Lynne Game-Bowker v Water Corporation
[2012] FWA 6903
•13 AUGUST 2012
[2012] FWA 6903 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lynne Game-Bowker
v
Water Corporation
(U2011/12793)
DEPUTY PRESIDENT MCCARTHY | PERTH, 13 AUGUST 2012 |
Termination of employment.
Background and History of Events
[1] On 26 July 2007, Ms Lynne Game-Bowker (the Applicant) was employed as a full time employee of the Water Corporation (the Respondent) as a Contracts Consultant in the Contracts Establishment, Procurement Branch. On 6 October 2011, the Respondent wrote to the Applicant terminating her employment. The reasons provided in the letter for the dismissal were that the Respondent had formed the view that the Applicant hadbeen dishonest and had breached the Water Corporation Code of Conduct (the Code). The Respondent determined that the Applicant’s conduct and behaviour constituted misconduct due to a breach of the trust and confidence necessary between an employer and an employee.
[2] The issues relating to and leading up to the termination of the Applicant’s employment concerned the period from mid to late 2010 until her dismissal. In July 2010, a new manager, Mr Wright, was appointed to the position of Contract Establishment Manager (Procurement Branch) (the CEMPB). The Applicant had previously acted in that position. At the time of the appointment of the new manager, the Applicant was on parental leave.
[3] During October 2010, the Respondent decided to restructure the Procurement Branch, a consequence of which was the establishment of a new position of Principal Consultant - Contracts Establishment (the PCCE position). The Applicant applied for that position and was interviewed for it on 15 December 2010. A number of other employees applied for the position. The successful Applicant was Ms Dara Byrne. The Applicant was advised on 20 December 2010 that she had been unsuccessful.
[4] After it was known that Ms Byrne had been successful, some of the unsuccessful applicants, including the Applicant, were concerned with the conduct of the interviews for the position. Four unsuccessful applicants held a meeting regarding those concerns on 22 December 2010. Following that meeting, there were a series of email exchanges between some of the participants in the meeting. Three of the participants in the meeting, namely the Applicant, Ms Melinda Honey and Ms Esther Ortiz, lodged formal written grievances about the selection process (the Selection Process Grievances).
[5] Prior to the Applicant’s interview for the PCCE position on 15 December 2010, she had held a number of concerns about the behaviour of Mr Wright. Those concerns culminated in the Applicant lodging a formal grievance with the Respondent (the Bullying Grievance) alleging, in effect, that Mr Wright had bullied and harassed her within the workplace during October and November 2010 and identifying incidents in support of her allegations.
[6] The Respondent decided to refer these, and a number of other apparently related grievances, for investigation, to Mr Peter Burgess, a consultant experienced in investigating these types of matters. Mr Burgess interviewed the Applicant and she raised three further incidents in January 2011 alleging bullying and harassment by Mr Wright. Mr Wright was not interviewed by Mr Burgess as he was not willing to participate. On 11 January 2011, Mr Wright resigned.
[7] Mr Burgess provided his report and findings to the Respondent in March 2011. The report concluded, in essence, that the alleged bullying and harassment identified in the grievance could not be substantiated. Mr Burgess also found that the further allegations and incidents reported by the Applicant during her interview constituted office banter of a nature and type that he did not consider to be bullying or harassment.
[8] With respect to the Selection Process Grievance, Mr Burgess reported that the grievances were without substance and that it was not possible to make any conclusions.
[9] The Burgess Report also reported what the Respondent described as “remarks” on matters adverse to the Applicant. Mr Burgess observed that it was “possible to conclude” that:
1. By waiting 48 days after one of the alleged incidents comprising part of the Bullying Grievance, and then submitting that grievance immediately after she had been interviewed for the PCCE position on 15 December 2010, the Applicant breached provisions in the Code;
2. the Applicant and Ms Honey colluded and breached the confidentiality of a prior selection process and attempted to use such confidential information inappropriately;
3. the Applicant provided false and misleading information, and engaged in collusive behaviour with Ms Honey and Ms Ortiz, when lodging the second grievance;
4. the Applicant’s Selection Process Grievance was vexatious and frivolous; and
5. all of the Applicant’s allegations forming part of the Selection Process Grievance were without foundation.
[10] Dr David Luketina, the General Manager of the Business Services Group, considered that a further investigation should be carried out into Mr Burgess’ findings and that the issues identified by Mr Burgess relating to the Applicant should be raised with her. He was concerned that a misleading and vexatious complaint may have been lodged and that there may have been collusion between employees asthree employees had raised similar issues.
[11] On 10 March 2011, Dr Luketina consented to Ms Bianca Haines accessing the email accounts of the Applicant, Ms Honey and Ms Ortiz. Ms Haines is a HR Business Partner at the Respondent; a position she was appointed to in February 2011, previously having been a Senior HR Consultant at the Respondent. She first became involved in the issues relating to this matter when she received a copy of the Burgess Report on 4 March 2011.
[12] On 16 March 2011, Ms Haines was given access to the Applicant’s emails, allowing her to view email exchanges between the Applicant, Ms Honey and Ms Ortiz.
[13] Also on 16 March 2011, the Respondent, through Dr Luketina, advised the Applicant of those aspects of the Burgess Report relevant to her, including those potentially adverse to her, and sought a response from her about those issues. Dr Luketina met with the Applicant on that day and provided a letter to her which summarised the findings together with related details. The letter also stated that the matters were of a private and confidential matter and that failure to maintain appropriate confidentiality would constitute a breach of the Code which could result in disciplinary action, including termination of employment. The confidentiality issues were also raised by Ms Haines in the meeting.
[14] The Applicant engaged a law firm experienced in dealing with employment matters. On 11 April 2011, the law firm provided a response to the 16 March letter on behalf of the Applicant. The six page response disputed all of the allegations against the Applicant asserting that they were “without valid grounds and/or cannot be substantiated” and that “an investigation or any further action is not warranted in the circumstances”.
[15] In response to the allegation that the Applicant had “engaged in collusive behaviour with Ms Honey and Ms Ortiz when lodging your grievance”, the Applicant asserted that she “had no knowledge of Honey or Ortiz lodging their own grievances regarding the interview and/or selection process”. The letter stated that “After the meeting with Ms Thorson on 23 December 2010, our client, Honey and Ortiz did not discuss the situation any further” and that she “only heard about Honey’s grievance at her farewell drinks on 18 March 2011” and “only learned about Ortiz’s grievance after she had left Water Corp, on or about 24 March 2011”.
[16] From 16 March 2011, Ms Haines monitored the email exchanges between the Applicant, Ms Honey and Ms Ortiz until 8 April when she went on leave. Ms Haines reported to Dr Luketina about the content of some of the emails. Ms Haines also printed out the emails and provided them to Ms Clarke, the HR Consultancy Services Manager.
[17] The emails were shown to Dr Luketina. He was concerned about the content including:
1. Nicknames used for other employees such as “Dora the Explorer”, “Womble”, “Tinkles” and “Boy Bimbo”.
2. A suggestion by the Applicant that “We should really have a drink this week for our first success”, obviously referring to the resignation of Mr Wright.
3. A comment by the Applicant that “If we put enough pressure on her, she may follow Tinkles”, referring respectively to the successful applicant Ms Byrne and Mr Wright.
4. A comment by the Applicant that “I decided a long time ago that I will be their most quiet but painful haemorrhoid”.
[18] On 6 May 2011, Dr Luketina met with the Applicant and handed her a letter. The letter outlined the Respondent’s assessment and grounds for conclusions reached and stated that:
“...I have determined you have not been honest and as such I believe your conduct and behaviour constitutes a breach of trust and confidence necessary between an employer and employee. Accordingly, I require you to respond in writing to this letter by 4:00pm on 13 May 2011 outlining the reasons as to why your employment should not be terminated. You are not to attend the workplace until you receive further notice from me. You will continue to receive your full pay and benefits during this time.”
[19] On 20 July 2011, the Applicant’s lawyers (by this time she had appointed different lawyers to represent her), after a series of postponements, responded on her behalf. The response revisited the Applicant’s complaints about Mr Wright and asserted that the incidents, the investigation into them and the findings arising from that investigation had affected the Applicant’s health. The letter then gave detailed responses to the findings against her, refuting each one of them.
[20] The letter made a number of criticisms about the Respondent’s conduct, mainly directed at the investigation carried out by Mr Burgess. The letter noted that the Respondent had a duty to ensure the safety of its employees, and asserted that the Respondent “had breached this duty and its policy regarding bullying, harassment and discrimination in the workplace”. Allegations were also made against Mr Orr, the Branch Manager of the Procurement Branch, claiming that he had failed to address the Applicant’s concerns about Mr Wright or provide any support for the Applicant.
[21] The letter concluded by stating:
“Please advise our office:
a. As soon as the charges outlined above have been dismissed;
b. whether Ms Game-Bowker will be on paid leave until she is able to return to her duties; and
c. whether Ms Game-Bowker will be reimbursed for any sick leave and long service entitlement taken due to the Water Corporation’s egregious conduct in dealing with this matter.
Failing which, we will advise our client of her options, including a civil claim againt (sic) the Water Corporation, an Industrial Relations action and/or a Worker’s (sic) Compensation claim.”
[22] The Respondent did not respond to the letter, however a meeting was held on 26 August 2011 and some further communications of a procedural nature occurred.
[23] On 8 September 2011, the Applicant’s solicitors provided a further written response to the Respondent’s allegations against her. This letter outlined the Applicant’s understanding of the allegations against her and a detailed response to each allegation. The Applicant rejected each of the allegations against her and stated that:
“There is simply no basis upon which Ms Game-Bowker’s employment could be terminated by the Water Corporation and any decision to do so would be without cause and capricious. She has not breached confidentiality, has a history of meeting or exceeding the Water Corporation’s objective and standards, and strives at all times to be courteous, respectful, competent and professional.
Ms Game-Bowker lodged her grievance in good faith and on legitimate grounds. It was neither misleading, vexatious, malicious or frivolous. The Water Corporation does not appear to have dealt with Ms Game-Bowker with respect transparency and fairness considering her years of valued and loyal service.”
[24] On 6 October 2011, Dr Luketina wrote to the Applicant and advised her that her employment had been terminated effective immediately. The reason given in the letter of termination was that the Applicant had been dishonest and had breached the Code. He stated that the responses given by the Applicant did not display sufficient mitigating circumstances and that there was not sufficient trust and confidence for her employment to continue.
Consideration
[25] Whether the Applicant did breach the Code or not is important but not essential for a determination of whether the dismissal was harsh, unjust or unreasonable. The Code is important as a guide for employees to understand what is expected of them, however it really does no more than identify and put in writing what the Respondent is entitled to expect from any employee, namely; honesty, integrity, courtesy, confidentiality and the like.
[26] It is also not necessary for me to make any findings about whether the Applicant was bullied or harassed, especially given that the person that the allegations were made against did not give any evidence, and indeed decided not to make any comments to the investigator of those complaints. I also make no adverse inference from Mr Wright not giving evidence nor from the fact that he resigned from the Respondent’s employment at about the time the complaints were made.
[27] It is the grounds that the Respondent relies on to support the basis of their conclusion that are critical in this matter. The grounds were outlined in the Respondent’s summary. They say that the Applicant was dismissed because she had:
“(a) Breached the Corporation’s Code of Conduct by failing to uphold its values and good reputation;
(b) Breached the Corporation’s Grievance Procedure Policy (Bullying);
(c) Breached her relationship of trust and confidence with the Corporation;
(d) Not behaved honestly and with integrity; and
(e) Failed to treat all employees of the Corporation with respect, fairness and courtesy.”
[28] The Respondent also says that Dr Luketina’s decision to dismiss the Applicant was primarily informed by his view that the Applicant had not behaved honestly and had exhibited a pattern of behaviour that had demonstrated that she could not be trusted to act in the best interests of the Respondent. The conduct that the Respondent says supports Dr Luketina’s decision follows.
[29] First, the Respondent alleges that the Applicant made and pursued grievances that were unfounded and vexatious and therefore she committed acts of misconduct.
[30] Second, the Applicant, through the April response, falsely or misleadingly asserted to the Respondent that she had, until particular dates, not known that two of her colleagues (Ms Honey and Ms Ortiz) had lodged grievances in relation to an alleged unfair recruitment process.
[31] Third, the Applicant, through the April response, falsely or misleadingly asserted to the Respondent that after 23 December 2010, she, Ms Honey and Ms Ortiz had not discussed “the situation”.
[32] Fourth, the Applicant failed to retract any of her false or misleading statements at any time despite several opportunities to do so prior to her dismissal in October 2011.
[33] Fifth, the Applicant engaged in email correspondence with two of her colleagues; the content and tone of which exhibited, on its face, a regrettable attitude towards her employer, a marked lack of respect for some of those in management and several of her colleagues and a general intention not to act in the best interests of the Respondent.
[34] Sixth, the Applicant breached the confidentiality of a prior selection process and attempted to use such confidential information inappropriately.
[35] It is convenient to follow the approach and issues outlined by the Respondent.
Did the Applicant lodge and subsequently maintain a false grievance?
[36] Regardless of any conversations or comments between Mr Wright and Ms Byrne that may have occurred, it is clear that Mr Brian Jennings, a consultant, prepared the profile position which he sent to Mr Orr on 10 August 2011. Mr Orr sent the draft position to Mr Wright for comment and he responded the same day and made no alterations nor suggested any changes. Although it is unclear what date Mr Orr sent the draft to Mr Wright, what is clear is that Mr Orr developed it, drafted it and circulated it to appropriate people and Mr Wright made no changes to it. Whilst Mr Wright, Ms Byrne and Mr Jennings were not called, I consider Mr Orr’s explanation of what occurred to be an accurate account. Ms Byrne was not involved in either the creation or the review of the position profile for the PCCE position with Mr Wright as it was not established by him, but rather, it was the consultant who reviewed the operations and structure of the section and made the recommendations regarding it and the position that arose as a consequence.
[37] It follows from my finding above that the Applicant was wrong in her assertion that Ms Byrne had been involved in the position profile for the PCCE position. However, it does not follow that the Applicant lodged a false grievance and maintained that grievance in the knowledge that it was false. I also do not consider that any inconsistencies in the Applicant’s evidence that warrant me forming an adverse view about her credibility on this issue.
Did the Applicant provide false and misleading responses to the Respondent?
[38] The contention here is that the response provided by the Applicant’s lawyers on 11 April 2011 stated that the Applicant had no knowledge of Ms Honey or Ms Ortiz lodging their own grievances and that she only heard that those grievances had been lodged in mid to late March 2011.
[39] The Respondent did not rely heavily on this ground but neither did they abandon it.
[40] I consider that the Applicant’s account of this is plausible. The reference made in the letter of 11 April was a reference to her knowledge of any “formal” grievance being lodged by Ms Ortiz or Ms Honey.
[41] The documentation and events that the Respondent rely upon are not of a nature that I am convinced establish anything beyond what the Applicant contends, namely, that she did not have knowledge of any formal grievances lodged by her two colleagues. The Applicant clearly did have knowledge of the existence of complaints by the other employees, although perhaps not of formal grievances being lodged. However, she would have known that the Respondent also had clear knowledge of her involvement with the other employees through the initial meetings and discussions with the Respondent’s Human Resources staff. Whilst the Applicant may have been pedantic in these statements in the letter, I do not consider it has the character, nor the intent, of her being dishonest.
Did the Applicant falsely or misleadingly assert that she had not discussed “the situation” with Ms Honey and Ms Ortiz?
[42] The Respondent says that the Applicant’s response letter of 11 April, which states that: “After the meeting with Ms Thorson on 23 December 2010, our client, Honey and Ortiz did not discuss the situation any further”, supports their contention that she gave false and misleading responses to them regarding their allegations.
[43] There were communications between the Applicant, Ms Honey and Ms Ortiz after 23 December through emails. It is also clear that the Applicant was informed verbally and in writing that the progression of her complaints was confidential and was directed to not discuss it.
[44] The Applicant, in her evidence, acknowledged that the words; “the situation” in the 11 April letter was a reference to the selection process and dissatisfaction and concerns with respect to it.
[45] The responses the Applicant gave to questions during her evidence were careful and considered. It seems to me that she would not have carelessly or inadvertently discussed anything about her complaint with anybody. The Applicant also seemed to me to be a person who would have knowledge of and abide by rules and procedures. Indeed, the nature of her complaints supports my impression of her character in that regard.
[46] I therefore find it most improbable that the Applicant would allow the relevant statement regarding her not discussing her complaint to be included in the letter without her knowledge, to not refer to emails as a form of discussion or to not be referring to the complaint she had lodged regarding the selection process. I also find that the Applicant was aware of the direction to her not to discuss the grievance.
[47] However, I do not consider the nature of those communications went beyond what might be acceptable and reasonable in day to day chat between employees. Her communications were of a procedural nature rather than of any substantive issues. Even if she did, the nature of those discussions is such that I do not consider this a breach of confidence or trust as I do not regard the communications as having the potential to undermine or frustrate the investigation or deliberations
[48] I therefore find that the Applicant did not falsely assert that she had not discussed her grievance with Ms Ortiz and Ms Honey.
Did the Applicant fail to retract any of her false or misleading statements?
[49] I accept and find that the Applicant did not retract any of her alleged false and misleading statements and in her evidence before me here, gave account and explanation regarding them.
Did the Applicant engage in email correspondence demonstrating a marked lack of respect for management and colleagues and a general intention not to act in the Respondent’s best interests?
[50] The nature of this conduct includes the congratulatory tone of claiming a success for Mr Wright’s resignation, the inference that efforts should be made for Ms Byrne to resign as well and the statement that the Applicant would be the Respondent’s “most painful haemorrhoid”.
[51] Some, if not all of these comments, may have been bravado or jocular and private banter, but they display at least a lack of commonality of goals and aspirations of the Applicant with those of the Respondent. I also appreciate that the Applicant may have either made or tacitly approved of such banter without any real seeking of credit for the resignation of Mr Wright nor any intention to take any actions, or cause any mischief regarding Ms Byrne or becoming an irritation to the Respondent.
[52] The Respondent, I consider, was entitled to have regard to the emails in question and to be concerned about the implications of them. In particular, the Applicant foreshadowed in the emails an intention to frustrate the operations or the harmony within the office. Unsurprisingly, the tone of the emails alarmed Dr Luketina. Had the Applicant shown a degree of contriteness for these types of communications, then Dr Luketina most likely would not have made the decision to dismiss her. I consider the lack of contriteness or acknowledgment of any wrongdoing or plausible explanation about these emails does render the conduct improper.
[53] I therefore do consider that the Applicant engaged in email correspondence that showed a lack of respect and animosity to the Respondent and its achievement of its objectives. I do not include, in making this finding, the nickname banter indulged in.
Did the Applicant breach the confidentiality of previous selection processes and endeavour to use that information?
[54] The issue appears mainly to be the Applicant’s knowledge of Ms Byrne’s experience and the availability of her curriculum vitae (CV). Ms Byrne’s CV appears to have been relatively easy to obtain by other staff through the Respondent’s intranet and the evidence does not establish the Applicant acted improperly or caused any mischief in relation to the information she gained from involvement in Ms Byrne’s original selection process, which resulted in Ms Byrne being employed by the Respondent. I do not consider this allegation has been established.
Was there a valid reason for the dismissal?
[55] There was conduct by the Applicant that was inappropriate. The issue here is whether that conduct was serious enough to warrant dismissal. A measure of the seriousness was Dr Luketina’s evidence that indicated that had the Applicant apologised or been more contrite, then he most likely would not have made the decision to terminate her employment. Another measure is that the inappropriate conduct that I have found did occur included statements made privately of intentions with respect to future conduct, rather than the conduct itself. The knowledge by the Applicant that the Respondent was aware of the emails should have in itself ensured the threatened conduct did not eventuate.
[56] Taking all of these matters into account, I consider that termination of the Applicant’s employment was a disproportionate response to the conduct which I have found occurred. I therefore do not consider that there was a valid reason for the termination of the Applicant’s employment.
Was the Applicant notified of the reason, was she given an opportunity to respond and was she allowed to have a support person present?
[57] The Applicant asserts that the approach and procedures adopted by the Respondent did not afford the Applicant procedural fairness. The instruments that were relied upon by the Respondent are those that notified her of the conduct and behaviour they assert she engaged in the letters of 16 March and 6 May.
[58] In respect of the letter of 16 March, the Applicant asserts that the allegations:
1. Are not cogently set out (in that allegations were compounded, mixed and merged into an incoherent form);
2. contained no particulars; and
3. contained no evidence to support the basis of the allegations of misconduct (other than the flawed investigation which was conducted by Mr Burgess).
[59] In respect of the letter of 6 May, the Applicant asserts that the purpose of it was limited to giving the Applicant the opportunity to: (a) apologise; and/or (b) make submissions as to penalty. She says that the allegations against her in the letter of 6 May are also: (a) not cogently set out (in that the allegations were compounded, mixed and merged into an incoherent form); (b) contained inconsistent, inadequate or no particulars; and (c) contained inconsistent, inadequate or no material evidence to support them.
[60] There is substance in the Applicant’s criticism of the content and nature of the letters of March and May. When Ms Haines was cross examined about grounds she relied on for her views, she seemed to meld each issue and allegation into a confusing overlap of general opinion. In the end her evidence became more in the nature of a general opinion about the Applicant rather than a matrix of facts to support grounds she was relying on.
[61] Secondly, there was an over-reliance on the Burgess Report in the March letter. The Respondent regarded the observations of Mr Burgess as “remarks”, even though Mr Burgess had stated that “it is possible to conclude that” there was collusion, dishonesty, vexatiousness, and breaches of confidentiality by the Applicant. This description is more than a potential issue being raised by Mr Burgess; the phraseology and terminology used by him on any reasonable view gives an impression that there are very strong grounds for making these remarks beyond just a suspicion he held.
[62] Whilst it is always easy in hindsight, it seems to me that: (i) the observations of Mr Burgess were unhelpful and inappropriate; (ii) the reliance on Mr Burgess’ observation was misplaced and (iii) the manner of raising Mr Burgess’ observations with the Applicant by a formal letter of allegations was inappropriate.
[63] Whilst these issues and criticisms may have led to a different sequence, the letter of 16 March, in the end, did not weigh heavily in my views regarding a lack of procedural fairness. I have that view because the letter, although in a rather heavy handed manner, at least identifies issues of concern regarding conduct and behaviours the Applicant is asserted to have been engaged in. I consider that the Respondent was therefore obliged to raise those concerns with the Applicant.
[64] Of more importance is the letter of 6 May. The Respondent formed a conclusion relying on the Applicant’s 11 April response to the 16 March letter, the findings in the Burgess Report and additional information which was mainly email exchanges. In particular, the Respondent did not provide any proper opportunity for the Applicant to respond before the Respondent concluded she had been dishonest in her letter of 11 April regarding her knowledge of the Ortiz and Honey grievance lodgement. It was this supposed dishonesty that was substantially relied upon by the Respondent in coming to a conclusion that she had not been honest. I have found above that the Applicant’s explanation for the 11 April response was not dishonest.
[65] Rather than making a finding at this juncture about the Applicant’s conduct, the issues raised in the letter regarding her response and the email interchanges, I consider that the Respondent had a duty to raise and seek responses regarding the allegations, rather than seeking the reasons as to why her employment should not be terminated.
[66] Notwithstanding the approach of the Respondent and the nature of the letter, the issues and potential consequences of them were raised with the Applicant. The events and communications after 6 May make it obvious that the Applicant did have an opportunity to respond, although it was not in a context and manner that was conducive to her having an opportunity to fully and fairly explain her account and view of the conduct. The Applicant was also not refused an opportunity to have a support person present.
Size of the employer’s enterprise
[67] The size of the employer’s enterprise did impact on the procedures followed. However, it appears to me that the large size of the enterprise and the extent of human resources expertise did not result in a fair and thorough process as one presumes will occur in larger organisations.
Other Relevant Matters
The length of service and prior performance
[68] The Applicant had been employed for a reasonable length of time and during that time, other than for the period leading up to the dismissal, there appears to have been no concerns regarding her performance, conduct or behaviour. Rather, the issues relate to a relatively short and finite period during her overall employment.
The personal conflicts with Mr Wright
[69] It seems to me that the period of angst and antagonism towards the Respondent by the Applicant relate to that finite period and the conflict between the Applicant and Mr Wright. As I stated above, I make no findings of any wrongdoing by Mr Wright and nor do I make any findings that the complaints of the Applicant about him and others and subsequent events involving Mr Wright directly or indirectly, were justified. Suffice to say that the Applicant had strong personal views about Mr Wright. The fact that Mr Wright had resigned and since departed is a relevant matter that should have been given greater consideration in the decision to dismiss. The Applicant’s views of Mr Wright and allegations about his conduct, whether they actually occurred or not, were clearly a contributing cause of the sequence of events and as he no longer worked for the Respondent, in my view, more emphasis should have been made on re-establishing the relationship between the Respondent and the Applicant, rather than severing it.
Emails and privacy
[70] At any one time every employer will have some employees that are disgruntled. It would be likely that disgruntled employees converse with each other, especially where the cause of their disgruntlement is the same or about similar issues. Whilst it might be imprudent for disgruntled employees to communicate in disparaging terms about their colleagues, one should be very cautious about placing too much weight on such communications, especially such a common practice as giving colleagues nicknames. Here, there is no evidence that the Applicant did actually display a lack of cooperation. Nor is there any evidence that the Applicant was not courteous and professional in her direct dealing with her colleagues.
[71] Therefore, whilst communications of the nature the Applicant engaged in are to be discouraged, they were still in the context of private comments as one would engage in a private discussion. Here, whilst they are serious and certainly should have been raised with the Applicant, they shouldn’t be given greater weight than might be given to any other private conversation and in a proper context of those conversations.
Capacity for the Applicant to express any regret for any of her actions
[72] The approach Dr Luketina appeared to want to take to the concerns about the Applicant’s conduct, by hoping that she would express some regret, was reasonable. It is apparent to me that the Applicant was unprepared then and during these proceedings, to express any regrets for any of her actions, especially her disparaging and possible threatening remarks about her future conduct by being an annoying haemorrhoid.
[73] The Applicant should have expressed regret about the emails and should have had no difficulty in doing so. The fact that she did not is a relevant matter to take into account.
Conclusion
[74] Taking all of the above factors into account, was the dismissal harsh, unjust or unreasonable?
[75] Mr Hooker, for the Applicant, made the observation that this matter concerns a series of circumstances that, better managed, would have resulted in a different outcome that was satisfactory to all. Whilst obviously easy in hindsight, the management of the Applicant and her complaints, I agree, should have been better dealt with. However, there was also no capacity displayed by the Applicant of her preparedness to accept that if she had approached the issues in a more conciliatory manner, there could have been a different outcome. This is especially relevant given that the person who was the cause of her grievances and disenchantment, Mr Wright, had resigned in early January. On the one hand the Applicant wanted to demonise Mr Wright for alleged inappropriate conduct but on the other hand, engage in inappropriate and disparaging comments herself. Indeed, the Applicant’s disparaging comments appear to me to have been significantly more serious than those she alleged of Mr Wright. Whilst she may have considered that behaviour private, she nevertheless engaged in it. To me it is inconsistent and contradictory to be offended by snide and derogatory comments by a manager and then engage in even more offensive comments and then foreshadowing behaving in an uncooperative manner.
[76] The nature of the conduct must be also considered in proportion to the penalty of dismissal. In that consideration the working environment, the relationships and the history of the relationships between those involved and the seriousness of the conduct are all relevant matters. Suffice to say here, I do not consider the conduct I have found to have occurred to be trivial or inconsequential, but nevertheless the management of the issue from not just the Respondent but also the Applicant, should have been more mature and less pedantic.
[77] The conduct must also be looked at in the context of the recent unhappy history of the Applicant’s employment with the Respondent and weighed against the previous satisfactory employment.
[78] Weighing up all of these factors, I consider that the termination of the Applicant’s employment was harsh, unjust or unreasonable. I therefore determine that the dismissal of the Applicant was unfair.
Remedy
[79] As can be ascertained from my reasoning above and my findings, I do not consider that either party is blameless in the events that unfolded.
[80] The primary remedy under the Fair Work Act 2009 is reinstatement. I do not consider that with the change in personnel that the indiscretion of the Applicant’s emails would eventuate in actions or conduct of uncooperativeness. Indeed, that appears to be the view of the current section manager, Mr Scott.
[81] I do not consider it appropriate to order continuity of service nor payment for remuneration lost as a consequence of the termination. Before I issue an order to reinstate the Applicant, I request that the parties have discussions about the timing and logistics to give effect to this decision and for the Applicant to provide me with a draft Order following those discussions.
DEPUTY PRESIDENT
Appearances:
Mr R Hooker of Counsel for the Applicant.
Mr A Musikanth of Counsel for the Respondent.
Hearing details:
2012.
Perth:
May, 15-16, 25 and 31.
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