Mary-Lou Anning v Virgin Australia Airlines Pty Ltd

[2012] FWA 8414

Note: An appeal pursuant to s.604 (C2012/5796) was lodged against this decision.

[2012] FWA 8414

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mary-Lou Anning
v
Virgin Australia Airlines Pty Ltd
(U2012/5538)

COMMISSIONER GAY MELBOURNE, 5 OCTOBER 2012

Termination of employment - arbitration.

[1] The following decision, now edited, was given on 18 September 2012 at the conclusion of proceedings in Brisbane.

[2] “As I have earlier advised the parties, it is my intention to give a decision in this matter now and I propose to commence to do that very shortly. It is abundantly clear for those who have been involved - for the parties - that this is a detailed case with a complex factual and personal background. They are all elements that are required to be considered, but of course against the background of the duties imposed upon me by the relevant section of Fair Work Act 2009 (the Act).

[3] The decision has been prepared after the conclusion of the case yesterday, on the basis that it is really in the interests of the parties for there to be an earlier outcome rather than the significant delay which would accompany a reserved decision. It will take, however, some time for me to deliver this decision which brings to a conclusion lengthy proceedings in the hearing of Ms Mary-Lou Anning’s s.394 application for relief following the termination of her employment by Virgin Australia Airlines Pty Ltd (Virgin).

[4] Ms Anning (the applicant) occupied the position of Safety Specialist Operations from 7 February 2011, having been recruited from CASA, the Civil Aviation Safety Authority, until the termination of her employment by Virgin on 16 February 2012. Ms Anning’s position, as Safety Specialist Operations, was given as a management position, calling on her extensive experience as a commercial pilot in Australia and abroad, with Air Services Australia at its head office and at airport level also, and latterly, from 2009, as an air transport inspector at CASA. Ms Anning was recruited to Virgin by an approach from Virgin’s safety manager and a witness in these proceedings, Mr M Chapman.

[5] There has been extensive witness evidence. I am not going to litanise those who gave evidence and the evidence each gave. I think the parties will well appreciate my close involvement in the hearing of the case and that in saying I have had full regard for what has been put, that is, I anticipate, demonstrably so. I have also benefited from the thoughtful conduct of the case by Ms Anthony, legal counsel of The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) and by Ms Garner, by permission, of counsel, for Virgin. As I say, the advocates’ presentation of their cases has been of assistance, particularly their detailed cross examination and short final submissions.

[6] Ms Anning’s statement, Exhibit A1 in these proceedings, sets out the responsibilities including supervising and managing a team initially of four officers, later to be increased by some five part-time operational staff - Cabin Operations Safety Officers and Flight Operations Safety Officers - and by Ms Atkinson. Of these full-time staff, Mr Redgrove, Mr Robertson and Ms Atkinson gave evidence, and Ms Cox and Mr Craven did not give evidence.

[7] Evidence was also given by Ms Anning’s immediate manager, Mr Chapman, the Manager Safety Systems; and by video link from the United States, Mr Aggs, the respondent’s General Manager Safety Systems; Ms Papandreas of the respondent’s staff department; and Mr Hamilton, Virgin's Airworthiness Specialist who occupies a parallel and hierarchically equivalent position, but without reporting staff, and domiciled at the time close to Ms Anning. I do not propose to detail all the evidence given or the contentions arising there-from. The narrative is detailed and requires an appreciation of the perception of events of not all, but most of the witnesses.

[8] Lengthy evidence was given by Ms Anning, Ms Papandreas, Mr Chapman, and then to a lesser extent - the others indicated. As I have already said, I have paid close regard to the course of the case and the evidence given. Whilst I do not propose to repeat what has been put, it has all been considered. That is often said, of course, but non-reiteration now does not mean that evidence or argument has not been considered.

[9] There are in my view complex aspects of the case. These might be summarised as including the normal difficulties attendant upon Ms Anning’s inheritance of the group, particularly given that her - as I have already said a moment ago - hierarchical equal and colleague, Mr David Hamilton, Virgin’s Safety Specialist Airworthiness, operated in parallel to or in close proximity to Ms Anning’s portfolio and, without staff himself, appears to have exercised some informal oversight of the operations staff prior to Ms Anning's appointment.

[10] There is a contest about the extent to which he did exercise some informal suzerainty over the staff and I do not know that that is of any vital concern; coming to a final view about that. I return to the points I was making as to Ms Anning taking up her position. A relevant factor is the geography and circumstances of the office layout, in that the safety staff, including others not detailed here, all worked, it seems, in a particularly close, open-plan pod office where some, but not all, desks abutted, where concentration could be affected by one’s colleagues, where communication was very often accomplished by email, and some staff wore headsets or headphones.

[11] A further compounding difficulty was that Ms Anning and Mr Hamilton were, it is clear, unable to work smoothly together, even though their close jurisdictions required that there be comity accorded to each by both. A further influence is that Ms Atkinson and Ms Anning also did not find it easy to communicate and work respectfully or smoothly, with each other. Ms Anning was troubled by Ms Atkinson’s ways and, for example, by Ms Anning’s view that Ms Atkinson’s overly direct and unsympathetic way of dealing with pilots required modification.

[12] For Ms Atkinson’s part, quite divorced from behavioural methods also intruding, Ms Anning’s judgement as to operational matters was most imperfect and not one which commanded Ms Atkinson’s respect. For example, the matter involving A330 speeds and landing gear was, for Ms Anning, an issue of real concern for the premature nature in which the issue had been reported to Flight Operations and the Flight Department, when for Ms Anning, information at hand had not come from a valid source and the Safety Department had no facts yet as to an unsubstantiated incident.

[13] But Ms Atkinson, without referring the matter within Ms Anning’s team, had precipitately asked a named flight operations pilot manager to send a ‘message to A330 air crew’ about these issues. I give that example and make the more general observation that in a case said to be in an important respect deficient in specificity, I will attempt to provide examples of the parties’ issues that were recorded within the case. There is almost always opposition to the fact of or interpretation of these issues. That A330 landing gear would be, one expects, a prime example of that.

[14] Ms Atkinson’s responsive evidence was to entirely disagree with Ms Anning’s approach and to not resile from her call to action - that is, Ms Atkinson’s call to action. Ms Atkinson’s position as to the A330 landing gear came close to her declaring the matter as being of an urgent or emergent operational nature. It is clear there was a professional and personal divide between the two. I will not repeat the litany of imperfections and disloyalty each declared for the other. For Ms Atkinson such matters existed working parallel with behavioural complaints as to Ms Anning. I am there contrasting those professional matters.

[15] And then behavioural complaints as to Ms Anning; which included an obsessive desire to control Ms Atkinson’s movements and professional dealings; a request for Ms Atkinson to report on a team member who had been the subject of criticism from Ms Anning; complaints as to Mr Hamilton; Mr Redgrove’s fiancée, who was not employed by Virgin; her personal style and manners. Also complained of was the technique in relation to pilot communication, so that ultimately, on Ms Atkinson’s account, she complained of bullying to Mr Chapman and Ms Papandreas after a session with Ms Atkinson, Ms Anning and Mr Chapman had led to Ms Atkinson breaking down. Prior to this, Ms Atkinson’s evidence was that her feelings of antipathy toward Ms Anning were such that the pressure of dealing with Ms Anning was overwhelming and Ms Atkinson felt sick when she saw Ms Anning and, indeed, had vomited in the car park of her home and had gone home on one occasion at Mr Chapman’s direction and had subsequently vomited ‘all afternoon’.

[16] The upshot of these and other complaints, including of unfair criticism from Ms Anning, was in November 2011 to see commenced counselling sessions involving the staff officer Ms Papandreas, as those events were said to have affected Ms Atkinson’s non-working life - her personal life. At the end of September for a period of some weeks Ms Papandreas conducted (with Ms Anning and Ms Atkinson) what were termed mediation sessions over coffee, but as this effort concluded, so did the - in Ms Atkinson’s view - artificially happy visage, the way Ms Anning comported herself. In Ms Anning’s account, (for example at paragraph 39 of Exhibit V10), the theme of Ms Atkinson’s complaint as to Ms Anning was the applicant’s attitude when Ms Atkinson had dealings with people beyond the team and without advising Ms Anning or including Ms Anning.

[17] From Ms Anning’s account there is, unsurprisingly, a parallel package of events and interpretations hinting at Ms Atkinson’s disloyalty and careful ingratiation with team members and other Virgin staff, all of which isolated Ms Anning from matters clearly within her bailiwick. A clear example from Ms Anning’s evidence (and that of Ms Atkinson) was that their several attempts to discuss their relationship were spectacularly unsuccessful, with both complaining at various times to Mr Chapman. For Ms Anning this built upon a situation in mid-2011 when safety general manager Aggs and systems manager Chapman had been gravely concerned for the effect upon the department of complaints as to Ms Atkinson’s conduct and performance, particularly in her approach to pilots, said by Ms Anning to be rude and persecutory.

[18] It is this poor working relationship that is said by each of the main protagonists to be almost entirely referable to the other. Ms Anning’s account does provide for several instances when there was a misguided basis for Ms Atkinson’s concern over Ms Anning’s treatment of her and that Ms Anning was able to explain the real position and apologise for the misunderstanding. I interpolate to say the ‘lame account’, some imperfectly described draft report, is an example of that. Ms Atkinson’s evidence does not allow for any mutuality, citing the synthetic participation of Ms Anning in Ms Papandreas’ attempts to bring the two together. As 2011 concludes Ms Atkinson and Ms Anning seek the support of the management officers and it is in the final meeting of 9 January 2012 between the two when Ms Atkinson withdraws, distraught and saying, she ‘quit’.

[19] I am simply not going to essay through the theatrics and the detailed scenarios of the various meetings. They are well known to the parties. In Ms Anning’s account, she had Mr Chapman’s support to bring Ms Atkinson to account for her rude behaviour to Ms Anning. And Ms Papandreas, the staff department’s adviser to Mr Agg’s group, had participated with Ms Anning and Mr Chapman in their 4 January meeting where it was determined that, while Ms Atkinson would not be placed on a Personal Improvement Plan, Ms Anning should meet with Ms Atkinson at an early time to advise of Virgin’s performance requirements, complaints as to Ms Atkinson’s conduct and the department’s future expectations.

[20] In Ms Atkinson’s account, upon advice of this meeting she was concerned that her employment might be terminated by Ms Anning and had arranged to see Ms Papandreas privately prior to the meeting with Ms Anning. Ms Atkinson’s evidence was that she discussed alternative positions with Ms Papandreas and reported that she felt she was being bullied. For Ms Anning’s part, she had requested Ms Papandreas and/or Mr Chapman to accompany her to the 9 January meeting, to be told that she should manage the situation herself. As events transpired, the meeting ended when Ms Atkinson abruptly resigned, distraught at Ms Anning’s detailed critique of her work and rebuke for damaging the relationship with pilots and other sections within the Flight Department.

[21] I will not bother detailing the entirely different representations given by Ms Atkinson and Ms Anning for each part of what occurred in that meeting, except to say for Ms Anning, her carefully positive and praising introduction to the appraisal met with Ms Atkinson’s sudden announcement, at the time when Ms Anning had commenced a commentary as to Ms Atkinson’s interpersonal skills, that Ms Atkinson was to leave, that is, she ‘quit’. It followed that Ms Atkinson, very distraught, went to Mr Aggs’ office where he was meeting with Mr Chapman and spoke with them. Ms Atkinson says that when questioned whether: “They had any issues with my performance as the applicant was alleging, they told me that they were extremely happy with the quality of my written work and the depth that I had brought to the team.”

[22] Ms Atkinson complained of bullying to the two managers and spoke to her fellow team members - this is taken from Ms Atkinson’s statement, which is Exhibit V10 - to the effect that: “If ever there was a time to come forward about issues we were having with the applicant, it was now, otherwise I was going to lose my job.”

[23] Events followed rapidly in that while Ms Anning was at a four-day course, her staff spoke individually to Mr Chapman and an investigation into concerns raised was then thought to be necessary. At the same time, at the meeting of 12 January Mr Chapman proffered the opportunity for Ms Anning, of a six-month secondment to Flight Operations in a safety system role, which Ms Anning should consider in the alternative to the review of the team and given that the relationship with Ms Atkinson had broken down. Mr Chapman made it clear that Ms Anning might not like the result of the investigation which would otherwise occur.

[24] It followed that a meeting occurred on 13 January where Ms Anning was told by Mr Chapman that there was to be an inquiry into her behaviour and conduct, but without specific allegations or detail. Shortly thereafter Ms Anning took programmed leave and upon her return from what she describes as a ‘state of torment’, Ms Anning was given a letter; it is termed a ‘notice to show cause’ (Exhibit A1, Statement of Ms Anning, Annexure M-LA2). That occurred on 31 January, with Ms Anning’s APESMA legal representative present, the letter containing 10 generalised complaints or allegations into Ms Anning’s behaviour and conduct. No detail was given of who specifically had been the subject of the behaviour complained of.

[25] I remind myself that this is in respect of a staff of some five full-time officers but with a few part-time officers. When Ms Anning sought greater specificity it was refused by Ms Papandreas and Mr Chapman. When it was revealed that Ms Papandreas and Mr Chapman had conducted the inquiry or investigation, Ms Anning’s representative queried whether Ms Papandreas and Mr Chapman could be considered impartial, considering that they had been privy to the issues adverted to above and had given advice to Ms Anning. On 7 February a letter giving fuller descriptions of the behaviour complained of was sent to Ms Anning and to her APESMA representatives (Exhibit A1, Annexure M-LA4). While it essays more generally into the meaning of each of the complaints, it does not give chapter and verse about who said what on a certain day.

[26] Ms Anning’s case centres in large part on the pre-judgement of Virgin and critically, that without knowing who was making what specific allegation, Ms Anning was unable to fully or effectively rebut the charges against her. For Virgin it is said to be unnecessary to provide the degree of specificity demanded by Ms Anning provided that the applicant be fully aware of the allegations being made against her. I was taken to authority in this regard. Again, I do not know that it is necessary to repeat it. I have given it consideration.

[27] Particular reliance was placed for Virgin upon the comments given by Sams DP in Lynette Steele v Coffs Ex-Services Memorial and Sporting Club Ltd [2011] FWA 2012 which provides it is adequate for an employee to be provided with sufficient information to understand the nature and specifics of the allegations of which they are accused and if the information is sufficient for the employee to prepare and articulate a response to the allegation. It seems to me that the Deputy President’s decision does not necessarily support the position of Virgin, in that one asks, can it be said that the specifics of the allegations were put before Ms Anning such that she might prepare and articulate a response to the allegations?

[28] In my view where an employer relies upon behavioural excesses over a lengthy period, and particularly when contemporaneously no issue has been taken with the conduct, there does need to be a sufficiency of detail to permit the employee to recall the event or the continuum of events and recall their reaction or actions or participative role, if any, in the events in question. This will be particularly so where one is required to respond to the events of, in this case, the previous year. Not all are blessed with excellent recollections and experience in hearing cases reflects the frequency of occasion when witnesses thought to be entirely reliable display quite disparate recollections.

[29] A principal remedy to ward off a failure or incapacity of a person to be responsive to a charge is to provide some detail of time and place. In this case Virgin declined to do so, citing a concern over possible further actions by Ms Anning. This submission was put in these terms - and I am quoting from the written final submissions of Virgin: “The respondent has given a genuine and legitimate explanation for not providing additional detail regarding the allegations to the applicant, namely to protect employees who had given evidence against the applicant and who had allegedly experienced bullying by her in the event that the applicant continued in the role.”

[30] The argument seems to be that were the necessary findings to be made that Ms Anning ought to return to her position, and that she returned by way of an order of this institution, then the staff would be at risk of retribution from a vengeful colleague. It strikes me that this would be an argument against the primary remedy, reinstatement, applying in very many cases because even when considered just and required in the circumstances of the case where allegations were made, the fact of the allegations being found to be groundless or insufficient to support the termination is disregarded for an apprehension that an exonerated employee would behave in a retributive fashion.

[31] Virgin's further argument, which I consider must have some appeal, is that in this case any further detail of the behaviour complained of would have been to no effect because Ms Anning has denied all the asserted bad behaviour, if I could use that short description. In this regard the names and dates are said to be irrelevant. It is also necessary to add, in my view, that whatever position one takes in the particularist debate - that is as to what extent particulars should be provided - when the matter comes for arbitration it is for the member sitting, having heard the cases advanced by each side, and in this case much evidence expertly teased out and in particularly lengthy cross-examinations, to make the necessary findings as a matter of jurisdictional fact as to whether some questioned activity or act was engaged in, whether it did occur. One then considers and determines whether it was of a certain character; whether it was such as to provide a valid reason; and whether it can be given various titles or degrees of seriousness.

[32] I have commenced this part of my consideration mindful of Ms Anning’s evidence that she conducted herself - with perhaps a single book-slamming exception explained by her righteous indignation that the event causing such annoyance had occurred - in a proper way in relation to her manner and volume of speech and tone, intonation and timbre of voice at work as she had used when in the box. Ms Anning simply denied the types of behaviours put to her. I have also noted that Ms Anning’s evidence includes that on 22 August 2011, upon return from her leave, Mr Chapman had spoken to Ms Anning as a result of some of the team members having expressed some concerns, in Ms Anning’s understanding, about Ms Anning’s management style.

[33] While lacking detail of - as Ms Anning says, "Exactly what aspect of my management had caused concern," Ms Anning resolved to communicate by email, to choose her words carefully, and to keep an up-beat and encouraging manner at meetings. So that is Ms Anning’s position as at August 2011. Ms Anning’s evidence was that she was understandably surprised and disappointed with Mr Chapman’s approach. Against the applicant’s absolute denial of bad or overbearing, loud, domineering, boorish and disloyal behaviours is the evidence of her staff. For the moment I have put Ms Atkinson’s evidence to one side, so taken is she by antipathy and dislike for Ms Anning.

[34] I am faced with strong evidence of bad behaviour and must come to a view on the balance of probability whether it occurred or not. It is this behaviour - that is the behaviour complained of by the staff - which is Virgin’s reason for termination. I should make it clear that I have had regard, in addition to the viva voce evidence, for the written duplicate notes taken by Ms Papandreas and Mr Chapman during their interviews with the Virgin staff.

[35] There is evidence of some diminished emphasis in comparison with the responses given in the notes and in the box. Some time has passed, of course, and there is discernible what is likely to be a natural reticence - other than by Ms Atkinson - to delve into the details of what was or is likely to have been a difficult period for all concerned. I am going to deal with some of the particular evidence given by the staff of Ms Anning.

[36] Mr Robertson’s evidence was that even when asked by Ms Papandreas he did not wish to become involved, and his evidence is nevertheless not complimentary to Ms Anning. Not all of his observations are relevant to my purpose; some, though, are.

[37] Mr Robertson averred that Ms Anning’s behaviour was erratic, that there was no - in his expression - ‘initial thought process’ - that is a commentary about Ms Anning’s preparedness to venture her thoughts at an early stage in a conversation; and that there was inappropriate behaviour towards Ms Atkinson, Ms Fitzpatrick and Ms Minturn, that behaviour was said to be unprofessional; that Ms Anning gave no thought as to who was talking or how she was approaching people; that Ms Anning had spoken to Mr Robertson - this is more direct - in a fashion that was very abrupt and humiliating. And that was when Mr Robertson had intervened in the heated argument which had occurred between Ms Anning and Mr Hamilton.

[38] I do not venture into that area. I am dealing with Mr Robertson’s evidence that he was upset by Ms Anning’s response. Mr Robertson's further evidence was that Ms Anning was responsible for the noise in the office and yet a principal complainant when there was noise. Mr Robertson’s reaction to the tensions apparent in the office was to wear headphones. Mr Robertson’s interview - and this is a reference now to the notes - reflects his view that staff had been ignored in response to questions; his opinion was not valued; that Ms Anning’s verbal manner was intimidatory and ‘enforceful’ (sic); that staff were very uncomfortable in approaching Ms Anning as she was dismissive - that was in relation to flight data matters; and that there were no constructive team discussions able to occur when Ms Anning was in the room.

[39] Mr Redgrove’s evidence was that Ms Anning’s behaviours reflected the considerable stress involved in the department’s work and that Ms Anning’s behaviours included huffing and puffing in frustration; groaning; banging her computer mouse on the desk; using headphones rather than develop interpersonal relationships with the team and advising the staff not to directly discuss matters with Mr Chapman. Ms Anning expressed disregard for some Virgin procedures and when engaging in peer reviews, did so in a way that lacked substance. It will be seen that these are not all behavioural matters.

[40] The next instance is an example of a behavioural matter: that Ms Anning often belittled other members’ work; waved her arms in the air unnecessarily; engaged in loud and boisterous behaviour; spoke over people; was opinionated and quick to express her view; would storm off if Ms Anning did not like the response of someone with whom she was having a discussion; did often bang her fists on the table; and upbraided others for noise, and yet made much noise. Ms Anning was said by Mr Redgrove to have directed the staff not to speak with Mr Hamilton over airworthiness issues, making it difficult for Mr Redgrove to carry out his role. That is from Exhibit V13 at paragraph 23.

[41] This conduct was said to make things very difficult on a daily basis. The daily Operational Risk Classification meetings, where Ms Anning would often raise her voice, lean forward and point aggressively, were said to be very unhelpful. Ms Anning was said at those meetings to talk over the other contributors, all with the result that the meetings did not come to consensus views. Mr Redgrove continued finally that Ms Anning had requested copies of all emails as part of a reaction to Ms Atkinson’s independence. These factors combined in Mr Redgrove’s August 2011 discussion with Mr Chapman, bringing these matters to notice.

[42] Mr Redgrove’s evidence was that there was a slight improvement in Ms Anning’s behaviour but that after a few weeks things returned to normal, with specifics being loud behaviour, as to Ms Atkinson, criticism of Ms Atkinson’s report, and Ms Anning loudly and publically discussing someone's pregnancy-related absence from work, until being requested forcefully by a woman in the department that Ms Anning and her interlocutor move to another area. As I have said earlier, I have also had regard, other than for the viva voce evidence, for the material set out in the separate notes attached to Ms Papandreas’ and Mr Chapman’s investigation reports and in a general sense I have sufficient confidence in those reports to pay them some regard.

[43] Mr Chapman’s notes - this is at LP5 of Ms Papandreas’ statement, Exhibit V14 - record Mr Redgrove’s comments as to Ms Anning having or exhibiting a domineering demeanour, with Mr Redgrove too scared to challenge her view; of Ms Anning being short and snappy and dismissive as to some given situations; exhibiting passive-aggressive feedback; withholding information from the team; being loud; hinting or commenting upon the performance of others; and as to her literal behaviour, throwing her arms in the air, and being dismissive of suggestions.

[44] I turn to Mr Hamilton. Mr Hamilton gave sparing evidence in his written statement and in the box and appeared unable to recollect issues of concern with any specificity. This was very curious, given the detailed critique given by Mr Hamilton to the investigators, when Mr Hamilton spoke of taking the problems arising from the work atmosphere home and that there was a caustic, corrosive feeling, and that Ms Anning was ‘always difficult’. I will not give further detail, there is more in the material. It has been my intention to indicate what in my understanding formed the basis of Virgin’s decision and what lay as grounding the descriptors given in the letter following the show cause letter.

[45] It must be noted that not all staff interviewed reported similar events and behaviours; and for example, one staff member highlighted Ms Atkinson being - and the phrase used was “really rude to Ms Anning”.

[46] I must reach conclusions in applying Part 3.2 of the Act. First I must note that I have concluded that there does exist jurisdiction, as required by s.382 and thereafter, as Ms Anning is, in my view, within the scope of the section and the annual rate of earnings is less than the high income threshold. Section 384 is therefore satisfied. Also at arbitration by virtue of the extent of the disagreed matters it was in my view necessary to conduct a hearing.

[47] I will say something in relation to the Virgin policies. There exist a plethora of policies relevant to behavioural matters at Virgin and I found Ms Anning to have been made aware of them. There is evidence of Ms Anning having been included in some detailed training in that regard. These are the No Tolerance to Bullying, Virgin’s Code of Conduct, and a policy called Keeping Our Workplace Fair. Ms Anning was terminated for having breached these policies and paid four weeks’ notice.

[48] Was there a valid reason? In my view there will be a valid reason if any significant part of these reports as to conduct and supervisorial behaviours, demeanour and style are found to be soundly based. I must, in my view, come to a conclusion as to, of the one part, Ms Anning’s denial of such excessive or unpleasant or non-inclusive behaviours; and of the other, Virgin’s satisfaction that they are soundly based. I make the assessment on the evidence before me. I wish to make it quite clear that I am not approaching the required judgment from the point of view of coming to a conclusion as to whether it was reasonably open to Virgin to come to the view that it did.

[49] My consideration is as to whether on the balance of probability these events and behaviours and working methods - I am using some shorthand terms there - occurred or were adopted. I am not deciding some other question, for example as I have just said, whether it was reasonably open to the employer to reach the view it did.

[50] I have been unable to accept Ms Anning’s position that with one or two minor exceptions, the events and behaviours simply did not occur. I have concluded that the depiction of loud, overly-demonstrative, rude and frequently domineering behaviour did occur. I have reached this conclusion on the balance of probability having heard the evidence of Mr Robertson, Mr Redgrove and Ms Atkinson.

[51] I have not been inclined to accept all of Ms Atkinson’s evidence as it suffers from a lack of objectivity and is informed so much by the animus Ms Atkinson felt for - and seems to continue to feel for Ms Anning. That is not to say, though, that I have discounted all of Ms Atkinson’s evidence where it is corroborated by the other witnesses. I felt the behaviour to have been very serious, not only for its overt unpleasantness, but because it was so inimical to the collegiate, collaborative ethos which, within such a small department, is likely to - dealing as it does with such an important public purpose - be so important.

[52] I have found that there was a valid reason relating to Ms Anning’s conduct. And as to the bracketed note at s.387(a), perhaps I will read s.387(a): “In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, Fair Work Australia 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).”

[53] I have noted and accepted that there is in the material and evidence reflection of the effect on employees on their home and family life, just as I have accepted the effect of some of Virgin’s methods impacted very severely on Ms Anning’s life; and I would instance being sent on leave and suffering, in her expression, a period of torment. That is because the investigation was underway and Ms Anning was elsewhere.

[54] Having accepted the evidence of the employees, I found that the behaviour of the sort I have sought to describe generally, with no great desire to particularise, did occur. I find that there was a valid reason relating to Ms Anning’s conduct, and as to the bracketed note (the effect on the safety and welfare of other employees), as I have just said. Was Ms Anning notified of the reason? That is a s.387(b) point. I paid close attention to Ms Anthony’s cogently argued case for the negative; that Virgin, by its refusal to name names and provide identification and better particulars of the staff members complaining, was quite unfair and prejudiced Ms Anning’s capacity to respond. It seems to me that there is a basis for such an argument and Virgin’s principal ground for denying such detail, I dealt with earlier, that an exonerated Ms Anning’s return to the workplace would visit some reprisal on the staff, is, in my view, specious.

[55] Ultimately I have concluded that by the more detailed exposition provided to Ms Anning on 7 February in the face of APESMA’s 31 January correspondence, it can be said that a sufficient description was provided to Ms Anning of the matters, the essence of the behaviour complained of. This is particularly so of the serious charges of bullying, harassing behaviour, and the complaint of an aggressive and intimidating manner. I have concluded that given the year-long employment and Ms Anning’s earlier caution by Mr Chapman that Ms Anning should address her behaviour and that there was staff disquiet, that Ms Anning was in a position to understand the issues and matters complained of and reply - and it is the case of course, as I have already pointed out, that Ms Anning’s response was, in the broadest to deny - other than the book-slamming and ‘lame report’ - every single matter.

[56] This is not a case where there are shades of grey or debate about meaning or nuance; in Ms Anning’s case these sort of behaviours simply did not occur, and I have found that they did occur. I have to consider whether Ms Anning was given an opportunity to respond. As was made clear during the hearing, there must be a real doubt as to whether Virgin had come to a concluded view by the time the ‘show cause’ letter was sent. Certainly it can be read in that fashion. I have very seriously considered Mr Chapman’s evidence, that he had not made up his mind and that the decision was made later. One appreciates that it was made in concert with a number of other Virgin officers.

[57] I have concluded that Ms Anning’s blanket denial was considered and that it was disregarded by Virgin as fortifying the view already formulated by Virgin that Ms Anning had engaged in the conduct and that reasons relating to her conduct, which had already crystallised, were able to be confirmed. Procedural deficits, as they may exist in this case, do not substitute for the conclusions which on the evidence must be reached and have been reached. Having said that, however, it would have been far preferable for the letter called a ‘show cause’ letter to have set out the matters in the mind of the employer with greater particularity and, in an open way, to have sought Ms Anning’s detailed response.

[58] As to s.387(d), there was no unreasonable refusal. That is the representative point. As to s.387(c), I have considered that while not warned, Ms Anning had had the concerns of the staff, as I have already mentioned, brought to her notice by Mr Chapman, her manager, in August 2011. Section 387(f) I think is to no effect. As to s.387(h), there are several matters which I have taken into account because it simply is not possible to hear the evidence in this case and not have some real regret as to the way in which events transpired. In my view the emerging situation which arose on 9 January between Ms Anning and Ms Atkinson was entirely avoidable and should not have occurred.

[59] Ms Anning has in some large degree paid a price for the view of Ms Papandreas and Mr Chapman that, given the background between the two, Ms Anning should for some reason meet alone with Ms Atkinson to conduct the appraisal of Ms Atkinson. It is not simply a matter of regret expressed subjectively on my part, however. After all, Ms Anning is being criticised for her managerial performance. But the issue is murky by reason of Ms Anning’s contemporaneous dealings with Ms Papandreas and Mr Chapman as to Ms Atkinson’s poor performance to the extent that on balance - on fine balance - it had been decided by the trio not to place Ms Atkinson on a Personal Improvement Plan.

[60] It is abundantly clear in my view that Ms Anning, on any view, required support from Mr Chapman and possibly Ms Papandreas, to oversee the meeting and let Ms Atkinson discuss and know of the division’s expectations of her. I am also conscious that Ms Atkinson had on that very day spoken with Ms Papandreas and made complaints as to Ms Anning. This goes to the strong argument of Ms Anthony as to the lack of impartiality of Mr Chapman and Ms Papandreas. They went into the witness box and I have considered their evidence. Ultimately consideration of what other courses might have occurred is not what the case is about. I have made the necessary finding set out above.

[61] It is not easy to understand why Mr Chapman did not discuss these issues with Ms Anning, and possibly with Mr Aggs, and take the necessary managerial steps, including an early, open discussion of the secondment idea suggested by Mr Chapman, to give Ms Anning the opportunity to consider it before events took their further course. Were the case centred on these aspects alone, the result may well be different; that different conclusions would arise. I have, however, had to review - and I do so without concern - the behaviours that occurred during the period of Ms Anning’s employment. Having found them to have existed as described, I have concluded that they did warrant termination and as I have outlined above according to the statutory criteria, they did constitute a valid reason.

[62] I dismiss the application. An order to that effect will issue shortly. I now adjourn.”

[63] An order to that effect is found in PR529729 dated 5 October 2012.

COMMISSIONER

Appearances:

M Anthony, legal counsel, of The Association of Professional Engineers,

Scientists and Managers, Australia for the applicant.

K Garner, of counsel, for Virgin Australia Airlines Pty Ltd.

Hearing details:

2012.

Brisbane:

July 10, 11;

September 12, 13, 14, 17, 18.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR529728>