McLean v the Australian Council for Education Research Limited

[2016] FWC 584

[2016] FWC 584

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Sophie McLean
v
The Australian Council for Education Research Limited
(U2015/13319)
VICE PRESIDENT WATSON	MELBOURNE, 3 FEBRUARY 2016

Application for relief from unfair dismissal – Whether termination of employment harsh,

unjust or unreasonable – Whether valid reason for dismissal – Application of company’s

performance management systems – Dismissal related to alleged misconduct – Fair Work

Act, ss. 387 and 394.

[1]        This decision is an amended version of a decision give on transcript on 28 January

2016 in relation to an unfair dismissal application under s.394 of the Fair Work Act 2009 (the

Act) by Sophie McLean in relation to the termination of her employment with The Australian

Council for Education Research Limited (ACER).

[2] The application before the Commission is an application under s.394 of the Act by Ms

McLean, alleging that the termination of her employment by ACER was harsh, unjust, or

unreasonable. The termination was effected by a letter from the Chief Executive Officer of

ACER, Professor Masters, in a letter dated 14 September 2015, which was conveyed to Ms

McLean on or about 16 September 2015. The termination was with immediate effect, but with

payment of two weeks in lieu of notice.

[3]        I found this case disturbing on a number of levels. It appears from the evidence in this

matter that a number of employees, Ms McLean and others who reported to her, have left the

organisation in circumstances in which their performance and fulfilment of their duties

appears to have been a factor. However, it appears that for the most part, the terminations

have not arisen from the application of performance management systems. Those systems, if

they were properly applied, should have been able to deal with the matters that have been the

subject of evidence.

[4]        Instead, there appears to have been terminations by resignations, resignations in

circumstances of difficulty in working in the organisation, workers’ compensation claims

relating to stress, and there is the case before me which is ultimately a termination of Ms

McLean’s employment on the grounds of misconduct.

[5]        There is evidence of the treatment of a number of employees, including of Ms Angela

Di Stefano, having left employment after finding considerable difficulties working in the

organisation under the supervision of Ms McLean.
[2016] FWC 584

[6]        It does concern me that matters that could and should be dealt with by way of

performance management appear to have not been dealt with in that manner to the extent that

is appropriate. It also has created some difficulty for me in categorising the nature of the

behaviour and the nature of the termination that I am required to consider. What I am required

to consider, ultimately, was whether the dismissal of Ms McLean was harsh, unjust, or

unreasonable, and in that regard I am required to take into account the factors set out in s.387

of the Act.

[7]        Those factors, it has been held, require findings on fact, and for each of the findings in

relation to the matters established to be considered as matters of weight in reaching the

ultimate conclusion of whether the termination was harsh, unjust, or unreasonable. In other

words, the answers to those factors are intended to bear upon the determination of the fairness

of the dismissal.

[8]        The first factor I am required to consider is whether there was a valid reason for the

dismissal relating to Ms McLean’s capacity or conduct, including its effect on the safety and

welfare of other employees. The evidence establishes a series of issues over the period of

employment relating to the supervision of employees, and ultimately an investigation

commissioned by ACER by Ms Nixon who enquired into the assessment of Ms McLean’s

behaviour towards employees, and in particular Ms Di Stefano.

[9]        The findings of Ms Nixon in the report were the basis for the decision to dismiss Ms

McLean from her employment. That investigation was thorough. It involved interviews with

various people, including Ms McLean, and involved an assessment of the conduct and the

justification for that conduct in the light of all of those circumstances. That report and Ms

Nixon’s evidence indicated that in some ways Ms McLean had very positive attributes in her

employment, insofar as she was dedicated and a perfectionist in terms of the performance of

her duties.

[10]      However, in relation to the treatment of subordinate employees, the findings were that

the behaviour was condescending, belittling and humiliating. Generally Ms McLean’s

behaviour was controlling, and was a far way from establishing productive and harmonious

relationships with those who reported to her. The relationships were fraught, they ended in

tears or termination or resignation, and they were not conducive to productive operations of

the accounts payable function of ACER.

[11]      The findings of Ms Nixon indicated that the supervisory practices were of such a

nature that they amounted to a breach of the bullying and harassment policy, I use that

shorthand term. The full term is the Discrimination, Harassment, Sexual Harassment,

Victimisation, Bullying and Workplace Violence Policy. But the allegations here that were

essentially found to be established by Ms Nixon was that the behaviour of Ms McLean

towards her subordinates was bullying, and it was harassment, and it amounted to serious

misconduct.

[12]      As I said at the outset, I think there is considerable overlap between notions of

unsatisfactory performance, inappropriate behaviour, and misconduct. But regardless of how

one categorises the factors which led to the termination, I am satisfied, on the totality of the

evidence and in particular the result of the investigation by Ms Nixon, that there was a valid

reason for the dismissal.

[2016] FWC 584

[13]      The reason for dismissal related to Ms McLean’s conduct and her performance in the

role, and it followed a final warning for an unrelated matter, but it also followed a series, over

many years, of counselling and largely informal warnings about the interactions with other

employees. The subordinate employees in particular. The evidence demonstrated that Ms

McLean’s conduct was inappropriate for the position that she held. In all of those

circumstances, as I have said, I find that that there was a valid reason for the dismissal.

[14]      Ms McLean was notified of the factors that gave rise to the investigation, and was

provided with an opportunity to participate in the investigation conducted by Ms Nixon. I find

that paragraph (b) of s.387 was satisfied, by virtue of the opportunity to participate in the

investigation, I also find that Ms McLean was given an opportunity to respond to the reason

relating to her conduct. She was interviewed by Ms Nixon and she had an opportunity to deal

with the matters that were subject to the investigation. I will return later to the process leading

to the termination. I think that is properly considered as a matter under paragraph (h) of s.387.

[15]      There has not been any unreasonable refusal by the employer to allow Ms McLean to

have a support person present to assist at her discussions relating to the dismissal. As I have

said, there appears to be overlap between issues of conduct and performance, and it is possible

that the issues that gave rise, ultimately to the termination, could have been dealt with in

relation to the expectations and performance in the role of the supervisor. They were not done

so in those terms.

[16]      However, the counselling and assistance and training provided to Ms McLean

regarding the proper supervision of employees and their treatment is, nevertheless, a related

factor, and I make the finding that Ms McLean was effectively warned and counselled about

the way she dealt with employees under her supervision during the course of her employment.

I consider that although not treated as a performance-based termination, those factors are

relevant in my consideration and the overall circumstances of this case.

[17]      I do not consider that the size of the employer’s enterprise or any absence of dedicated

human resource management specialists are relevant in this case, as the organisation is a large

one and there are dedicated human resource management specialists available.

[18]      I have mentioned the issue of the circumstances at the point of dismissal in mid-

September of last year. In my view, the process embarked on leaves something to be desired.

It would be normal, in a case where misconduct is found to exist, especially through an

external investigation, that a meeting be convened for the purposes of presenting the results of

the investigation, indicating the view of the employer as to the appropriate disciplinary action,

and providing the employee with an opportunity to have input into the ultimate disciplinary

decision.

[19]      The evidence before me establishes that an attempt to organise a meeting was made,

and it was primarily, perhaps exclusively, attempted by way of email communications with

Ms McLean’s union representative. Looking at those email communications, it does not

appear to me to have been made clear that the purpose of the meeting was to communicate the

findings of the investigation, foreshadow prospective action, and provide an opportunity for

Ms McLean’s input. Rather, it appears that the communications suggest the communication of

an ultimate outcome, and certainly it appears to have been taken that way by Ms McLean’s
[2016] FWC 584

representative and Ms McLean. To that extent I consider that the process is subject to some

legitimate criticism and I have regard to that factor.

[20]      I have had regard to all of the other circumstances, including the length of

employment and the various roles Ms McLean has performed over a lengthy period of

employment. Taking into account the factors that I have mentioned and all of the

circumstances established by the evidence, I have reached the conclusion that the dismissal

was not harsh, unjust, or unreasonable. It follows from that finding that the application by Ms

McLean should be dismissed.

VICE PRESIDENT

Appearances:

Ms S. McLean on her own behalf.

Ms R. Nelson of counsel, with Mr A. Crocker on behalf of ACER.

Hearing details:

2016.

Melbourne.

27 and 28 January.

Final written submissions:

Ms S. McLean on 14 December 2015.

ACER on 20 January 2016.

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