Heather Bilson v Mission Australia
[2010] FWA 6297
•31 AUGUST 2010
[2010] FWA 6297 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Heather Bilson
v
Mission Australia
(U2010/5506)
COMMISSIONER RYAN | MELBOURNE, 31 AUGUST 2010 |
Application for unfair dismissal remedy.
DECISION SUMMARY
[1] I find that the termination of Mrs Bilson’s employment by Mission Australia was an unfair dismissal.
[2] I find that reinstatement is not appropriate and that compensation should be paid.
The appropriate amount of compensation is $18,225.00
DECISION
Preliminary
[3] Section 396 of the Act sets out four matters which must be decided in applications of this kind before the merits are considered. These matters are:
“(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[4] I will deal with each of the matters in turn.
Section 396(a)
[5] The application was made on 25 January 2010 and Mrs Bilson had been dismissed on 13 January 2010. Therefore, I find that the application was made within the period required in subsection 394(2), namely, within 14 days after the dismissal took effect.
Section 396(b)
[6] The terms of the Labour Market Assistance Industry Award 2010 [MA000099] applied to Mrs Bilson in relation to her employment with Mission Australia. Therefore, I find that the applicant was protected from unfair dismissal within the meaning of s.382 of the Act.
Section 396(c)
[7] This section has no relevance in these matters as the Small Business Fair Dismissal Code is not applicable to Mission Australia.
Section 396(d)
[8] This section has no relevance in these matters as it is agreed by both parties that the termination of employment of Mrs Bilson was not a redundancy situation.
Unfair Dismissal
[9] Section 385 of the Act provides that a person has been unfairly dismissed if Fair Work Australia (FWA) is satisfied that:
“(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[10] Section 385(a) and (d) have been met and s.385(c) have no relevance in these matters.
Section 387
[11] In order to declare whether or not the termination of the applicant’s employment was harsh, unjust or unreasonable, FWA is required to take into account the factors set out in s.387 of the Act. Those factors are as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
[12] I will deal with each of these in turn.
Valid reason – s.387(a)
[13] Mrs Bilson was dismissed from her employment on the grounds that allegations of serious misconduct made against her were proven true. The allegations include an allegation of intimidation of Ms Binder by reason of sitting next to Ms Binder. This allegation was unfounded and untrue. The allegation made by Ms Binder against Mrs Bilson arose out of the actions of Mission Australia acting through Mr McCauley in directing Mrs Bilson to sit next to Ms Binder whilst at the same time not telling Ms Binder that the change in seating arrangements was at the direction of Mr McCauley. The allegations also included allegations of transferring job seekers to Ms Binder in contravention of either or both directions not to do so or agreement not to do so. I find for the reasons set out below that Mission Australia did not give explicit or clear directions to Mrs Bilson not to transfer jobseekers to Ms Binder. I also find for the reasons set out below that Mission Australia did not investigate the allegations properly nor give proper consideration to all of the circumstances relating to the treatment of and consequent conduct of Mrs Bilson on 21st and 22nd December 2009 or to the correction by no later than the morning of the 23rd December 2009 of the ‘double’ and ‘triple’ bookings given to Ms Binder. To the extent that Mission Australia relied upon the First and Final Warning given to Mrs Bilson on the 14 December 2009 that reliance was unsound and misplaced given the failure of Mr Cocker to properly investigate the issues which led him to issue the warning.
[14] Therefore, I find that there was not a valid reason for the dismissal of Mrs Bilson relating to her conduct.
Notification – s.387(b)
[15] Mrs Bilson was notified in writing on the 12th January 201 of the allegations made against her. However it is clear that at least one of the allegations lacked detail. The allegation “that you have intimidated Jann Binder and made the workplace uncomfortable and unpleasant for her” is a direct reference to Ms Binder’s written complaint to Mr Moore on the 23rd December concerning Mrs Bilson moving herself to sit next to Ms Binder. On being terminated on 13 January 2010, Mrs Bilson was notified in writing of the reasons for her dismissal. I find that Mrs Bilson was notified of the reason for her dismissal.
Opportunity to respond – s.387(c)
[16] From the evidence it is clear that Mrs Bilson was given the opportunity at the meeting held at Ringwood on 13th January 2010 to respond to the allegations made against her on 12 January 2010. However as discussed in relation to s.387(f) it appears that the process of giving Mrs Bilson an opportunity to respond to the allegations may have been no more than Mission Australia ensuring notional compliance with the need to provide Mrs Bilson with an opportunity to respond.
[17] However I am satisfied that Mrs Bilson was given an opportunity to respond to the reason for her dismissal.
Support person – s.387(d)
[18] Mrs Bilson acknowledged that she was given the opportunity to have a support person at the meeting on 13 January 2010 but that she chose not to have one.
Warnings regarding performance – s.387(e)
[19] As the termination of the applicant’s employment was not related to unsatisfactory performance, this factor is not relevant.
Size of the employer’s enterprise – s.387(f)
[20] Mission Australia is a large national organisation with a detailed set of policies and procedures relating to human resource issues including management/employee and employee/employee relations. The very size of Mission Australia did impact on the procedures followed in effecting the dismissal. Both the warning and dismissal were based upon alleged non compliance by Mrs Bilson with one or more than one of Mission Australia’s policies and procedures and the giving of the warning and the dismissal of Mrs Bilson was asserted to have been done in compliance with the policies and procedures of Mission Australia. The evidence suggests that the management of Mission Australia used the policies to ensure that their actions had the appearance of procedural fairness. Mrs Bilson noted that on returning to work on the 12 January 2010 her workstation was clear with her laptop gone and whilst Mission Australia’s management had a 1 hour break after the meeting on the 13th January to “consider” Mrs Bilson’s responses, it was submitted by Mrs Bilson that the decision to dismiss her had effectively been made before that time. This submission is strengthened by the fact that Mission Australia relied only on the record of the meeting on 13 January 2010 to establish that they had reason to be satisfied that the allegations were proven true.
Human resource expertise – s.387(g)
[21] It is apparent from the evidence of Mission Australia that their Human Resources Unit was fully involved in both the giving of a First and Final Warning to Mrs Bilson and in the dismissal of Mrs Bilson.
Other matters – s.387(h)
[22] Fair Work Australia must take into account any other matters that Fair Work Australia considers relevant. In the circumstances of this matter and for the reasons set out below I consider that the overall context in which the dismissal has occurred as well as the separate conduct of each of the persons involved in the dismissal of Mrs Bilson is a relevant factor which I have taken into account.
Harsh, unjust or unreasonable
[23] In all of the circumstances and, having taken account of each of the factors set out in s.387, I have reached the conclusion that the termination of Mrs Bilson’s employment was harsh, unjust and unreasonable. .
REMEDY
[24] The relevant statutory provisions governing any remedy that may be ordered by the Tribunal for unfair dismissal are set out in Division 4 of Chapter 3, Part 3–2 of the Act. When the Tribunal may order a remedy is set out in s.390 of the Act which is as follows:
“390 When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA 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) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.”
[25] I turn first to deal with the requirements of s.390(1).
[26] On the basis of the findings in paragraphs 6 and 106 I am satisfied that the requirements of s.390(1)(a) and (b) have been met. As Mrs Bilson has made an application under s.394 of the Act, I am satisfied that the requirements of s.390(2) have been met.
[27] Section 390(3) provides that FWA must not order payment of compensation unless FWA is satisfied that reinstatement is inappropriate and that compensation is appropriate in all of the circumstances.
[28] Having considered carefully all aspects of these matters, on balance, I am satisfied that reinstatement of the applicant is inappropriate and that compensation is the appropriate remedy. The conduct of Mr Cocker in failing to properly investigate the incident on 26 November and in issuing a First and Final Warning to Mrs Bilson in circumstances which, in my view, clearly did not warrant a First and Final Warning, and, the conduct of Ms Vassallo, Mr Cocker, Mr McCauley and Mr Moore in dealing with the allegations made by Ms Binder on 22nd December to Ms Vassallo and on 23rd December to Mr Moore and in terminating the employment of Mrs Bilson, have effectively destroyed the possibility of re-establishing a positive relationship between Mission Australia and Mrs Bilson
Section 392
[29] Section 392 sets the parameters for making an order that compensation be paid.
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWA considers relevant.
Misconduct reduces amount
(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. Disregarded
(4) The amount ordered by FWA to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by FWA to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
[30] In compliance with s.392(1) the order to be issued in this matter will be that Mission Australia pay compensation to Mrs Bilson.
[31] Section 392(2) sets the criteria that must be taken into account in determining the amount of compensation to be ordered. I will deal with each criteria in turn.
Effect of the Order on the viability of Mission Australia - 392(2)(a)
[32] Mission Australia is a large national enterprise and any order for compensation to be paid to Mrs Bilson will not adversely affect the viability of Mission Australia’s enterprise.
Length of Mrs Bilson’s service - 392(2)(b)
[33] Mrs Bilson was employed for a period only just in excess of 6 months. However, Mrs Bilson was an experienced worker in her field and was specifically recruited into a senior role within Mission Australia. The short length of Mrs Bilson’s service should not in my view lead to any reduction in the amount of compensation which I would otherwise order in this matter.
Remuneration Mrs Bilson would have received if not dismissed - 392(2)(c)
[34] Mrs Bilson was on a remuneration package of $72,900.00 per annum. The contract of employment of Mrs Bilson referred to Mrs Bilson’s participation in the “Mission Australia’s Incentive Scheme”. Submissions were made by Mrs Bilson that I should take this into account in calculating any compensation. The contract of employment makes it clear that any payment under the “Mission Australia’s Incentive Scheme” is made at Mission Australia’s sole discretion. Evidence was given in this matter that the “Mission Australia’s Incentive Scheme” was never introduced. In calculating the remuneration that Mrs Bilson would have received, or would have been likely to receive, if not dismissed I include only the rate of remuneration specified in the contract of employment. I am of the view that had Mrs Bilson not been dismissed then her employment would have continued indefinitely, but in any event for a period greater than 6 months. But for the dismissal Mrs Bilson would have continued to be employed as a JSSM on a salary of not less than $72,900.00.
Efforts to Mitigate Loss - 392(2)(d)
[35] Mrs Bilson gave evidence at PN301 and PN302 that her dismissal from employment had had an adverse impact on her health and that in consequence she had not been actively seeking employment in the market place but rather had limited her job seeking to making contact with persons she knew in her field of work. Mrs Bilson had not found any work between the time of the dismissal and the conclusion of the hearing. Mrs Bilson has made an effort, albeit a very limited effort, to mitigate the loss suffered by the dismissal. There is a connection between the factors which Mrs Bilson raises to explain her limited efforts to mitigate her losses and the factors which must be excluded from any compensation by operation of s.392(4). To the extent that shock, distress or humiliation, or other analogous hurt, caused to Mrs Bilson by the manner of her dismissal are also factors limiting Mrs Bilson active job seeking then I consider that I should take this into account and discount the amount of compensation I would otherwise order on the basis of the limited efforts to mitigate loss.
Amount of remuneration earned - 392(2)(e)
[36] No remuneration has been earned by Mrs Bilson between the date of dismissal and the conclusion of the hearing.
Amount of income reasonably likely to be earned - 392(2)(f)
[37] Given Mrs Bilson personal circumstances in not being able to actively seek work after her dismissal it is reasonably likely that Mrs Bilson would not have earned any income during the period between the making of the order for compensation and the actual compensation.
Any other matter - 392(2)(g)
[38] I note that in determining an amount of compensation for an order under subsection 392(1) any amount of compensation must not exceed the cap set by s.392(5). I have considered and applied the decisions given in relation to s170EE of the Industrial Relations Act which was in similar terms to s.392.
“The provisions of s 170EE [of the former Industrial Relations Act 1988] which enable compensation to be ordered are not intended to punish an employer for contravening the Act on the basis that a less serious contravention should attract a small amount of compensation while a more flagrant contravention should attract a greater amount of compensation. The purpose of s 170EE(3) is to compensate an employee … .” (Bean v Milstern Retirement Services Pty Ltd, [1995] IRCA 274, 2 June 1995, Moore J). See also PrintLinx Pty Ltd v Hughes, PR910359 at pn 28, 17 October 2001, Ross VP, Lacy SDP, Holmes C.
[39] I also have taken into account that compensation for unfair dismissal is limited to the unfair dismissal and is not compensation for other breaches of the Fair Work Act which may have been alleged. Whether or not Mrs Bilson was entitled to a payment in lieu of notice pursuant to s.117(2) of the Act is not a matter for me to decide and it is not a matter which has any bearing on the amount of compensation which I determine in accordance with the provisions of s.392 of the Act.
Reduction for Misconduct - 392(3)
[40] S.392(3) requires that I must reduce the amount of compensation I would otherwise order by an appropriate amount if I am satisfied that misconduct of Mrs Bilson contributed to Mission Australia’s decision to dismiss Mrs Bilson.
[41] Misconduct is not a defined term in the Act. However, s.12 of the Act provides that “serious misconduct has the meaning prescribed by the regulations.” Regulation 1.07(1) of the Fair Work Regulations provides that:
“1.07(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.”
[42] The common law is replete with cases which have examined the concept of serious misconduct. In North v TV Corp, Smithers and Evatt JJ said:
“It is of assistance to consider the expression “misconduct” by reference to subject matter to which it is related and the context in which it appears. The subject matter is the termination by one party against the will of another of a continuing contract of employment on the ground of breach of one of the terms of the contract. And the context is such as to indicate that certain breaches of a non-serious nature, some of which would be within the connotation of misconduct, are not regarded as grounds for termination. In such a situation it is reasonable to interpret the expression “misconduct” as referring to conduct so seriously in breach of the contract that by standards of fairness and justice the employee should not be bound to continue the employment.
This situation would arise if there were conduct inconsistent with the fulfilment of the express or implied conditions of service. It is conduct of that kind which will justify dismissal at common law.” 1
In Pillai v Messiter, Kirby P said:
“...in the United States, “misconduct” generally means wrongful, improper or unlawful conduct, motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one’s acts. Similar approaches to the meaning of the word “misconduct” have been taken in Australia, outside the context of professional discipline: see, eg, O’Connor v Palmer (No 1) (1959) 1 FLR 397. The primary dictionary meanings confirm that this is also the way “misconduct” is used in everyday speech.” 2
Butterworths Australian Legal Dictionary defines misconduct in the same terms as used by Kirby P.
[43] What flows from this is that misconduct for the purposes of s.392(3) would mean wrongful or unlawful conduct, motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one’s acts but which is not so seriously in breach of the standards of fairness and justice that the employer should not be bound to continue the employment.
[44] The conduct of Mrs Bilson which contributed to Mission Australia’s decision to dismiss her included both the conduct of Mrs Bilson in making the phone call on the 26th November 2009 and the conduct of Mrs Bilson in allocating jobseeker files to Ms Binder on 22nd December 2009. I find that the conduct of Mrs Bilson which contributed to Mission Australia’s decision to dismiss her was not misconduct for the purposes of s.392(3) of the Act.
Disregarding shock, distress etc - 392(4)
[45] I have, in calculating the amount of compensation to be ordered under s.392(1), disregarded any shock, distress or humiliation, or other analogous hurt, caused to Mrs Bilson by the manner of her dismissal. I note that to the extent that Mrs Bilson claimed any hurt from the manner of her dismissal she did so only in relation to issues concerning the matter of mitigation of loss.
Compensation cap - 392(5)
[46] Applying the terms of s.392(5) the compensation cap in relation to Mrs Bilson will be $36,450.00.
Conclusion on Compensation
[47] Having taken into account each of the criteria in s.392(2) and having regard to the operation of s.392(3), (4) and (5) I determine that the amount of compensation to be ordered to be paid under s.392(1) by Mission Australia to Mrs Bilson is the sum of $18,225.00
[48] An order giving effect to all of these matters will be issued separately.
REASONS FOR DECISION
[49] An Application for an unfair dismissal remedy was made by Ms Heather Bilson on 25 January 2010 in relation to her termination of employment by Mission Australia on 13 January 2010.
[50] Ms Bilson’s employment with Mission Australia was terminated by letter and without notice on 13 January 2010. The letter of termination was in the following terms:
“January 13, 2010
Heather Bilson
11 Winterton Drive
Wheelers Hill VIC 3150
Dear Heather,
I refer to our letter dated 12 January 2010 in relation to allegations of serious misconduct.
At that time, you were required to respond to allegations regarding your conduct and given the seriousness of these allegations show cause as to why Mission Australia should not terminate your employment.
Mission Australia have given your responses due consideration and have made a decision that on the balance of probability, these allegations have been proven true.
As such, I wish to advise that your employment will be terminated effective today, 13 January 2010. Your final payment will include any outstanding salary and accrued leave entitlements.
Finally, I would like to take this opportunity to thank you for your service to Mission Australia and wish you success in your future endeavours.
Yours sincerely
Darren Cocker
Business Manager Maroondah”
[51] The termination letter referred to a letter dated 12 January 2010 in which allegations of serious misconduct had been put to Ms Bilson. The letter of 12 January was also from Mr Cocker to Mrs Heather Bilson. The allegations made in that letter are as follows:
“Heather, it is alleged that you have engaged in conduct that breaches the Fair Work Practices Policy, the Grievance Management policy and the Code of Conduct. Specifically, it is alleged that you have harassed Jann Binder and victimised her as a result of her complaint against you. It is alleged that on 22nd December, 2009, you transferred between 40 and 45 job seekers to Jann Binder including double and triple booking client appointments. This action was taken following an agreement that no transfers would occur until the New Year and that any additional caseload would be management by yourself and Tracee Vasallo. As you are aware, Jann Binder was also on a return to work plan following serious health issues.
At this time, our records indicate that one other staff member was allocated a minimal additional caseload of 4 by you and no other staff within the office, apart from Jann Binder, were allocated any additional caseload by you. It is alleged that you have intimidated Jann Binder and made the workplace uncomfortable and unpleasant for her. Jann Binder feels that you have deliberately set her up to fail as a result of her complaint against you for which you received a formal warning. This is considered to be victimisation.”
[52] The letter of 12 January 2010 to Mrs Bilson also specifically referred to a formal warning letter given to Mrs Bilson on 14 December 2009. The contents of the First and Final Warning letter dated 14 December 2009 are as follows:
“December 14, 2009
Heather Bilson
11 Winterton Drive
WHEELERS HILL 3150.
First and Final Warning Letter
Dear Heather,
I refer to our meeting on December 9th regarding your serious misconduct during a number of phone calls to staff members Michelle Memery and Jan Binder on November 26th, 2009 and your response. Your response has been considered.
It is noted that in your response you offered the explanation that your behaviour was not intimidating and threatening, but firm, and that your behaviour was designed to stop the (alleged) further conflict between two staff members. However, this matter is viewed as very serious and consequently warrants a first and final warning that your conduct fell short of the standards required of Mission Australia.
During the meeting you were advised that Michelle Memery, Jan Binder and a client who was present at the time alleged that your communication was loud, involved swearing, and that you made negative comments to both Jann Binder and Michelle Memery, and threatening comments about ongoing employment at Mission Australia. These behaviours constitute bullying and harassment.
During the meeting you were advised there were several breaches of Mission Australia standards including Code of Conduct, Fair Work Practices, Mission Australia Values and supervisory duties as a manager.
To satisfactorily address this matter, you are required to immediately improve in the following areas:
• Behaviour must be professional and appropriate to situation, including method of communication
• Ensure that all staff are treated equally and fairly
• Support of, and adherence to, all MA policies and practices at all times
• Refer to manager any escalating conflicts or matters of concern
• Ensure staff have appropriate management support and supervision at all times, and attend required training and development programs
• Lead by example with behaviour in all situations as a representative of Mission Australia.
Mission Australia is committed to providing assistance with additional training and coaching that may assist you in meeting the expected standards and these will be agreed and confirmed in an Action Plan with you no later than 18 December 2009.
These agreed and required actions will be reviewed during another meeting on Monday 7th January 2010 to determine your progress in satisfactorily addressing these issues.
Should you fail to meet the requirements as discussed, and as outlined in this letter, further disciplinary action may be taken, which is likely to be termination of your employment.
Mission Australia would like to offer you support during this period. If at any time you require further assistance with this matter, please contact me as soon as possible. Please sign below as having read and understood the contents of this letter.
Yours sincerely
Darren Cocker
Business Manager - Maroondah
Mission Australia” 3
Background
[53] Mrs Bilson was employed by Mission Australia on 12 July 2009 to work at a newly established Lilydale office of Mission Australia. The Lilydale office was staffed by a combination of newly recruited employees and some re-allocated employees. Not all employees at the Lilydale office were under the control or direction of Mrs Bilson. Mrs Bilson was employed specifically with the title of Job Seeker Solutions Manager Lilydale. Her Position Description described her role as “Managing a team to deliver the job seeker assessments, skills development, individual support and placement of job seekers” and the purpose of the position was described in the Position Description as “To manage the experience of job seekers in the service through co-ordinating and conducting the assessment of their barriers to employment, leading the employment advisers in addressing these barriers to employment and assisting job seekers in to work.” The Position Description also contained a lengthy and detailed set of key tasks which were part of the position of Job Seeker Solution Manager.
[54] The period of employment of Mrs Bilson was 6 months and 2 days but this period of employment was interrupted by the following:
1. As a result of complaints made by two staff members and a job seeker on 26 November 2009 Mrs Bilson was stood down on pay from the 30 November 2009 until 14 December 2009 on which day she received a first and final warning.
2. Mrs Bilson was intending to return to work on 15 December 2009 but had a period of leave from 15 December 2009 until 20 December 2009 for personal reasons on account of the birth of her grandchild. Mrs Bilson returned to work on 21 December 2009.
3. Mrs Bilson commenced leave from close of business on 24 December 2009 until the 3 January 2010. Mrs Bilson was intended to return to work on 4 January but had a period of sick leave from 4 January until 11 January. Mrs Bilson returned to work on 12 January and was terminated on 13 January 2010.
The issues
[55] The issues raised by Mrs Bilson in this matter were clearly articulated in the Applicant’s Outline of Submissions dated 29 March 2010. Key aspects of the issues as raised are as follows:
“16. The Applicant submits that the Respondent did not have a valid reason for dismissing her related to her conduct or capacity and that she was not guilty of the allegations against her.
17. Other than the issue of the Applicant’s alleged victimisation of Ms Binder it is not clear in what way the Respondent alleges that she harassed, intimidated or made her workplace uncomfortable and unpleasant.
18. The Respondent’s reasons for termination are not sound, well-founded and defensible.
19. The Respondent relies on its records showing that the Applicant allocated certain work to Ms Binder and Ms McGuigan in support of its decision that this evidence that the Applicant victimised Ms Binder. These records on their own do not demonstrate victimisation. The Applicant’s explanation in this regard has not been taken into account.
20. The Respondent in its termination letter states that “On the balance of probability, these allegations have been proven true”. In light of the Applicant’s explanation regarding the allocation of work to Ms Binder, the Applicant submits that it was not possible for the Respondent to have satisfied itself that the allegations against her were, in fact, true and that therefore those allegations were not proven.
21. The Applicant submits that the allegations made against her, including those relating to the warning she received and upon which the Respondent relies in support of its reasons to dismiss her, were not true.
22. The Applicant was effectively penalised for seeking to prevent Ms Binder and Ms Memery from bullying and harassing Mr Hemmingway in accordance with her obligations under the Respondent’s Fair Work Practices policy.
23. The Respondent will need to prove to the satisfaction of Fair work Australia that it had a factual basis for its conclusion that the allegations of serious misconduct have been proven to be true and that this justified summary dismissal in the circumstances.
26. ...The Respondent was given an opportunity to respond to the matters contained in the respondent’s letter dated 12 January 2010 (insofar as all of those matters were clearly put to the Applicant and elaborated at the termination meeting on 13 January 2010).
27. The Applicant responded to the primary complaint regarding the issue of victimisation of Jann Binder. It is not clear whether all of the matters upon which the Respondent relies in support of its reasons for dismissing the Applicant were clearly put to the Respondent (e.g. intimidation, harassment, making Ms Binder’s workplace uncomfortable and unpleasant) before she was dismissed.
28. The Respondent only notified the Applicant of Ms Binder’s complaint and the alleged serious misconduct some weeks after it became aware of this. The Applicant was not given adequate time to consider all of the allegations against her in order to prepare her response to all of the matters that the Respondent ultimately relied on in support of its reasons to dismiss her. The Applicant was therefore denied natural justice.
29. The Respondent failed to apply the processes that it required its employees to adopt in terms of the Leadership program and in terms of Mr Darren Cocker’s own advice to the Applicant that he would do so thereby depriving the Applicant of the opportunity to respond to Ms Bilson’s grievance in accordance with the Respondent’s own processes.
31. ...The Respondent’s reasons for dismissing the Applicant were solely based on her alleged serious misconduct. Therefore, the previous warning that had been issued to the Applicant is not relevant.
32. Insofar as the warning that the Respondent issued to the Applicant may be considered to be relevant, the Applicant submits that this warning is invalid as there was no factual basis upon which the Respondent could issue that warning.
33. The Applicant had notified the Respondent of her decision to appeal this warning.
34. Furthermore, the Respondent failed to comply with its obligations towards the Applicant in issuing a warning contrary to its own Code of Conduct, policies, Values System and its processes as communicated to employees in the Leadership program.
35. The Applicant was ambushed in the manner in which the processes leading up to the issuing of the warning took place.
36. The matters put to the Applicant at the meeting giving rise to the warning followed a script and did not genuinely consider the Applicant’s responses.
40. ...The Respondent did not treat the Applicant in a good and considerate manner, particularly taking into account its additional obligations towards her. The Applicant was therefore, not given a fair go all round.” 4
[56] In response Mission Australia identified the issues to be dealt with in its Outline of Submissions dated 21 April 2010 in some detail. Relevantly the issues raised by Mission Australia include the following:
“6. It is submitted that the respondent had a valid reason for the termination of the applicant’s employment.
7. The applicant engaged in serious and wilful misconduct, constituting bullying and harassment and or victimisation of an employee who was a direct line report to her and who had a month earlier complained to the respondent about applicant towards the complaining employee was in direct contravention of the directives given to her on 14 December 2009 about her conduct in the workplace.
8. FWA should given consideration to all of the circumstances leading to the termination, including the warning issued to the applicant in December 2009 and the content of the letters leading to the termination dated 12 and 13 January 2010 (Steven Petkovski-v-SMS Management and Technology Limited (2010) paragraph [8] FWA 2297).
9. It is submitted that the reason for the termination of the applicant’s employment was sound, defensible and well founded (Selvachandran v Petron Plastics Pty Ltd (1995) 62 IR 371).
10. On 12 January 2010, the applicant was informed in writing of allegations made against her which included that:
a. she had engaged in conduct contrary to the respondent’s Fair Work Practices Policy, Grievance Management Policy and Code of Conduct;
b. she had harassed and victimised Jann Binder in that the applicant had transferred between 40 and 45 job seekers to Ms Binder and double and triple booked appointments for Ms Binder’s appointments as a result of a complaint that Ms Binder had made against the applicant; and
c. the reallocation of files to Ms Binder was action taken following an agreement that no transfers would occur until the New Year.
11. The applicant was provided with an opportunity to respond to the reasons for considering termination of her employment at a meeting on 13 January 2010.
12. The decision to terminate the applicant’s employment was made after considering the applicant’s input to the meeting on 13 January.
14. The reasons for termination of the applicant’s employment did not include unsatisfactory performance.
17. ... The applicant was suspended from duty with pay on two occasions pending investigations of allegations of misconduct. The suspension following the first allegation of misconduct was necessary as, in the event that it was found that the misconduct had occurred, employees would have been exposed to the risk of further abuse pending the finalisation of the investigation. Bearingpoint Australia v Hillard [2008] in the Victorian Supreme Court (paragraphs [80] to [103]) set out the range of factors to be taken into account in determining there was any breach of contract associated with a “garden leave” direction. It is clear in the case of the applicant, that her employment contact (attached at S-A) did not include any requirement on the respondent to provide the applicant with any work it was in fact an implied right of the respondent to direct the applicant to not attend work pending the investigation of the alleged misconduct.
19. ... The applicant was terminated for serious and wilful misconduct and was not entitled to notice or payment in lieu of that notice. Further, at the time the applicant’s employment was terminated the relevant award was the Labour Market Assistance industry Award 2010 which provides at clause 11.1 that notice of termination is provided by the National Employment Standards. The National Employment Standards at section 117(3) provides for 1 week’s notice for an employee with less than 1 year of service. Section 123(1)(b) then states that the provision of the Division (which includes notice of termination of employment) do not apply where an employee is terminated because of serious misconduct.” 5
The Evidence
[57] Nine witnesses gave evidence in this matter and did so over four and a half sitting days.
[58] Mrs Bilson gave extensive evidence on her own behalf and additional evidence in support of her application was given by her daughter, Mrs Paragalli, and by her hairdresser, Ms Pacholli.
[59] Six witnesses gave evidence on behalf of Mission Australia. The main evidence was given by Mr Cocker who was Mrs Bilson’s direct line manager. Mr Cocker gave evidence over 7 hours. Additional evidence was also given by Mr Moore, Ms Memery, Ms Binder, Ms Vassallo, Mr McCauley and a Job Seeker, whose identity has been suppressed.
[60] Counsel for both Mrs Bilson and Mission Australia were extremely thorough in their examination of witnesses. In some respects, both Counsel engaged in aggressive and sometimes extremely aggressive cross examination of witnesses. Some of the evidence given was not directly relevant to the key issues identified by both Mrs Bilson and Mission Australia. However, all of the evidence was contextually relevant in that it painted the picture of the overall circumstances of the relationship between the respective persons in the workplace as well as dealing with the issues specific to the application.
The complaints leading to the First and Final Warning letter dated 14 December 2009
[61] Direct evidence as to the matters occurring on 26 November and which led to the issuing of the first and final warning letter to Mrs Bilson on 14 December was given by Mrs Bilson and Mrs Paragalli and Ms Pacholli who supported Mrs Bilson and by Ms Memery, Ms Binder and the Job Seeker, all of whom made complaints against Mrs Bilson and by Mr Cocker who investigated the complaints and who issued the First and Final Warning letter.
[62] At the heart of the issue concerning the telephone conversation between Mrs Bilson and Ms Memery and Ms Binder on 26 November was whether or not Mrs Bilson used abusive language to Ms Memery or yelled, screamed at both Ms Memery and Ms Binder or whether Mrs Bilson spoke in an aggressive or harsh manner to Ms Memery or Ms Binder.
[63] It was not challenged that the phone call made by Mrs Bilson to the office on 26 November and in which she spoke to Ms Memery and Ms Binder occurred whilst Mrs Bilson was on leave and was attending her hairdresser with her daughter, Mrs Paragalli. I very strongly prefer the evidence of Ms Pacholli in recounting the demeanour, tone of voice and attitude of Mrs Bilson in making the phone call whilst she was in Ms Pacholli’s salon. Ms Pacholli was a very credible witness. Her evidence was straightforward and was a simple recount of what she observed and heard on the occasion on 26 November. There was no hesitation in any of the answers given by Ms Pacholli when giving evidence. The last questions asked in cross examination of Ms Pacholli were as follows:
“PN764
So you value her continued business with you and you value her as a client over those years?---Yes, she's been - yes, a very regular client and I do value her, yes.
PN765
You would certainly want to keep her as a client into the future?---Yes, of course, I would like to keep all my clients, yes.
PN766
So if Ms Bilson asked you to support her when she needed your help with something you would be quite willing to do that, wouldn’t you?---Yes.
PN767
That would be in part to make sure that you maintained that commercial relationship with her, correct?---Yes, that’s correct.” 6
[64] On re-examination Ms Pacholli was asked the following questions:
“PN773
MR BREHAS: Ms Pacholli, do you understand exactly what the last question was that was asked of you, what exactly did you understand from that question?---The question to me was if someone asked me to do something would I do it and if I thought that it was - well, yes, I don't really quite understand it, no
PN774
Would you be asked - if you were asked, for example, by Ms Bilson to lie under oath would you do that for her?---No, no, definitely not.
PN775
Have you lied under oath in making this statement?---No, not at all.” 7
[65] When asked the two questions about lying under oath Ms Pacholli was visibly upset and was quite affronted by the questions. Her answers were delivered in an extremely forthright manner and with a degree of passion. Ms Pacholli was visibly taken aback by the implication that there could have been a suggestion that she was lying under oath. From the body language and the demeanour of Ms Pacholli I have no doubt whatsoever that her answers in all respects were true and her evidence was true and honest. Ms Pacholli’s evidence supports the evidence of both Mrs Bilson and Mrs Paragalli as to issues surrounding the tone and language used by Mrs Bilson in the conversation on 26 November 2009.
[66] I have attached great weight to the evidence of Ms Pacholli and in particular to the demeanour of the witness when giving that evidence.
[67] The only other person who would be in a position as being described as an independent witness was the Job Seeker. Her evidence supported in part, and only in part, the evidence of Ms Memery and Ms Binder.
[68] Under cross examination the Job Seeker’s evidence was strongly attacked as being fabricated:
“PN1941
(suppressed), I put it to you that you're fabricating your evidence and that you're actually formulating it as you're going along?---You are totally wrong. I have no object in – any reason to fabricate my evidence whatsoever. I don't have any gain out of it.
PN1942
(suppressed), we have had a witness yesterday – this was a person who was present at the time – or actually two witnesses yesterday and today who testified to the fact that at the time that this phone call took place and Ms Bilson was making this call, she was not yelling and she was not verbally abusive. How do you reconcile that evidence with yours?---I don't really care what other people say. I know what I heard, and I have no purpose whatsoever in saying anything other than the truth.
PN1943
I put it to you, (suppressed), that your evidence is not truthful and that the evidence they've provided to us is fabricated?---Well, you are inaccurate.
PN1955
. . . (suppressed), I put it to you that you are formulating your evidence. Your evidence is not reliable and as such your witness statement is disputed?---You're laughing - - -
PN1956
MR DAVIDSON: Commissioner, that's now the fourth time that he has put effectively the same thing to (suppressed). She has answered it three times already.
PN1957
THE COMMISSIONER: That's the fourth time that she has denied it.
PN1958
MR BREHAS: Yes.” 8
[69] From her demeanour the Job Seeker was highly affronted by being accused of fabricating her evidence. I have no doubt that her answers in this regard were true and honest. To the extent that there is a contradiction between the evidence of Ms Pacholli and the evidence of the Job Seeker, I prefer the evidence of Ms Pacholli over that of the Job Seeker. I do so because the Job Seeker made clear in her evidence that in listening to the conversation between Mrs Bilson and Ms Binder and in observing the reactions of Ms Binder that this upset the Job Seeker. She explained why as follows:
“PN1834
Why did this upset you so much?---In the past I've had to experience situations like this and in a professional situation it shouldn't happen. It should be consultation and there should be civil discussion, and it should be done – if it's to do with a manager and a staff member, it should be done in an office environment. It should not be done in the open area. The person on the other end of the phone did not know who Jan was with. She wasn't even in the office; she was elsewhere. It was most unprofessional and it hurt me very much because it brought back horrible memories of my environment, as well, and I just didn't deal with it very well.” 9
[70] Whilst I accept that the Job Seeker was giving truthful evidence, it is apparent from her evidence that it is coloured by her perceptions of what occurred and in particular from her own previous unpleasant experiences. In this sense therefore, her evidence is not as objective as that of Ms Pacholli. The demeanour of the Job Seeker in giving evidence was that she was clearly stressed by the recollection of events, both as to the conversation on 26 November and recalling her previous experiences.
[71] Finally I note in relation to the Job Seeker’s evidence that it was not possible for her to compare the telephone conversation she overheard on 26 November with any other conversation. The Job Seeker gave evidence that this was the only time that she had been present when Ms Binder had had a conversation on the telephone with anyone else.
[72] Of the other three witnesses, namely Mrs Paragalli, Ms Memery and Ms Binder, who gave direct evidence as to the telephone conversation between Ms Bilson and Ms Memery and Ms Binder on 26 November, I prefer the evidence of Mrs Paragalli. Her evidence was short, simple, and concise and was clearly supported by the evidence of Mrs Bilson and Ms Pacholli.
[73] I do not prefer the evidence of Ms Memery and Ms Binder. I was particularly aware of their demeanour in the witness box when giving evidence. I found their evidence to be unreliable in all respects. Their demeanour in the witness box was such that I could have no confidence in any evidence they gave in this matter.
[74] Mr Cocker gave evidence of his investigation into the allegations against Mrs Bilson in her telephone conversation with Ms Memery and Ms Binder on 26 November 2010. I found Mr Cocker to be a very glib person. I use the term in its dictionary meaning of: “Fluent and voluble but insincere and shallow”. In his witness statement prepared prior to the hearing, and adopted by him, Mr Cocker describes the investigation of the incident on 26 November and the outcome as follows:
“39. I made appointments with relevant staff and with Heather and interviewed all relevant people. A copy of the interview records are at DC - I, DC - J, DC - K and DC - L.
40. Heather agreed that she had spoken to the two staff involved but denied that she had abused them. This conflicted with evidence from the other individuals. Heather had admitted to me during the investigation that she had phoned Jann and reprimanded her for her behaviour towards Jann (sic) without providing her with any opportunity to respond to the allegations. I considered this, as well as having the conversation on the phone, to be totally inappropriate.
41. I considered that on the balance of probabilities, the alleged abuse had occurred. The bases on which I formed this view were that the information from all other parties confirmed that the phone calls were made, the visible distress on Jann that afternoon and the independent complaint by the Job Seeker. The only contentious point in my view was whether Heather had used raised voice and the job seeker confirmed this to my satisfaction.
42. On 14 December I met with Heather and gave her a First and Final Warning. A copy of this is attached at DC - M. Heather told me that the warning was unwarranted, unfair and undeserving and commented to me that Jann had done this before and just wanted to get rid of her and that I should investigate that fact. I said that I had already had discussions with Jann’s previous manager and he was not aware of anything like this happening in the past.
43. During this meeting, Heather asked me if I believed that she had been abusive and swearing. I told her that on the balance of probabilities that there was inappropriate behaviour on her part. I then said that I don’t know whether she was swearing, but her behaviour was still inappropriate. I highlighted to her that it is completely inappropriate to reprimand staff by staff management and performance and that she should have followed those procedures. This included making sure that individual staff have the right of reply to make sure that natural justice occurs.
44. I told Heather that I expected her to apologise to staff and this was the only way that we could move forward and restore relationships in the Office. Heather initially objected to the apology because she felt that she had done nothing wrong. I told her that it was a requirement on her returning to work. I did not at any time say to Heather that she could make the apology as vague or broad as possible.” 10
[75] In his oral evidence under cross examination, Mr Cocker conceded that it was not proven that any yelling or swearing had occurred by Mrs Bilson in the telephone conversations on 26 November with Ms Memery or Ms Binder. Under cross examination Mr Cocker made the following concession in relation to the First and Final Warning letter:
“PN2887
There were questions about what the first and final warning letter was about and you said that whether there was swearing or yelling or screaming, had not been proven. In your conclusion about the behaviour that justified the first and final warning letter, was abusive behaviour a part of that?---No, it wasn't.
PN2888
So what did it relate to?---It simply related to - the balance of probability was shown to me that there was inappropriate grievance behaviours – inappropriate behaviour in relation to the grievance policy.” 11
[76] At the end of the examination in chief and cross examination, Mr Cocker answered some questions from the Bench as follows:
“PN3054
You've given evidence that your investigation could not establish that there was abusive language and your investigation could not establish that there was yelling?---That's correct, Commissioner.
PN3055
You also have given evidence that the issue you had established was noncompliance with – I think you referred to it as the grievance policy or - - -?---Grievance management policy.
PN3056
Yes?---Yes, Commissioner.
PN3057
If the first and final warning letter was only in relation to breach of a particular policy issue, why was it felt necessary to both repeat an allegation that had not been established and then to repeat the defence to an allegation that had not been established?---My interpretation of that paragraph was that the allegations had to be placed into the letter.
PN3058
Even though they had nothing to do with the first and final warning?---That was my interpretation of it, Commissioner.
PN3059
That they had to be placed there?---That was my interpretation, yes.
PN3060
And how did you form the view that they had to be placed there?---It was explained to me by Ms Cubbins that the allegations had to be placed in the letter.
PN3061
There's an indication in your witness statement that you required an apology to be given by Ms Bilson?---That's correct, Commissioner.
PN3062
How did you convey that requirement of an apology to Ms Bilson?---I explained to her at some length that the team needed to then move on and move forward, and because of the friction between all the staff, that there had to be a step in a direction and I could see that as a manager I would expect that I would take that first step and apologise. Therefore, that I'd expect it of my managers to take that step. As an example of that, during the apology strategy meeting that was conducted at site, I also apologised to the staff that if they felt unfairly treated or uncomfortable in the environment – because as a manager that's what I would expect.
PN3063
One thing that is not clear in certainly your witness statement or in the evidence that has been led so far is what was Ms Bilson expected to apologise for?---She was expected to apologise for inappropriate behaviour.
PN3064
What was the inappropriate behaviour that she was expected to apologise for?---Not following the grievance management practices; not allowing the staff to get right of reply; not allowing her staff to receive what she received in relation to the full process.
PN3065
And was that explicitly articulated to Ms Bilson that that was the nature of the apology and the purpose of the apology?---I believe so, Commissioner, yes.
PN3066
Well, if you believe so, can you actually recall so or do you only believe so?---I explained that point on numerous occasions, both during the meeting that day around receiving that letter – I also reiterated that in the morning at the coffee shop, as well.
PN3067
And why did it have to be a heartfelt apology?---Because as a manager you have to seen to be sincere and to be coming from within.
PN3068
Okay. I note that you just said you have to appear to be sincere, so it didn't have to be heartfelt and could have had the appearances of being heartfelt?---That's correct, Commissioner.
PN3069
Was that conveyed to Ms Bilson?---No, it wasn't, Commissioner.” 12
[77] I note and draw attention to the evidence of Mr Cocker at PN3068 that he was far more concerned with appearances than substance. His evidence in relation to Mrs Bilson giving an apology was reduced at the end to a requirement that the apology have the appearances of being heartfelt and if it had that appearance then that was sufficient. Mr Cocker’s oral evidence is substantively different to what he said in para 44 of his witness statement. Unfortunately, or deliberately, Mr Cocker did not convey that to Mrs Bilson nor from the evidence of Mr Moore does it appear that Mr Cocker conveyed the same message and understanding to Mr Moore in relation to the nature of the apology that was to be expected from Ms Bilson. It appears that Mr Cocker was quite content to have Mr Moore adopt a view as expressed by him, that the conduct of Mrs Bilson was at the very serious end of unprofessional conduct and that the nature of the apology had to be quite substantial. It is clear from the evidence of Mr Moore that his concept of an apology was not one that merely had the appearance of being heartfelt.
[78] What was not disclosed in any of the examination of Mr Cocker was that as part of the process of the investigation Mr Cocker made a report to Mr Moore about the outcome of the investigation. Mr Moore, in answer to some questions from the Bench, said:
“PN3619
What did Darren Cocker specifically say to you was the outcome of the investigation into the allegations made by the two staff members and the client?
---That Heather had spoken inappropriately to the two staff members concerned. She had spoken to them in an aggressive, harsh manner.
PN3620
Is that it? As simple as that and as short as that?---Perhaps in an unprovoked manner, in an unreasonable, unprofessional manner.
PN3621
Did he say anything else? This is your recollection of what Darren Cocker said to you as to the outcome of this investigation?---Yes.
PN3622
Is that it?---And of course that the job seeker who was present at the time had been shocked by what they had overheard and experienced.
PN3623
Anything else?---No, I don't believe so.
PN3624
Was it as a result of that direct report from Darren Cocker that you acted?---Yes, that's right.
PN3625
Was that report verbal or written?---The investigation and the findings were written.
PN3626
The language that you've just described was in a written report?---Yes, I believe so.” 13
[79] Several comments need to be made in relation to this evidence.
[80] Firstly, the written report prepared by Mr Cocker for Mr Moore was not identified in his Witness Statement, nor was it offered as part of the material filed by Mission Australia in these proceedings. Equally it was not called for by Mrs Bilson during these proceedings. It is therefore not a document which is before Fair Work Australia.
[81] Secondly, I note that Mr Cocker gave evidence that he had no doubts about what the hairdresser may say and in his words “I assumed that she’d support Heather’s claims”. 14 This is a statement I clearly discount.
[82] This is so because Mr Cocker as the instructor for the advocate for Mission Australia had the opportunity of sitting through all of the evidence of Mrs Bilson, Mrs Paragalli and Ms Pacholli. He therefore clearly had the ability to tailor his answers to meet matters raised in the evidence of those three.
[83] Thirdly, even though Mr Cocker concedes that it could not be proven that Mrs Bilson either engaged in swearing, yelling or screaming in her telephone conversations on 26 November with either Ms Memery or Ms Binder, he nevertheless came to the conclusion that Mrs Bilson had spoken to Ms Memery and Ms Binder in an aggressive and harsh manner and in an unprovoked manner and in an unreasonable and unprofessional manner.
[84] It would appear that Mr Cocker has placed significant reliance upon the Job Seeker’s complaint as was evidenced by Mr Moore recounting the written report prepared by Mr Cocker. Had Mr Cocker investigated the matter properly and had regard to the evidence of Mrs Paragalli and Ms Pacholli, he would not have been in the position of finding that the allegations of yelling, screaming and swearing were not proven but rather that the allegations of yelling, screaming and swearing were completely disproved. There is a significant difference in having allegations made which have not been proven rather than having allegations made which can be disproved. Had the investigation been conducted properly and had Mr Cocker properly examined both Mrs Paragalli and Ms Pacholli, I am of the view that not only would the allegations have been disproved in relation to yelling, screaming and swearing but that it would have been difficult, if not impossible, for Mr Cocker to come to the conclusion that Mrs Bilson had spoken in an aggressive or harsh manner. In the absence of yelling, screaming and swearing, it is difficult to see how Mr Cocker could have come to a concluded view that the words and language used by Mrs Bilson constituted aggressive and harsh language.
[85] The importance of considering the issues surrounding the allegations against Mrs Bilson on 26 November and the subsequent investigation of those allegations by Mr Cocker is that it led to the issuing of a First and Final Warning letter to Mrs Bilson, which in turn was used as part of the dismissal process.
[86] During proceedings attention was drawn to the language of the letter and the way in which the letter should or should not be interpreted. The letter was drafted with the assistance of Mr Cocker and Ms Di Cubbins of the Human Resources unit (HR) in Mission Australia. From the evidence of Mr Cocker and Mr Moore it was clear that both consider that the contents of the letter were required by HR. In particular, the fact that the letter repeats the allegations made by Ms Memery and Ms Binder even though those allegations were not proved. The very tone of the letter suggests that the allegations were proved and that the First and Final Warning related to the conduct alleged. The evidence of Mr Cocker and Mr Moore was that the allegations were contained in the letter because HR required them to be there for the sake of “transparency”. However, it is clear that if the letter was to be properly transparent then not only should it have included the allegations, it should have also included the specific denial of the allegations made by Mrs Bilson and that fact that the allegations were not proven.
[87] The conclusion I draw from the specific contents of the letter, as insisted upon by HR, is that whilst they may not have been able to prove the allegations, there was a belief that the allegations were sufficiently true to warrant their inclusion in the First and Final Warning letter. This accords with the way in which Mr Moore describes the report prepared of the investigation by Mr Cocker with its reliance upon the complaint made by the Job Seeker.
[88] The conclusion to be drawn from the evidence is that whilst neither Mr Cocker, Mr Moore nor HR felt that the allegations made by Ms Memery, Ms Binder and the Job Seeker could be proven - to the extent of proving that Mrs Bilson engaged in screaming, yelling and swearing - they nevertheless concluded that such conduct probably occurred and whilst the warning had to be for a lesser matter, namely breach of the Grievance Policy and for acting in an unprofessional manner, the requirement placed upon Mrs Bilson to give a real, rather than a ‘Wayne Carey’ apology to staff was predicated upon a belief that the screaming, yelling and swearing probably did occur.
[89] Given the fatal flaw in the investigation process in the failure of Mr Cocker to properly examine Mrs Paragalli and Ms Pacholli and consider their version of events, the entire investigation, the report, the First and Final Warning letter and the requirement to apologise were all fundamentally flawed. This is not to say that the conduct of Mrs Bilson was such as not to warrant a warning or some form of disciplinary action. Mrs Bilson’s concessions as to the nature and the content of the telephone call on 26 November 2009 would warrant some form of disciplinary action. However in the absence of screaming, yelling and swearing, it would appear that the improper conduct by Mrs Bilson was simply to ring staff in the way she did, being on a leave day, and not giving staff a sufficient opportunity to respond. This, in my view, would not have been conduct which would have justified a First and Final Warning with the prospect of termination likely to flow in the near future. If a more proper and considered warning had been given to Mrs Bilson then events later in December would have no doubt had a different outcome.
[90] Mrs Bilson’s employment was terminated on 13 January 2010 on the basis that allegations made on 12 January were considered on the balance of probability to have been proven true.
[91] The allegations against Mrs Bilson contained in the letter of 12 January are set out in paragraph [51] above. What is important to bear in mind is that the allegations can only relate to a period of employment of Mrs Bilson from the 21 December to 24 December. This being the only period of employment by Mrs Bilson since the First and Final Warning letter was issued to her on 14 December. I also note that the allegations made by Ms Binder against Mrs Bilson in Ms Binder’s Statutory Declaration of 4 December 2009 15 were put to Mrs Bilson and considered by Mission Australia as part of the investigation into the telephone call of 26 November. The allegations made against Mrs Bilson on 12 January 2010 are:
- “that you harassed Jann Binder and victimised her as a result of Ms Binder’s complaint against you”;
- “that “On 22 December you transferred between 40 and 45 job seekers to Jann Binder including double and triple booking client appointments. This action was taken following an agreement that no transfers would occur until the New Year and that any additional caseload would be managed by yourself and Tracee Vassallo”;
- “that you have intimidated Jann Binder and made the workplace uncomfortable and unpleasant for her”; and
- That “Jann Binder feels that you have deliberately set her up to fail as a result of her complaint against you for which you received a formal warning. This is considered to be victimisation.”
[92] The only action alleged against Mrs Bilson which is put as a substantiation of the broader allegations made against her, is that “on the 22nd December 2009 you transferred between 40 and 45 job seekers to Jann Binder” and that “this action was taken following an agreement that no transfers would occur until the New Year”. Thus all of the allegations of harassment, victimisation, setting up Ms Binder to fail and intimidation of Ms Binder and making the workplace and uncomfortable and unpleasant for Ms Binder appear only to relate to the action of transferring job seekers to Jann Binder on 22 December 2009.
[93] I draw attention however to the email which Jann Binder sent to Anthony Moore on Wednesday 23 December 2009 and which was appended to his Witness Statement as AM-A in which Jann Binder said “yesterday (22 December 2009) Heather moved into the space nearest my desk (Tracee Vassallo had to move). This makes me feel increasingly uncomfortable and intimidated. In view of my complaint I don’t believe that this should have been allowed.”
[94] This complaint by Ms Binder to Mr Moore on 23 December seems to be at the heart of the allegation made in the letter of 12 January against Mrs Bilson that “it is alleged that you have intimidated Jann Binder and made the workplace uncomfortable and unpleasant for her.” The non-disclosure of the reason for the allegation in the letter dated 12 January 2010 is a serious omission in my considered view. As the evidence of Mrs Bilson made clear at PN585 and PN608, it was at the direction of Mr McCauley that Mrs Bilson sit next to Ms Binder and Mr McCauley acknowledged at PN4351 that the requirement that Mrs Bilson sit next to Jann Binder was “probably not the best choice in hindsight to be honest. I didn’t fully consider the implications of Heather sitting right next to Jann, ...”. It was also clear from the evidence of Ms Binder at PN4187 that no-one, neither Mr Cocker, Mr Moore or Mr McCauley, explained why Mrs Bilson was being required to sit next to Ms Binder in the reallocation of Mrs Binder’s workplace on 21 December 2009. Given that the allegations made against Mrs Bilson only relate to her work in the period from 21 December to 24 December 2009, the allegation that Mrs Bilson had intimidated Jann Binder and made the workplace uncomfortable and unpleasant for her should never have been made by Mission Australia against Mrs Bilson. Any discomfort of Ms Binder in having Mrs Bilson sitting next to her was the direct consequence of the actions of senior management of Mission Australia, actions which Mission Australia did not disclose to Ms Binder nor to Mrs Bilson when making the allegations against her.
[95] The key allegation against Mrs Bilson is that her re-allocation of job seeker files to Mrs Binder on 22 December 2009 was done in direct contradiction to an agreement that no transfers would occur. The agreement referred to in the allegation was identified by Mr Cocker as being an oral agreement reached between himself and Mrs Bilson at a coffee shop meeting on the morning of, and prior to 10am, on 21 December. Reliance was also placed by Mission Australia on a meeting which took place on 22 December at which it was asserted that there was clear agreement that no files were to be transferred until January. For what was clearly a critical issue in the management of work at the Lilydale office and which was critical for the management of Mrs Bilson’s relationship with all other staff, the paucity of detail in the written records of Mission Australia concerning the “agreement” at the meeting on either or both 21 and 22 December that files would not be transferred is surprising.
[96] I have no doubt that the issue of the non-transferring of files of job seekers until January 2010 was a matter referred to at the staff meeting on 22 December. However I do not accept the assertions of Mr Cocker that the discussion at the coffee shop on 21 December concluded with such a clear and unequivocal direction to Mrs Bilson that transfer of files was not to occur until mid January. If the intention of the discussion was, as asserted by Mr Cocker, then I would have expected that such a decision would have been recorded in writing and would have been issued to Mrs Bilson. Similarly to the extent that the same issue was discussed at the meeting on 22 December, I would have expected that if the issue had the level of importance, which Mission Australia asserts it had, it would have led to a written confirmation or written direction being issued to staff at Lilydale. Such did not occur.
[97] The evidence of Mr Cocker, Mr Moore and Mr McCauley all gloss over the state of mind of Mrs Bilson. As the evidence makes clear from Mr Moore and Mr Cocker, Mrs Bilson was effectively given a public reprimand in front of other staff at the Lilydale office at a meeting on 21 December because Mr Moore did not consider her apology was sufficient. Such a public reprimand would be a humiliating experience for any employee to endure, particularly as it occurred in front of staff Mrs Bilson directly supervised. The evidence of Mrs Bilson was that this public reprimand had a traumatic effect on her. Notwithstanding that this public reprimand left Mrs Bilson visibly upset, it appears from the evidence of Mr McCauley, Mr Cocker and Mr Moore that they treated Mrs Bilson on both 21 and 22 December as having been unaffected by this.
[98] I accept Mrs Bilson’s evidence in relation to events on 21 December and 22 December. It is clear in my mind that Mrs Bilson was not specifically or directly told not to transfer client files and that whilst she was physically present at the staff meeting on 22 December, she was still suffering considerable residual effects of the humiliation of being publicly reprimanded by Mr Moore at the meeting the day before. Whilst the allegations by Mission Australia were that Mrs Bilson had deliberately set up Ms Binder to fail, it would appear from the evidence in this matter, that in many respects Mission Australia set up Mrs Bilson to fail. At least insofar as Mission Australia rely upon a purported agreement or instruction that no files be transferred until January 2010.
[99] In considering all of the evidence concerning the termination of Heather Bilson on 13 January, it is necessary at this stage to paint the picture that emerges from the evidence. After a 3 week absence from work which involved both a suspension from duties and leave, Mrs Bilson returned to work on the morning of 21 December. Mr Cocker took Mrs Bilson out of the workplace and had an “off-site meeting” with her at a local coffee shop. That meeting discussed a range of issues including strategies and the proposed apology that Mrs Bilson was expected to give. The issue of caseload changes was “one of the many comments that was mentioned during that meeting”. 16 Mr Cocker did not produce written minutes of this meeting, nor did the outcome of this meeting lead to any written communication to Mrs Bilson. No formal or written instructions were given to Mrs Bilson arising from this meeting. Mr Cocker and Mrs Bilson returned to the office in time for a general staff meeting at 10am. A clear purpose of this meeting was to require Mrs Bilson to give an apology to staff. The terms of the apology had been discussed by Mrs Bilson and Mr Cocker earlier that morning. Mrs Bilson gave an apology. The apology was deemed to be unacceptable by Mr Moore. Mr Moore stopped the meeting and challenged Mrs Bilson on the form of her apology.17 Mr Moore later spoke to Mrs Bilson away from the meeting and berated her for her apology.18 Mrs Bilson became visibly upset by Mr Moore’s challenge to her apology.
[100] At lunch time Mr McCauley met with Mrs Bilson to discuss with her communication with staff. Mr McCauley was not a direct line manager of Mrs Bilson but was a more senior employee of Mission Australia and was co-located with Mrs Bilson at the Lilydale office. As part of that lunchtime discussion Mr McCauley indicated the need for her Mrs Bilson to move out of her office and into the general office area. After lunch Mrs Bilson moved from her office into the general office. The location she moved to was directed by McCauley and had Mrs Bilson sitting in the same cubicle area as Ms Binder. 19 Mr McCauley did not inform Ms Binder that the move by Mrs Bilson from her previous office to the cubicle was at his direction.
[101] On the morning of 22 December a staff meeting was held at the Lilydale office. Tracee Vassallo who had been acting JSSM in Mrs Bilson’s absence, continued to work at Lilydale on the 21st, 22nd, 23rd and 24th December. The meeting included a discussion or reference to caseload transfers. After the meeting Mrs Bilson returned to her work station in the same cubicle as Ms Binder and spent a portion of the rest of the day re-allocating work from Mr Hemmingway, who had resigned, to Ms McGuigan and Ms Binder. On completion of this task, Mrs Bilson produced print-outs of the re-allocations. Mrs Bilson first approached Ms McGuigan to discuss the transfer of cases to her. 20 Whilst Mrs Bilson was discussing the case transfers from Mr Hemmingway to Ms McGuigan, Ms Binder made a complaint to Tracee Vassallo21. Tracee Vassallo listened to the complaint and then subsequently spoke to Mrs Bilson who explained her actions. The complaint from Ms Binder was in relation to being double or triple booked on some days into the future. Ms Vassallo who was not the acting JSSM of the Lilydale site, acted inappropriately in accepting the complaint from Ms Binder and not referring Ms Binder to Mrs Bilson.22 By close of business on 22 December or no later than early on 23 December, Ms Binder communicated with Ms Vassallo that the double and triple bookings had been removed and that she was satisfied with the caseload allocated to her.23 Ms Binder did not at any time make a complaint or approach her nominal JSSM Mrs Bilson in relation to caseload issues on 22, 23 or 24 December. Mrs Bilson had intended to talk to Ms Binder on 22 December about caseload re-allocations but Ms Binder’s direct approach to Ms Vassallo precluded that course of action. Mrs Bilson was under a direction from Mr Cocker not to talk to Ms Binder unless with another person present or unless such conversation took place in an open environment in which other persons could overhear the conversation.24
[102] On the 23 December Ms Binder formally complained to Mr Moore about the case re-allocations on 22 December and included a complaint of intimidation and harassment by reason of Mrs Bilson sitting in the same cubicle as Ms Binder. I attribute a high level of vindictiveness to the actions of Ms Binder in the way in which she complained about Mrs Bilson. On 24 December Mr McCauley at the request of Mr Moore spoke to Mrs Bilson in relation to the caseload re-allocations. Prior to the complaint being made by Ms Binder on 23 December to Mr Moore the issue at the heart of her complaint, namely case re-allocations which led to double and triple bookings, had been resolved.
[103] Mrs Bilson did not return to work after the Christmas break due to a period of sick leave. Mrs Bilson returned to work only on 12 January 2010 when she was given the letter containing the allegations made against her.
[104] On 13 January Mrs Bilson did not attend the Lilydale office but went straight to the Ringwood office for the meeting with Mr Cocker, Mr Moore and Mr McCauley.
[105] One hour after the conclusion of that meeting Mrs Bilson was terminated on the basis of a finding that all allegations made against her had been proven. The only material put forward in relation to the investigation of the allegations was the minutes of a meeting between Mrs Bilson and Mission Australia on 13 January 2010. 25 No other material was put forward indicating any other enquiries or investigation being conducted by Mission Australia into the allegations made in the letter of 12 January 2010.
[106] The picture painted above establishes to my satisfaction that Mission Australia did not have a valid reason for dismissing Mrs Bilson and in doing so the dismissal was unfair.
COMMISSIONER
Appearances:
C. Brehas, for Heather Bilson
R. Davidson, for Mission Australia
Hearing details:
2010.
Melbourne:
May 3, 4, 5, 19, 20
June 4.
1 North v TV Corp 11 ALR 599 at 609
2 Pillai v Messiter [No2] (1989) 16 NSWLR 197 at 200
3 Exhibit D7- attachment DC-M
4 Outline of Submissions of Applicant at paras 16-23, 26-29, 31-36 and 40
5 Outline of Submissions of Respondent at paras 6-14, 17 and 19
6 Transcript at PN764-767
7 Transcript at PN773-PN775
8 Transcript at PN1941-1943, PN1955-PN1958
9 Transcript at PN1834
10 Exhibit D7 paragraphs 39-44
11 Transcript at PN2887-2888
12 Transcript at PN3054-3069
13 Transcript at PN3619-3626
14 Transcript at PN2886
15 Exhibit D13
16 Transcript at PN3077
17 Transcript at PN3388
18 Transcript at PN3398
19 Transcript at PN585
20 Transcript at PN1316
21 Transcript at PN442
22 Transcript at PN2977-2980
23 Exhibit D16 at para 25
24 Transcript at PN1314 and PN 636
25 Exhibit D15, part 2
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