Mirella Savinelli v Alfred Health T/A Caulfield General Medical Centre
[2011] FWA 4327
•7 JULY 2011
Note: An appeal pursuant to s.604 (C2011/5224) was lodged against this decision - refer to Full Bench decision dated 24 October 2011 [[2011] FWAFB 7280] for result of appeal.
[2011] FWA 4327 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mirella Savinelli
v
Alfred Health T/A Caulfield General Medical Centre
(U2010/15109)
DEPUTY PRESIDENT IVES | MELBOURNE, 7 JULY 2011 |
Termination of employment.
[1] This decision relates to an application, pursuant to s.394 of the Fair Work Act 2009 (the Act), by Ms M. Savinelli (the Applicant) alleging that the termination of her employment on 2 December 2010 by Alfred Health T/A Caulfield General Medical Centre (the Respondent) was unfair within the meaning of s.385 of the Act.
[2] The matter proceeded by way of hearing on 8 and 9 June 2011.
[3] Evidence, both written and oral, was adduced from the following persons:
- The Applicant;
- Ms M. Donald, Workforce Manager for the Respondent;
- Ms M. Cavill, Payroll Officer for the Respondent;
- Ms R. Sansom, Payroll Clerk for the Respondent;
- Mr R. Di Censo, Payroll Manager for the Respondent.
The Background
[4] The Applicant commenced employment as a Payroll Officer with the Respondent on 6 October 2008 and ceased employment on 2 December 2010.
[5] At the time of the termination of her employment the Applicant was pregnant, had advised the Respondent of such and would, potentially, at a later date have proceeded on parental leave.
[6] During the afternoon of 18 November 2010 Ms Sansom and Ms Cavill had a conversation which included the term ‘maternity leave’, albeit not referring to the Applicant, in what was claimed as within hearing range of the Applicant. 1
[7] Later in the afternoon of 18 November 2010, Ms Cavill was struck by the Applicant. I will hereinafter refer to this as the Incident.
[8] Ms Cavill claimed the blow was with an elbow to her back. 2 Further, it was said to be both painful and deliberate.3
[9] The Applicant conceded striking Ms Cavill but claimed the circumstances were different and that it was accidental.
[10] Subsequent to the Incident Ms Cavill left work as, she states, she needed to pick up her grandchildren but, becoming ‘increasingly upset at what had happened’, 4 returned to work and reported the incident to the Payroll Manager, Mr Di Censo.
[11] Immediately thereafter Mr Di Censo convened a meeting that was attended by both Ms Cavill and the Applicant.
[12] At the meeting the Applicant and Ms Cavill provided different accounts of the Incident and Mr Di Censo ultimately reported it to Ms Donald. Ms Donald subsequently suspended the Applicant on pay while the matter was to be investigated.
[13] On 19 November 2010 Ms Donald wrote to the Applicant in the following terms:
‘Dear Mirella,
Notice of disciplinary meeting:
Following on from the discussion we had yesterday afternoon, and the conversation you had with your Manager Ralph Di Censo prior to that, you are required to attend a meeting to discuss the following matter of alleged serious and wilful misconduct:
• On 18 November 2010 you breached the Code of Conduct and the law when you physically assaulted a colleague.
Accordingly we must consider disciplinary action which result [sic] in the termination of your employment. Before we make that decision, we wish to provide you with an opportunity to raise any other matters you think are relevant, and to show cause why your employment should not be terminated.
I have arranged a further meeting to discuss these matters and answer any questions you may have. This meeting will be with myself and Mark Quirk, Executive Director of Workforce, at 10am on Monday 22 November 2010 in the Workforce (HR) interview room at Caulfield.
You can bring a support person if you wish. Please note that if you choose not to attend this meeting, or provide a written response to us by close of business on Monday 22 November 2010, we must consider an appropriate course of action.
I note that when we spoke yesterday you were in good health, however you told me that you would be off sick today. We will require a medical certificate stating that you were medically unfit to attend work for the entire day today. As stated yesterday you are formally suspended from work following your sick day, on full pay until further notice. Please do not attend work prior to our meeting on Monday.
Separate to this process, a formal complaint may be submitted to the Police, in which case criminal charges may be made.
If you need to contact me my number is [telephone number supplied].
Yours sincerely
Michele Donald
Workforce Manager’ 5
[14] A further meeting was convened on 25 November 2010. The Applicant attended with her husband, Mr Coello, as her support person. At the meeting the Applicant was invited to discuss the Incident and to respond to the allegation.
[15] Ms Donald wrote again to the Applicant in a letter dated 2 December 2010 terminating her employment with the Respondent:
‘Dear Mirella,
Outcome of Show Cause Meeting
On Thursday 25 November I met with you at 4.30pm. Ralph Di Censo was also present in Mark Quirk’s absence, and you had your husband present as a support person. The purpose of the meeting was to give you a further opportunity to show cause why your employment should not be terminated.
The allegations of Serious Misconduct including details of particular incidents were discussed.
I have taken in to [sic] account your response and I have determined that the allegations were substantiated.
After our meeting a submission about this matter was presented to the Executive Director of Human Resources, who in turn tabled it with the Chief Executive Officer for consideration.
Today I met with you, your husband and Mark Quirk to discuss the outcome. I confirm in writing the final determination was to terminate your employment, effective today.
Any outstanding accruals that you have will be paid in the next pay cycle and you will be provided with a separation certificate and a certificate of service.
If you have any questions please contact me on [telephone number supplied].
Yours sincerely,
Michele Donald
Workforce Manager Caulfield & Sandringham Hospitals’ 6
Credibility Issues
[16] The accounts of the Applicant and Ms Cavill as to the circumstances of the Incident differ markedly. It is not possible to accept one account without entirely rejecting the other.
[17] The Applicant claims she accidently bumped her right shoulder into the front of Ms Cavill’s right shoulder when she turned in Ms Cavill’s direction as Ms Cavill was passing. 7
[18] Ms Cavill claims that the Applicant struck her in the back, likely with her elbow as Ms Cavill was walking through the office. She claims to have seen the Applicant lowering her arm and smiling at her after the blow was struck. 8
[19] In Ms Cavill’s account it would have been necessary for the Applicant to move, presumably with intent, to the location in the office where the incident occurred.
[20] The Applicant disputes the location claimed by Ms Cavill. There are no third party witness accounts of the Incident.
[21] In the circumstances, an assessment of the credibility of the protagonists, as well as that of the others from whom evidence was adduced, is instrumental to a proper consideration and determination of this matter.
[22] To that end it is necessary to go to certain aspects of the evidence to consider whether reasonable conclusions may be drawn as to which of the protagonists is to be believed.
[23] In the context of the investigation of the incident, Ms Cavill, Ms Donald and Mr Di Censo claimed that the Applicant, at various times, stated that, ‘they should be apologising to me’ or words to that effect. 9
[24] The Applicant denies ever saying this or anything to similar effect.
[25] If it was said it appears consistent with Ms Cavill’s claim that during the 18 November 2010 meeting, the Applicant stated that Ms Cavill ‘had been walking down the corridor earlier in the day with Ruth Sansom and that we had been laughing and speaking about maternity leave and being disrespectful to her.’ 10
[26] Despite Ms Sansom’s evidence about the likelihood of the Applicant having overheard the conversation between Ms Cavill and herself, the Applicant denied both making the comment (above) attributed to her by Ms Cavill and having overheard the conversation. 11
[27] Mr Di Censo provided the following, apparently contemporaneous or near contemporaneous, account of the 18 November 2010 meeting:
‘To Staff Relations: re Incident with Mirella Savinelli
On thursday 18 November 2010 at about 4 pm I was approached in my office by Mary Cavill, who was very distressed. I asked what was the problem, Mary informed me that one of the payoffice staff members had hit her. I calmed her down to find out what had occurred. Mary stated that Mirella Savinelli had elbowed her in the back in a forceful way as she was passing Mirella area [sic] after meeting with Ruth in her office. The blow was severe, when Mary turned around Mirella arm [sic] was being lowered and was smiling.
Mary said there was no apology from Mirella if it had been an accident, and Mary walked away.
On hearing this I asked Mary if I could call Mirella into the office with us. I approached Mirella quietly to come to my office, she seemed to be taking her time, so I asked a second time and she did. I asked her to sit down, at which time I explained to her what Mary had reported.
I gave her the option to give her side of the story, but she went on about other things.
I asked her, “did you hit Mary” and she said “yes I did”. I asked “was it an accident” and she said “yes”.
I suggested to Mariella [sic] to apologise to Mary, be it that the incident was an accidental [sic] or for any other reason. Mirella refused to apologise and kept on raving on that everyone should apologise to her because she was pregnant. She kept accusing me of yelling at her, which I was not, but more a raised voice as she did not want to answer anything about this issue and kept accusing me and everyone else about her problems.
Again and again she avoided the chance to apologise, at this time Mary had had enough of the aggression and needed to leave to go home.
I reminded her that this is a very serious matter. I said “you hit Mary and hurt her”. Mirella turned to Mary and told her that she “better go to Hospital”.
I asked Mirella to stay in my office for further discussion, but within a very short time burst out [sic] of my office and went back to her desk to pack up.
I then went to call Michele Donald to come to my office, while I was explaining the incident, Mirella was leaving the office to go home, Michele then followed to talk to her.
Michele come [sic] back to my office and informed me that she had told Mirella that she was suspended while the incident was being investigated.’ 12
[28] Ms Cavill, presumably relating to the period of time she was present at the meeting, provides signatory support for the veracity of content of the above account. 13
[29] For completeness I include the substance of Ms Cavill’s, apparently contemporaneous or near contemporaneous, account of the Incident and 18 November 2010 meeting:
‘Incident with Mirella Savinelli
18.11.2010 at 4pm
At 4pm on the 18.11.2010 while leaving Ruth’s office to go home. As I was walking across the room to go thru [sic] the other door, I was hit in the back by Mirella, I turned around to see Mirella lowing [sic] her arm and looking straight ahead and smiling with that she walked off into the printer room, I was in stock [sic] at first and just wanted to go home, but as I started driving home, I was upset so I returned to work.
I went to Ralph’s office and told him that Mirella had hit me in the back, when I was leaving Ruth’s office at 4 pm. He asked me if he could ask Mirella to come into the office with me there.
He asked Mirella to come into the office and said that I had complained that she had hit me, Ralph asked her if she had hit and she replied Yes. He asked her if it was an accident and she said Yes. I said Mirella you cannot hit elbow some one [sic] in the back accidently.
Ralph asked her if it was a accident [sic] did she say sorry, with that Mirella said that she would not say sorry to me, and that Ruth and I had been walking down the corridor earlier laughing and speaking about Maternity leave and being disrespectful straight to her face, I said Mirella, yes Ruth and I were in a good mood and speaking about Maternity leave for an employee, but I did not even look at look, [indistinct] Ralph that everyone in this office needs to apologise to her because everyone disrespects her, and did he get the complaint for her earlier in the week.
Ralph said that we were not speaking about that matter and that she had hit me and hurt me, with that Mirella turned to me and said that if I was hurt I should go to the hospital with that I told Ralph that I had to go and left.’ 14
[30] The Applicant’s account of this meeting differs from that of Ms Cavill and Mr Di Censo in a number of respects. The following exchanges occurred during the cross-examination of the Applicant:
‘[MR HARRINGTON]: Okay. You mentioned that you are pregnant; that, “I am pregnant” - words to that effect. Do you remember saying that to Mr Di Censo?---Yes, I said I was pregnant.
Yes, and - - -?---”Why should I hit her?”
- - - you went on to say everyone else owed you an apology?---No.
All right. Well, I may have misused the words. You made a comment about other people needing to apologise to you?---I didn’t say that.
So Mr Di Censo is not telling the truth about that. Is that what you say?---Yes, I’m saying that.
Mr Di Censo asked you directly, “Did you hit Mary”?---Yes, he asked me.
And you responded, “Yes, I did”?---No. I said, “No.”
Well you’ve said that on a few occasions. Mr Di Censo is going to come and give evidence and say you said, “Yes, I did.” Mary is coming to give evidence, because she was there too remember, wasn’t she- - -?---Yes, She was there.
- - - and she said you said, “Yes, I did”?---I said - when he asked me, “Did you hit her?” I said, “No,” and then (indistinct) ...
...
Just before Mary left, Ralph Di Censo turned to you and said, “You hit Mary and hurt her.” Do you remember he said that to you?---He said, “Did you hit Mary?
No, I’m saying - not “did”. Right near the end, before Mary left, “You hit Mary and hurt her.” Do you remember him saying that to you?---No, he didn’t - - -
I put to you he said, “You hit Mary and hurt her,” and you turned, looked at Mary an said, “Well, you’d better go to hospital”?---I said - I suggest to Mary, “Why we don’t go to Caulfield doctor,” which is next door, “and just have a look if you have any mark or any bruise on your shoulder,” but she said, “I have to go.”
Ms Savinelli - - -?---And Ralph let Mary go.
- - - you said, “You’d better go to hospital”?---I said, “We should go to the Caulfield hospital. Yes, I said hospital - Caulfield hospital.
I’m using a very particular set of words?---Okay - Caulfield.
You looked at her. “Better go to hospital then,” is what you said?---No. I said Caulfield hospital.” 15
[31] During cross-examination by Mr Coello, Ms Cavill stated:
‘[MR COELLO]: Is true that Mirella ask you to go to the doctor, during that meeting?---Go to the doctor? At one stage in the meeting, when Ralph had called Mirella in, not long before it finished, Ralph was saying to Mirella that he - she needs to understand how serious this is, that you cannot hit people in the workplace, that she hit me and she hurt me. Mirella turned to me and said, “Well, if I hurt you, you’d better go to the doctor.” “Go to the hospital,” sorry, not the doctor. She said, “You’d better go to the hospital.”
Why you didn’t take that advice if you were - as you say, the blow was very hard and painful and also Ralph said that you said it was forceful and severe. You were also wearing a shirt. Why you didn’t do that, take that advice?---Because at that time, when Mirella had said that, it was a very condescending and smart remark to me, like, “If I hurt you, go to the hospital.” With that, I actually picked up my car keys and said, “I have to go, Ralph. I can’t listen to this any more,” and I left.’ 16
[32] In her witness statement the Applicant provides this account of the 18 November 2010 meeting:
‘At approximately 4.20pm Mr. Dicenso,[sic] informed me that Mary had made a complaint that I had hit her. I assumed he was talking about the incident that had just occurred and told Mr. Dicenso [sic] that contact was accidental.
Mr. Dicenso [sic] demanded that I apologise to Mary. I suggested that Mary and I should apologise to each other for the accident, but he disagreed. He then ordered Mary to leave the office and for me to stay with him.’ 17
[33] Mr Di Censo denies that the suggestion was made by the Applicant that she and Ms Cavill should apologise to each other. 18
[34] There is evidence that prior to the Incident there had not been problems or animosity between Ms Cavill and the Applicant. 19 That evidence is not contested.
[35] Evidence from Ms Cavill about the Incident and its immediate aftermath when she left work and then returned includes:
‘THE DEPUTY PRESIDENT: I have the diagram in front of me?---Okay. So where Ruth’s office is, I was leaving. As I stepped out of there, I looked over and - because you can see Mirella’s desk right there, and she was sitting down and, as I stepped into the room, she stood up. I started to walk out of the room and when I got where this pencilled X is, that’s when I felt a blow on my back and then I spun around and Mirella was lowering her arm like that, and she just like looked past me and smiled and just walked off. That’s what happened. It’s as simple as that really.
...
[MR HARRINGTON]: And you came back. Can you tell us what was going on in your head between leaving the area where the incident occurred and the fact that you turned your car around and came back?---Well, I left work because it - I remember it’s a Thursday 4 o’clock. I have to pick my grandchildren up. When Mirella hit me and walked off, I just like - I suppose I was in a little bit of shock. I just, like “I have to go, I have to go. What am I going to do? Just let it go, Mary.” I said, “Just let it go. You’ve got to go and get the girls.” So I left. I just went, I left, and then I started to drive down Kooyong Road and I just thought, “This is not right. Why did she hit me?” I didn’t understand why, you know, and “I can’t - I have to say something. I have to. I’m going to be late for the girls, but I’m going.” So I turned the car around and I came back and I went to Ralph’s office and I told him what happened, because I just couldn’t accept that that’s okay.
Could you just finally describe your state of emotions in Ralph’s office when you got back?---When I got into Ralph’s office and he said, “Oh, what are you doing back?” and I just said, you know, “I’m here because Mirella hit me in the back and I don’t know why,” and I actually started to cry, because I felt stupid, I - you know, I was upset because I thought, “Why did she do this to me? I don’t understand why she would do it.”‘ 20
[36] The following description of the Incident is in the Applicant’s sworn statement:
‘On 18 November an incident occurred when I was walking to the printer room at work. At about 4.00pm another employee, Ms Mary Cavill, payroll clerk, and I bumped into each other, meeting shoulder to shoulder. At the time Mary and I looked at each other but neither said anything. We both continued on our way.’ 21
[37] Under cross-examination she responded:
‘[MR HARRINGTON]: Do you say that you connected with Ms Cavill front-on or - did your shoulders hit front-on or did they hit from behind?---At the front. This is my shoulder, Mary’s shoulder. Front.
So I’m just trying to understand, then. On your evidence, if you’re perched over that desk and you turn to your right, and your body motion is swinging around to your right, and Ms Cavill is coming past you, your shoulders are pivoting in the same direction that she’s moving. Do you agree with that?---Yes.
Yes. So it’s not possible, on your version, for the front of your shoulder to hit the front of her shoulder because you’re going in the same direction as you turn away. Do you agree with me that’s just not possible?---Yes, it was in that way. I was here. I just went to the printer room, and she came from here, and we bumped right shoulder against right shoulder.’ 22
[38] I note, at this point, that Counsel for the Respondent submitted, inter alia, as follows in respect of the Applicant’s credibility as a witness:
‘When the applicant sought to demonstrate from the witness box which way she turned from her position, leaning over her desk, she turned and swivelled to her left. On any view, such a blind turn toward the applicant would have caused contact between the applicant’s left shoulder and the front of Ms Cavill’s right shoulder. However, the applicant had earlier given evidence of contact between her right shoulder and Ms Cavill’s right shoulder. That contact may have occurred (but is denied by Ms Cavill) if the applicant had turned/swivelled to her right, as she later claimed in evidence. The Tribunal ought find that:
i. the applicant was inconsistent on a crucial piece of evidence; and
ii. the applicant has invented a version of events to serve her own interests.’ 23
[39] Given the exchange between the Applicant and Counsel during cross-examination of the Applicant 24 it is possible that there is substance to the submission. On balance, however, I decline to place any weight upon this apparently contradictory evidence of the Applicant on the basis that it may well have been a result of confusion or an inadvertent slip in the course of attempting, from the witness box, to provide a demonstration of her movement at the time of the incident.
Credibility conclusions
[40] It will be noted in the evidentiary examples referred to above that accounts provided by Ms Cavill, Ms Donald or Mr Di Censo about what had transpired subsequent to the Incident are, to a certain extent, corroborative.
[41] There are no issues of credit that affect the evidence of Ms Cavill, Ms Donald or Mr Di Censo so to the extent that these accounts do provide evidence that is consonant from one to the other but at odds with the Applicant’s evidence then the weight of evidence is obviously against the Applicant and I reject the Applicant’s account.
[42] Further, in my view, the Applicant’s credibility more generally as a witness is undermined by the corroborative evidence against her.
[43] There is also, in my view, an air of implausibility, if not outright absurdity about any suggestion that Ms Cavill either contrived her version of the Incident or that she may have been sufficiently confused by events to come to the conclusions that she did.
[44] It would be necessary to at least implicitly find in favour of one or the other of the above scenarios, or something similar, if one was to find in favour of the Applicant’s version of the Incident.
[45] On the other hand, in addition to findings in relation to the Applicant’s credit as a witness, there is an obvious rationale associated with finding in favour of Ms Cavill’s version of the Incident which supports such a finding.
[46] The Applicant was the subject of Ms Cavill’s allegation. She was aware of the serious consequences that might flow if the allegation was found to be substantiated. She needed a defence. It appears to me more likely than not that the Applicant fabricated one which, on a comprehensive consideration of relevant evidence and in accordance with its relationship to reality, lacks cogency.
[47] If one accepts, as I do, Ms Cavill’s evidence about the Applicant’s statement in respect of the conversation between Ms Cavill and Ms Sansom then the Applicant also had a motive for the Incident.
[48] For the reasons that I have outlined, where the Applicant’s evidence conflicts with that of Ms Cavill, I prefer that of Ms Cavill.
[49] It follows that I find it more likely than not that the Incident occurred substantially in accordance with the account provided by Ms Cavill and that I reject the Applicant’s account.
[50] Finally, and for the reasons outlined, I prefer the evidence of Ms Donald and Mr Di Censo to that of the Applicant in circumstances where their evidence is in conflict with that of the Applicant.
[51] I am of the view that the Applicant was not a reliable witness and I find accordingly.
Was the termination unfair?
[52] In consideration of s.396 of the Act I make the following findings:
- The Applicant’s application pursuant to s.394 of the Act was made within the prescribed time frame;
- The Applicant fell into the category of employees entitled to the protection of the Act’s unfair dismissal provisions;
- The Small Business Fair Dismissal Code is irrelevant to this proceeding;
- The dismissal of the Applicant was not a case of genuine redundancy.
[53] Considering whether a termination of employment is harsh, unjust or unreasonable, and therefore unfair within the meaning of the Act, requires a consideration of the factors prescribed in s.387 of the Act which are:
‘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.’
[54] In the light of my findings above as to credibility, I find that the Applicant, on 18 November 2010, deliberately struck Ms Cavill in the back and did so in a manner which was unprovoked and which had the consequence of causing Ms Cavill pain. As I have already found, the action by the Applicant occurred, on the balance of probabilities, much in the manner described by Ms Cavill.
[55] The Applicant’s action in striking Ms Cavill is, without doubt, serious and wilful misconduct such as cannot be tolerated in any workplace and hence constitutes a valid reason, within the meaning of the Act, for the termination of the Applicant’s employment.
[56] It is clear from the accounts of the meeting of 18 November 2010 and Ms Donald’s letter (quoted above) of 19 November 2010 that the Applicant was notified, prior to the decision being made to terminate her employment, of the reasons for the termination.
[57] Further, it is clear from Ms Donald’s contemporaneous account of the meeting on 25 November 2010 25 and her 19 November 2010 letter, referred to above, that the Applicant was given an opportunity to respond to the reason.
[58] There was no refusal by the Respondent to allow the Applicant a support person present to assist at discussions in relation to the Incident. In fact the Applicant availed herself of the services of her husband, Mr Coello, at the meeting on 25 November 2010.
[59] Sections 387(e)(f) and (g) of the Act are not relevant to a proper consideration of this matter.
[60] I do, however, consider it relevant to note, in respect of s387(h) of the Act that the Respondent’s efforts to properly investigate the Incident prior to terminating the Applicant’s employment were, in my estimation, less than totally satisfactory.
[61] On his own evidence Mr Di Censo seemed more intent, in his interactions with the Applicant, in extracting an apology from her rather than conducting a full enquiry into what had occurred. What the result would have been had he been successful in having the Applicant apologise is not clear.
[62] Even when Ms Donald became involved and had, quite appropriately, suspended the Applicant on pay there is nothing before me that suggests the Respondent engaged in the sort of forensic investigation into the location, manner and circumstances of the Incident that was obviously carried out once the Applicant had lodged her application pursuant to s.394 of the Act.
[63] Incidents of the type giving rise to this application will fortunately be rare but that does not relieve the Respondent of the obligation, when they do occur, to exercise an appropriate level of investigatory competence in arriving at the decisions that are ultimately made.
[64] Despite what I consider to be the deficiencies of the Respondent’s investigation I do not consider those deficiencies, in the circumstances of this matter, to be so significant as to render the termination of the Applicant’s employment to be unfair.
[65] It is my strong view that had the Respondent reacted to the Incident in an exemplary manner leaving no room for such criticisms as I have made, then the result for the Applicant would have remained the termination of her employment.
Conclusion
[66] I find that the termination of the Applicant’s employment by the Respondent on 2 December 2010 was not harsh, unjust or unreasonable and therefore not unfair within the meaning of the Act.
[67] The Applicant’s application is dismissed.
[68] An order giving effect to this decision will issue as PR511298.
DEPUTY PRESIDENT
Appearances:
J Coello for the Applicant
N Harrington of Counsel for the Respondent
Hearing details:
2011.
Melbourne:
June 8, 9.
1 Exhibit R5, PN 5
2 Exhibit R4, Attachment MC2
3 Exhibit R4, PN 5; Exhibit R4, Attachment MC2
4 Exhibit R4, PN 6
5 Exhibit R3, Attachment MD-1
6 Exhibit R3, Attachment MD-3
7 Exhibit A1, PN 3
8 Exhibit R4, PN 5
9 Exhibit R6, Attachment RDC1; Exhibit R3, Attachment MD2; Exhibit R4, Attachment MC2
10 Exhibit R4, PN 8
11 Transcript, PN 375-376
12 Exhibit R6, Attachment RDC1
13 Ibid.
14 Exhibit R4, Attachment MC2
15 Transcript, PN 466-474, 495-501
16 Transcript, PN 1143-1144
17 Exhibit A1, PN 5, 6
18 Exhibit R6, PN 9
19 Transcript, PN 150-151, 392-394
20 Transcript, PN 1019, 1043-1044
21 Exhibit A1, PN 3
22 Transcript, PN 434-436
23 Outline of Respondent’s closing submissions, PN 3a
24 Transcript, PN 410-423
25 Exhibit R3, Attachment MD2
Printed by authority of the Commonwealth Government Printer
<Price code C, PR511297>
0
0
0