her to try and console her, but she broke free and started to run away from the quarters. Mr Michaelek, who was barefoot and bare-chested at the time, grabbed a shirt and then pursued her, inhibited as he was by his lack of footwear.

Ms Hallam ran back to the phone boxes. As she approached Mr Carr, she saw him sitting on a seat in the phonebox, talking on the phone and laughing. She says she had intended to complain to him - to “tell him off” - but when she saw him laughing on the phone, she concluded that their earlier altercation hadn’t affected him at all, and realised there was no point yelling at him. She picked up a rock of some description and threw it at the phonebox, but it missed. She picked up another rock, and threw it at Mr Carr from about two metres away as she ran past the phonebox. Mr Carr had seen the first rock fly by the phone box and so saw the second rock coming. He raised his right arm to protect himself and was struck by the rock on that arm, just above his elbow, which was raised to about shoulder height. I am satisfied that the “rock” in question was about the size of a tennis ball, and was in fact a piece of coarsely fabricated cement. It caused a bruise about the size of a twenty cent piece on Mr Carr’s arm.

Mr Michaelek witnessed the throwing of the second rock, and continued to pursue Ms Hallam. He eventually found her back in her quarters. She was still highly agitated and incoherent, crying uncontrollably. He had to hold her for some time before she was able to give him an account of what had happened. He went back to the phone booth to confront Mr Carr, but by then Mr Carr had gone.

Ms Hallam remained agitated late into the night. She decided that she had had enough and would leave the camp. She packed up her room. Mr Michaelek managed to talk her out of making any rash decisions.

The Immediate Aftermath

During lunch the next day, Thursday, 23 November 1995, Mr Carr approached Mr Michaelek in the mess, introduced himself as the new maintenance superintendent and asked to speak with Mr Michaelek. They discussed the incident, and Mr Michaelek asked why Mr Carr had been “hassling” Ms Hallam. He complained that Mr Carr had frightened Ms Hallam, and observed that given his size, Mr Carr would “scare anyone”.

Mr Carr told Mr Michaelek that he wanted to speak to Ms Hallam that day, and that he wanted Ms Hallam to apologise. Mr Michaelek says he was not convinced that any apology was due, and in any event did not believe Ms Hallam was emotionally ready to meet with Mr Carr. He recalls telling Mr Carr that he would get back to him. Mr Carr thought that he had made it clear that if he got an apology that day he would not file a complaint. However, Mr Michaelek had the impression that Mr Carr had already reported the incident. Mr Michaelek thought Mr Carr seemed “all right” during their discussion.

Mr Michaelek saw Ms Hallam soon after. She did not want to go into the mess, in case she saw Mr Carr, so Mr Michaelek got her lunch for her.

The Complaint and its Investigation

A further two days later, on Saturday, 25 November 1995, Mr Carr told Mr Mepham (the Company’s Safety, Security and Training Officer who effectively acted as on site personnel manager), that he wished to lay a complaint about the incident. Mr Mepham has previously been a police officer and has experience of investigatory procedures. Mr Mepham asked Mr Carr and Mr Jennings to prepare statements setting out what had occurred. He received the statements on Monday, 27 November 1995.

Upon receiving the statements, Mr Mepham contacted the Company’s Perth office and got advice from Mr Lincoln Padbury, the Company’s Human Resources Manager. Mr Padbury instructed Mr Mepham to interview Ms Hallam about the incident. They were conscious of the Company’s policy that fighting at the workplace or at the camp was reason for dismissal, but Mr Padbury noted that the Company had to look at every case on its merits. Mr Padbury reviewed Mr Carr’s and Mr Jenning’s statements concerning the incident. It was left on the basis that if Ms Hallam raised any new facts concerning her behaviour or any reasonable explanation then Mr Mepham would note those matters and adjourn the interview. If she admitted the claims concerning her conduct, then he could proceed to dismiss her.

Mr Mepham conducted the interview with Ms Hallam in the Boardroom at 6.30pm on Wednesday, 29 November 1995, having called Ms Hallam over from the laboratory at the beginning of that night’s shift. Jean Sattin, the Regional Manager’s secretary, took notes, and later prepared a summary of the interview. Mr Graham Caplan, Ms Hallam’s superior in the laboratory with whom she had a good personal relationship, was present at her request.

Mr Mepham explained that he’d received a complaint from Mr Carr, and was investigating the complaint. He read the statements he had received from Mr Carr and Mr Jennings about the incident, and asked Ms Hallam for an explanation.

Ms Hallam gave her account of what had happened between her and Mr Carr while she was on the phone. Her account was essentially consistent with my findings concerning the facts of the incident, except that she described Mr Carr as “...getting fairly agitated”, alleging that he “yelled at her” and that he used “a threatening tone”. She also claimed she was using a $20 phone card and used $8 on the call to Queensland at peak rates. She agreed that after leaving the area, she got angry, went back to the phonebox, picked up a rock and threw it at Mr Carr.

According to the summary of interview:

“Olivia said she was not attempting to excuse anything she’d done and admitted she was wrong. She said she couldn’t go to the phone at night because of guys threatening her. She said they had made accusations about her ‘with no recourse whatsoever’ and she said it was hard enough being a woman living in this situation ‘without having some man threatening and intimidating me’”.

Mr Mepham advised Ms Hallam that the incident constituted gross misconduct and that she was dismissed. He told her she would be paid any monies owing to her and would be required to vacate the Camp on the following day.

On being advised of her dismissal, Ms Hallam became upset, left the room and drove back to the camp. When it became apparent to the others that she was not returning, the interview concluded.

Ms Hallam left the camp the next day, and filed this application within nine days of the interview.

The Applicant’s Submission

The Company contends that Ms Hallam was dismissed for a valid reason connected with her conduct, given that the camp had a policy that “fighting... is reason for instant dismissal”.

The Company led evidence that it was standard practice to give a one page copy of the camp rules to employees during their camp induction. Those rules include the policy on fighting. Ms Hallam says she does not recall receiving the camp rules, but does not dispute that she may have received them. A fight involving two workers at the laboratory resulted in the ending of their employment, and Ms Hallam acknowledges that she was aware following that incident that fighting could lead to dismissal.

She contends that the policy was not consistently applied, but there was insufficient evidence before me upon which to reach that conclusion.

In the course of hearing the matter, the Court heard evidence from eighteen witnesses over seven days, sitting in both Perth and Meekatharra. The length of the hearing resulted from the nature of Ms Hallam’s case, which was essentially that the Court should not focus on the telephone booth incident, but rather that it should look beyond that incident to the broader picture, taking into account the circumstances preceding Ms Hallam’s conduct on that night, as well as alleged flaws in the Company’s response to the incident.

Specifically, Ms Hallam contends that:

·   she was subject to sexual discrimination and sexual harassment prior to the incident;

·   the Company’s response to her complaints about this harassment was inadequate;

·   as a result, there was a deterioration in Ms Hallam’s psychological well-being; and

·   her conduct during the incident was linked directly to that sexual harassment and to the inadequacy of the Company’s response.

She also relies upon other aspects of her employment situation which were sources of stress.

The Company disputes that these matters should affect the Court’s decision as to whether there has been a breach of Section 170DE of the Act. Nevertheless, it led extensive evidence disputing the applicant’s various allegations, together with additional evidence about other incidents involving Ms Hallam, which it says tend to support to the Company’s decision to dismiss her. Ms Hallam then sought to rebut that evidence.

At the time of the hearing, the applicant conceded that there was a valid reason for dismissal. She had admitted in the course of the interview that what she did was wrong.

However, the application was heard before the High Court struck down Section 170DE(2) of the Act as constitutionally invalid: Victoria v The Commonwealth (1996) 66 IR 392.

In these circumstances, parties have sometimes been granted the opportunity to withdraw a concession that the dismissal was valid and reargue their cases, given that the alternative test of whether the dismissal was harsh, unjust and unreasonable is no longer available: eg Westen v Union des Assurances de Paris (unreported, IRCA No. 660 of 1996, Madgwick J, 17 December 1996)

It is therefore appropriate, notwithstanding Ms Hallam’s concession, that I consider whether there was a valid reason for Ms Hallam’s termination, especially in the light of recent decisions concerning the scope of Section 170DE(1).

Ms Hallam also contends that she was not given a proper opportunity to defend herself against the allegation because Mr Mepham, who conducted the investigation, was biased against her, so that she did not feel able to raise at the interview all the matters relevant to her actions, and because of which he did not give proper weight to the matters she did raise by way of explanation.

Whether There was a Valid Reason for Termination

Section 170EDA(1)(a) confers the onus on the employer to prove that there was a valid reason for the termination of the employee’s employment connected with Ms Hallam’s conduct for the purposes of Section 170DE(1).

I am satisfied, having considered all the evidence in this matter, that the Company has met that onus.

In Wadey v Y.W.C.A. Canberra (unreported, IRCA No. 542 of 1996, Moore J, 12 November 1996), Moore J held that:

“It is not for this Court to approach the matter as if it is to make a decision whether termination should occur or not. A range of rational and reasonable views may exist as to whether particular conduct warrants termination. If the view adopted by or on behalf of the employer is rational and reasonable then, in my opinion, the employer has established a valid reason for the purposes of section 170DE(1). In putting it this way, I am not attempting to depart from the views expressed by Northrop J in Selvachandran v Peteron Plastics Pty Ltd... which have been referred to with approval on a number of occasions since...”

It is now clear that the term “valid reason” embraces concepts of fairness: eg Nettlefold v Kym Smoker Pty Ltd(1996) 69 IR 370, Kerr v Jaroma Pty Ltd (1996) 70 IR 46. However, as Northrop J put it in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371:

“The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly...”

In finding that the Company had a valid reason for the dismissal, I have had regard to the evidence of the events prior to the telephone booth incident.

I accept that the improper conduct of an employer could, in some circumstances, have the effect of rendering invalid a reason for dismissal which would otherwise be valid. For example, the dismissal of an employee for striking their employer may not be for a valid reason if the employer provoked the employee by striking them first.

Similarly, Ms Hallam contends that her wrongful conduct towards Mr Carr was the direct result of the prior wrongful conduct of the Company towards her.

I accept that Ms Hallam’s experience working with the Company was, for a combination of reasons, a time of significant stress and, indeed, distress for her. The circumstances of her departure caused her further distress. The expert evidence of Ms Valerie Coventry, a registered psychologist, confirmed that this was the case. This finding was also supported by Ms Hallam’s demeanour in the course of her evidence and, possibly even more effectively, by the distress Mr Michaelek clearly felt when giving evidence about Ms Hallam’s state of mind at times during her employment.

I heard evidence about the general circumstances of life and work with the Company at the mine which contributed to the stress experienced by Ms Hallam. These include the remoteness of camp life, the gender imbalance among its employees and the long hours of shift work worked at the laboratory. In addition, there were the anxieties arising from the supervisory nature of her position, for which she felt ill-equipped and for which she says she was denied training, despite her requests.

In addition, there were particular incidents and difficulties which Ms Hallam characterises as sexual harassment or sexual discrimination. I will deal with these in turn.

Ms Hallam began her employment with the Company at the beginning of 1995. Within a couple of months, she was having relayed to her by fellow employees statements attributed to Mr Fred Ehrlich, the Camp Manager, to the effect that she was engaging in inappropriate sexual activity. She was told he was describing her as a “slut” and was accusing her of “whoring around”.

Mr Ehrlich was not called to give evidence, but numerous of the company’s employees confirmed that these general rumours, and specific accounts of alleged activity on Ms Hallam’s part, gained currency around the camp. I am satisfied on the evidence that Mr Ehrlich gave these allegations currency, and that it had a marked effect on Ms Hallam’s reputation within the camp, and consequently upon her self-esteem. I might note at this point that the Company did not lead evidence to suggest that there was any foundation for these rumours.

Ms Hallam also raised what she considered to be inappropriate behaviour on the part of Mr Mepham. She alleges that, in response to Mr Ehrlich’s comments about Ms Hallam’s alleged conduct, Mr Mepham imposed a curfew upon her, as a condition of her retaining her employment. She says he told her:

“‘If you want to keep your job you’re going to have to not go into town to the pub.  You’re going to have to not visit anyone - any males - after about 8.00, 8.30.’  He said, ‘I don’t’ - he said, ‘Don’t go into any males rooms with the door closed.’  I said, ‘Well, what about the guys?  Just because they have got the door closed doesn’t mean they’re having affairs with each other.’  You know, ‘How come they’re putting pressure on me?’  And he said, ‘Look, that’s just the way women - the way the situation is up here - that you’re just going to have to put up with it, or you have to leave,’ and I was really annoyed.  I was really devastated actually and, yes, he just, sort of, told me about the curfew.”

Mr Mepham agrees that he spoke to Ms Hallam when he became aware of Mr Ehrlich’s comments. He says he was concerned about her well-being and advised her that she had to be careful about her activities, especially at night when she was dressed in her night clothes. He says he was partly concerned about her safety because it was his belief at the time that there was an unidentified “deviant” in the camp. I accept that he was probably primarily concerned about her reputation and was effectively advising her to give Mr Ehrlich minimal excuses to make further comments of the sort he had been making. While this is clearly a difficult area, it seems to me not necessarily inappropriate to give advice as to how one might practically or prudently respond in such a situation to such attacks, however unfair those attacks might be. What may be acceptable as advice may be unacceptable as an instruction.

Mr Mepham says he expressly denied that this meant Ms Hallam was curfewed when she characterised their conversation in that way to him. I accept that this is the case. Nevertheless, Ms Hallam chose to regard the matter in that way, and relayed the existence of such a curfew as fact to Mr Michaelek.

In preferring Mr Mepham’s account of this conversation to that of Ms Hallam, I have taken into account, in addition to the demeanour of the parties, what I consider to be a tendency on the part of Ms Hallam to exaggerate and dramatise events which left her feeling distressed and aggrieved.

A convenient example is her assertion during the termination interview that Mr Carr had yelled at her and used a threatening tone. It would also appear from Ms Coventry’s evidence that Ms Hallam told her psychologist that Mr Carr had been “abusive”. During the hearing, having heard the evidence of Mr Carr and of Mr Jennings, who was an impressive and disinterested witness, she did not repeat these assertions. It may be that Ms Hallam on occasions genuinely feels more distressed or more aggrieved as a result of an incident than another person might in the same circumstances. One can see the temptation to try and make such an apparently disproportionate reaction explicable by seeking to exaggerate the nature of the incident.

Ms Hallam also contends that Mr Mepham told her graphic stories deriving from his past experiences as a police officer, some of which included explicit sexual elements. Mr Mepham conceded that he would sometimes tell such stories. While he says he would only do so on request, I am prepared to accept that he might take little in the way of prompting. On balance, I accept his evidence that he did not intend to cause discomfort through telling these stories, and that he believed they were welcomed.

I also accept that Ms Hallam had difficulties in dealing with those stories that contained a sexual element. This is understandable given the defensiveness and insecurity which would have resulted by then from Mr Ehrlich’s attacks on her reputation. Whatever her reaction may have been previously, one can see that it might distress her to be required to react to stories with a sexual content when her own alleged sexual behaviour was a matter of general discussion.

However, on the evidence before me, I find that Ms Hallam’s distress at such stories was not effectively communicated to Mr Mepham. She decided to avoid him. He was conscious that their relationship deteriorated at a certain point, but attributed that deterioration to an unrelated action on his part, connected with the removal from the camp of Ms Hallam’s sister.

Finally, Ms Hallam contends that the Company’s response to Mr Ehrlich’s conduct in attacking her reputation was inadequate. I accept that that was the case.

Ms Hallam took the matter seriously and was justified in doing so, particularly given the small community in which she was required to live. She went so far as to approach the Meekatharra police force for recourse, albeit unsuccessfully. This became known to Mr Ross Atkins, the then Regional Manager of the Company. His reaction was to be resentful, rather than to recognise the seriousness with which Ms Hallam regarded the matter.

The lower levels of management who were approached by Ms Hallam about the matter reacted in an ineffectual manner; her complaint was effectively placed in the “too hard basket”. Her request for an apology was ignored and the Company’s response appeared to be directed toward trying to prevent any further comments from Mr Ehrlich, rather than addressing the damage that had already been done. Even that strategy was unsuccessful, so that Mr Ehrlich felt free to reprise his views as to Ms Hallam’s sexual conduct in an angry outburst to her face in a public forum in the context of a dispute about another matter some months after Ms Hallam’s first complaint about his conduct.

Ms Hallam sought a meeting through the proper channels with Mr Atkins. The managers she approached delayed in arranging such a meeting. I accept that Mr Atkins was probably responsible for the delay. One of the managers, Mr Graham Caplan, described Mr Atkins as having “sided with Mr Ehrlich”. Certainly, Mr Atkins evidence left me with that impression. He appeared to regard the substance of the rumours about Ms Hallam’s behaviour as fact, not due to any direct evidence but rather because numerous people have told him that it was the case. It is of course the nature of rumours, especially of a salacious type, that they come to the ears of numerous people.  

While there was a dispute in the evidence between Ms Hallam and Mr Atkins’ secretary, I accept that Ms Hallam made an attempt to directly arrange to meet Mr Atkins, having given up on the proper channels, but came to the view that Mr Atkins was avoiding such a meeting.

Ms Hallam eventually succeeded in discussing the issue with Mr Atkins. She found him in his office having sought to see him about the Company’s failure to employ her sister. Her account of the relevant part of their discussion follows:

“I went to Ross and I said, ‘Has [the Company’s failure to employ her sister] got anything to do with me?’  And he said, ‘Yes’.  He said, ‘Well, apparently you tried to take a restraining order out on Fred [Ehrlich] and I don’t want any of that business’.  He said, ‘Your sister might be like you and I don’t want any of that - any of those goings on going on in my camp’.  He said, ‘I’ve got a duty to protect Fred’, and I said, ‘What about your duty to protect me?’  And he said:  well, you know, Fred’s a manager, sort of thing.  He said, ‘No, I’m not going to employ you because you took out a restraining order’.  And I said, ‘I didn’t take out a restraining order at all.  I didn’t even inquire about a restraining order.’  I said, ‘I was having so much problems with what was being said, I needed some advice, I had nowhere to go.  And I tried to organise a meeting with you to no avail.’  And he just said:  he didn’t believe that I didn’t take out a restraining order.  I said, ‘Look, if you like you can go to the police station and ask them if I even asked about a restraining order’.  And he said, ‘Look’, he said, ‘We’ll just see how things go and - yeah, but at the moment it’s because of you that your sister didn’t get a job’".

While there was some dispute between Ms Hallam and Mr Atkins as to the number and timing of their meetings, they both had a recollection of one important meeting between them. Examining Mr Atkins’ evidence as a whole, I find it more probable than not that the substance of their conversation was consistent with Ms Hallam’s account.

Ms Hallam submitted that Mr Ehrlich’s conduct, and the Company’s inadequate response to it, amounted to a breach by the Company of  an implied term of the employment contract that the employer would not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee.

In Carrigan v Darwin City Council (unreported, IRCA No. 101 of 1997, von Dousa J, 20 March 1997), a recent decision of the Industrial Relations Court of Australia, von Dousa J cited and expressly applied the following principles articulated by Brown-Wilson J in Woods v WM Car Services (Peterborough) Limited [1981] IRLR 347 at paragraph 17, which were upheld by the English Court of Appeal ([1982] IRC 693):

“In our view it is clearly established that there is implied in a contract of employment a term that the employers will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee... To constitute a breach of this implied term, it is not necessary to show that the employer intended any repudiation of the contract: the Tribunal’s function is to look at the employer’s conduct as a whole and determine whether it is such that it’s effect, judged reasonable and sensibly, is such that the employee cannot be expected to put up with it... The conduct of the parties has to be looked at as a whole and its cumulative impact assessed...”

This may be so. There are parallels between the frustration experienced by Ms Hallam in her attempts to seek redress for Mr Ehrlich’s behaviour and the frustration experienced by Ms Carrigan, whose employer resisted and inadequately responded to her efforts to obtain employment appropriate for her rehabilitation.

The difficulty is the inappropriateness of Ms Hallam’s response to such a breach. Ms Carrigan chose to leave the employment. Indeed, the context in which the employer’s duty not to conduct themselves in a manner likely to damage the relationship of confidence and trust between employer and employee arises is usually that of a claim of constructive dismissal. Had Ms Hallam felt compelled to leave her employment following her meeting with Mr Atkins, it may well be that she could have mounted a claim for unlawful termination. That may have been an appropriate response, in the circumstances. She may in those circumstances have succeeded in a claim for unlawful termination.

That is not, however, what happened. Instead, Ms Hallam remained in employment and, some time later, assaulted a fellow employee. Clearly that is not a response that is properly open to her to any contractual breach on the part of her employer. It was not something she was entitled to do.

Nor in my view, in the circumstances of this case, was it something that she should be excused for doing. On the evidence before me I find that her conduct during the telephone incident was not directly caused by the behaviour of Mr Ehrlich and the Company’s response to it.

It is significant at this point to have regard to the evidence of Ms Coventry, who was the psychologist called by Ms Hallam to give evidence. While recounting and supporting Ms Hallam’s accounts of the causes and motivations of her conduct during the telephone booth incident, she also observed that Ms Hallam was “emotionally immature”, that she exhibited “very inappropriate ways of managing her anger”, and that she “tends to act first and think afterwards”.

While the behaviour of Mr Ehrlich and the Company’s response to it may have contributed to her state of mind at that time, many other matters may have also contributed. Substantial time had elapsed. They were not, in my view, sufficiently proximate.

Ms Hallam’s conduct in breach of the Company’s policy against fighting at the camp was, in my view, a valid reason for the termination of her employment. The Company may well have taken the view that the rigorous enforcement of such a policy might be all the more necessary given the stresses and strains faced by employees as a result of the difficult nature of their work and living conditions, to ensure that they are not faced by the additional hazards of exposure to violence from their fellow employees.

While I find that the Company’s conduct in connection with the behaviour of Mr Ehrlich was undesirable, and may indeed have amounted to a breach of its statutory and contractual obligations, it does not in my view render invalid what would otherwise be a valid reason for the dismissal.

Whether Ms Hallam Was Given an Opportunity to Defend Herself

Section 170DC of the Act requires that an employee must be given the opportunity to defend themselves against allegations relating to their conduct.

The allegations concerning her conduct during the telephone booth incident were put to Ms Hallam in the course of her interview with Mr Mepham, and essentially she did not contradict them. She raised the concerns she had about issues of sexual discrimination, albeit obliquely. Mr Padbury concedes that it would have been desirable, if such matters were raised, to have adjourned the interview to permit further investigation rather than to proceed on to the dismissal. In the event, Mr Mepham took the view that those matters were unrelated to the questions he had to determine. While there is clearly some relationship between them, I have found that they were insufficiently related.

Ms Hallam suggests that it was inappropriate that Mr Mepham conducted the interviews, given what she alleges about his previous conduct and the breakdown in their working relationship.

My findings of fact as to the nature of Mr Mepham’s prior conduct are obviously relevant. However, it should also be noted that Ms Hallam does not allege that she at any stage complained to the Company about Mr Mepham’s conduct. Nor did she ask that he not conduct the interview. While Mr Mepham recognised that his working relationship with Ms Hallam had deteriorated in recent times, there was no indication from her of the reason for that deterioration.

It would be unrealistic to expect the representative of an employer to disqualify themselves from presiding at such interviews because they were not on good terms with the employee in question. Ms Hallam did not raise any particular reason at the time for Mr Mepham to not deal with the matter.

I find on balance that the Company did not breach Section 170DC of the Act. In any event, I consider it very unlikely that further investigation of Ms Hallam’s allegations of sexual discrimination or the conduct of the termination interview by a manager other than Mr Mepham would have affected the Company’s decision.

Conclusion

Accordingly, I will order that the application be dismissed.

I certify that this and the preceding twenty one (21) pages
are a true copy of the reasons for decision of
Judicial Registrar R.D. Farrell.

Associate:

Date:                  29 October 1997

APPEARANCES

Representative for the Applicant:     Mr M. Kane

The Association of Professional Engineers,

Scientists and Managers, Australia.

Counsel for the Respondent:  Ms S. O’Brien

Solicitors for the Respondent:           Talbot & Olivier

Dates of Hearing:   8, 15, 16, 17, 18, 22 & 23 July 1996

Final Submissions:  16 August 1996

Date of Judgment:  29 October 1997