[2020] FWC 3858

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Miss Sarah Addo
v
Safe Places Community Services Ltd
(U2019/8977)

COMMISSIONER SPENCER

BRISBANE, 22 JULY 2020

Application for an unfair dismissal remedy – work with the care of children – cultural issues raised – alleged use of racially divisive language – alleged threat to the welfare of another team member – denial of breach of policy.

INTRODUCTION

[1] An application pursuant to s.394 of the Fair Work Act 2009 (the Act) was made by Ms Sarah Addo (the Applicant), alleging that the termination of her employment from Safe Places Community Services Ltd T/A Safe Places for Children Australia (the Respondent/Employer), was harsh, unjust or unreasonable.

[2] The Applicant was employed by the Respondent on 4 December 2018 until the termination of her employment on 30 July 2019. At the time of her dismissal, the Applicant was employed in the position of Youth Support Worker, based in Far North Queensland, Cairns.

[3] The Respondent stated that Safe Places Community Services is a not-for-profit organisation. The organisation specialises in therapeutic care, for high needs young people who exhibit extreme trauma-based and emotionally disconnected behaviours. During the course of this hearing, reference was made to some children in care, these names by consent have been redacted.

[4] The Respondent’s termination letter stated that the Applicant’s employment was terminated due to two allegations. The alleged breaches of the Respondent’s policies and values; referred to making threats of violence towards a colleague and using racially motivated, divisive statements. The breaches of the particular policies were not specifically addressed with the Applicant at the disciplinary meeting. The Applicant rejected the Respondent’s allegations and sought reinstatement to her position, and wages for the intervening period since her dismissal. The Applicant was provided one week of wages in lieu of notice. She contended she had applied for numerous jobs unsuccessfully and complained that the Respondent had not provided a Statement of Service to her. The Respondent stated that this statement had not been sought.

[5] The matter was listed before a Fair Work Commission conciliator, however it was unable to be resolved.

[6] Directions were issued for the filing of evidence and submissions. The Applicant was represented by Mr Mark Ascione, solicitor of Ascione & Associates Solicitors and Consultants, and the Respondent was represented by Mr Troy McKernan, the Respondent’s Industrial Relations Specialist. The Applicant’s representative was given permission pursuant to s.596 of the Act. Permission was granted as there was complexity to the nature of the complaints, the procedure, and the dismissal. The industrial relations experience of the Respondent’s in-house representative was also taken into account. Mr McKernan was also involved in the termination meeting.

[7] The matter was heard on over two days at the Cairns District Courthouse, Queensland, with further submissions provided on a later date.

[8] Whilst not all the submissions and evidence are referred to in this decision, all of such have been considered.

BACKGROUND

[9] The Respondent set out the reasons for the Applicant’s dismissal in the following letter of termination:

“30 July 2019

Sarah Addo
[address redacted]

Dear Ms. Addo,

Re: Termination of Employment

You were invited to show cause as to why your employment should not be terminated. We provided you with a written show cause notice dated 28 June 2019 outlining the allegations against you.

We have taken into consideration:

• Your written response dated ·1 July 2019

• Your meeting and responses dated 30 July 2019; and

• Your performance history.

We note that you accept the conduct occurred but deny that this is a breach of policy which is a clear indication to us that you are either not aware of safe places policy as required in your contract of employment or you are not acknowledging responsibility for your actions.

Allegation 1

You admitted to giving using [sic] the phrase “sort out” during a telephone conversation with Acting Case Manager Swastika Lai. While you indicate that this was interpreted wrongly and have provided context to the day, the information was interpreted directly by Swastika Lal as a threat to the welfare of another team member. You have failed to understand that you have admitted to the conduct and that this constitutes a breach in the policy. This allegation is substantiated.

Allegation 2

In your written response you admitted to the phrases outlined in the show cause letter, however in the meeting 30 July you changed your response to say, "mainstream people”. You indicated your response that your intent was different, two in attendance of the meeting have provided written statement [sic] alleging that you directed your comments at Jodie Coleman. The Statements I have received from other people in attendance are at odds with your defense (sic) and therefore on the balance of probabilities I accept that the comment was directed at an individual in a derogatory manner. This allegation is substantiated.

Given that we consider that the allegations are substantiated and your performance history, we consider that there has been a loss of trust and confidence that is inconsistent with the continuation of your employment contract. As such we have decided to terminate your employment effective today 30 July 2019. You will be paid one week in lieu of notice along with all accrued leave entitlements.

I would like to remind you that you have access to external support should you wish to use it. The support is provided with Complex Care who can be contacted on (redacted).

Sincerely,

Olivia McHugh

Senior Area Manager Townsville and Cairns”

[10] At the time of her dismissal, the Applicant was subject to a Performance Improvement Plan (PIP).

[11] The termination letter refers to the Applicant’s performance history and the Respondent submits that this was in regard to the two prior matters, as set out in the PIP. On 8 February 2019, the Applicant had been issued and signed a Performance Improvement Plan that addressed breaches of the Respondent’s policies. There was significant disparity between the evidence of the parties in relation to the PIP. The Respondent set out that the implementation of a PIP is equivalent to a warning on the organisation’s disciplinary scale. However, Mr McKernan, representing the Respondent, confirmed that the dismissal was only based on the two allegations set out in the termination letter.

“THE COMMISSIONER: All right, so let's be clear then. So the prior matters in relation to, I think it's Mr Hernandez(?), and the performance improvement, they have no bearing on the dismissal?

MR McKERNAN: No, it's the two allegations, the conduct of allegedly using, "sort out", in a threatening manner, and the alleged conduct in the team meeting.

THE COMMISSIONER: All right, so those issues of the guidance note in relation to the medication, and the other issue being – so the brief guidance that was given to everyone, and the other issue in the performance, being indicating information allegedly to the magistrate in terms of 8 February, they do not form a matter that's relevant to the dismissal?

MR McKERNAN: They weren't used as reasons for the dismissal but that performance improvement plan was still in place. It was in place for twelve months.

THE COMMISSIONER: But that's not a basis for the dismissal?

MR McKERNAN: No, that's correct.

THE COMMISSIONER: All right.” 1

[12] In terms of background to the PIP, it is relevant to note that the Applicant had objected to the PIP, with her then Area Manager, Mr Gerardo Hernandez. The Applicant’s evidence was that Ms Jodie Coleman, a Case Manager for the Respondent, was responsible for the difficulties she experienced. Her evidence was that, Mr Hernandez had not considered the PIP was serious and that he had stated that she was really good at her job, as a case worker with the children in care. The Applicant stated that Mr Hernandez had said however, that he would move her to a different house. The Applicant understood from him that this would remove her from Ms Jodie Coleman’s supervision. Whilst Mr Hernandez was still employed by the Respondent, at the time of the hearing, he was not called to give evidence to challenge the Applicant’s stated view of the PIP.

[13] The Applicant worked at this new residence until she was later informed that there was to be a change in the children residing in the house where she worked and that the support workers were to change, to an all male team. The Applicant was also informed that she would possibly be moved to Mareeba within the supervision of Ms Coleman. Therefore, on 24 June 2019, the Applicant sent an email to Ms Rachelle Mann, Cultural Specialist Safe Places, addressing complaints about her Case Manager, Ms Jodie Coleman. The Senior Area Manager, Ms Olivia McHugh, was copied into this correspondence. The Respondent contended that Ms McHugh attempted to discuss the complaint with the Applicant, however the Applicant was unresponsive. The Applicant proceeded on sick leave at this time.

[14] The Applicant’s email stated:

“Good afternoon Rachelle,

I am writing to you as the Cultural Specialist for the Safeplaces, in which I am writing in a complaint about Jodie Coleman.

Today, Jodie had rang me in regards to moving me to the house in Mareeba, I was not allocated to Mareeba, other people were allocated, Helen lives in Atherton and should remain there as it is easy for her to get there then us, and she has been working there with other Safeplaces staff. I do not wish to go Mareeba, as I have been assigned at Coconut because I have been placed on a PIN that was warranted by Jodie and her accusations against me, which is why Gerarado placed me on a PIN. Since Jodie has been Case Manager the team has gone down hill and now she is completely trying to change staff after we had done hard work with (redacted), (redacted) and their families in achieving positive outcomes. I wish my grievance to be taken seriously against Jodie has I have had no work related incident since being removed from Renton to Coconut. Now that Jodie has come on board, I have had a dispute again come up with her in which she is removing me from the Coconut Residents.

I wish to not be removed from Coconut as (redacted) and his family needs Aboriginal youth workers to engage with them. I have undertaken most of (redacted) family contact which is the reason why (redacted) siblings have been allowed to undertake sleep overs for the first time with their mother on Friday (redacted). I do not wish to go to Mareeba as I have spent a good deal of time working with (redacted) and (redacted) and their families, which is why everything has been positive, not only that (redacted) and his family have a right to have an Aboriginal Youth Workers engaged with them while (redacted) is in the Child Protection arena.

Kind regards, Sarah Addo Youth Support Worker Support – North Queensland”

[15] The Applicant raised these issues in a phone call with Ms Lal, who was acting in Ms Coleman’s position. The first allegation arose from this phone call. These matters remained unresolved at the time that the team meeting was undertaken. The second allegation arose from this meeting.

RELEVANT LEGISLATION

[16] Section 394 of the Act sets out:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy

…”

[17] Section 385 of the Act relevantly provides as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[18] The Respondent was not a Small Business Employer and the Applicant had been employed for more than six months. The following provision was included in the Directions for the parties to address in submissions:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant.”

[19] The parties were also directed to provide submissions in regards to to any remedy to be ordered, as per s.390 of the Act which provides:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

SUMMARY OF THE APPLICANT’S MATERIAL

[20] It was alleged that the Applicant had used threatening and racially divisive language. The Employer considered these allegations also to be supported, as the Applicant had become hostile (in the final meeting), toward Mr McKernan. The Applicant denied this, but was very concerned at the nature of the meeting. The Applicant denied that the alleged performance and conduct issues justified her dismissal. The Applicant considered that she was not in breach of the Respondent’s policies and procedures and further submitted that she was treated unfairly, as a result of making a workplace bullying complaint about Ms Jodie Coleman, Case Manager for the Respondent. Furthermore, the Applicant was concerned with the alleged conduct of using racist and discriminatory statements, as levied against her and she took issue with the workplace investigation undertaken prior to her dismissal. The Applicant filed an outline of submissions and three witness statements; for herself, Mr Taula and Ms Stephens, both Youth Support Workers employed by the Respondent. Whilst Mr Taula provided evidence, Ms Stephens’ statement was tendered by consent, but she did not appear in the Commission for cross examination.

[21] As referred to, it was set out by the Applicant, that she was involved in a dispute in early February 2019 with Ms Coleman, who was her direct supervisor. This resulted in the implementation of the PIP. The Applicant stated Ms Coleman had subjected her to incidents of bullying and discrimination. Ms Coleman accused the Applicant of breaching the Respondent’s policy and procedures booklet. Further to these allegations, Mr Gerado Hernandez, Area Manager of the Respondent, stood down the Applicant for a period of two weeks to allow for the further investigation of the matter. Subsequently, the Applicant stated that a meeting was held on 8 February 2019, at which it was conveyed, that she was cleared of any breach of company policy. The Applicant set out that Mr Hernandez considered it appropriate, that she be moved away from Ms Coleman’s supervision to the Coconut Resident at Holloway Beach, where the Applicant worked under a new Case Manager, Mr Raymond Dufficy. The overall supervision responsibilities remained under Mr Hernandez.

[22] The Applicant stated that on or around 17 June 2019, Mr Hernandez was replaced by Ms Oliva McHugh, Senior Area Manager, and shortly after Ms Coleman assumed the role of Case Manager of the Applicant. The Applicant was concerned with Ms Coleman becoming her Case Manager, given the prior difficulties with her. Accordingly, (as referred to), after events occurred at the house, she sent the email of 24 June 2019. The Applicant sent the letter of complaint against Ms Coleman to Ms Rachelle Mann, she copied in Ms McHugh and Ms Coleman. That letter of complaint by the Applicant, has previously been set out earlier in this decision.

[23] The Employer submitted that intervening events (referred to below) occurred with the Applicant, which resulted in the Applicant being provided with a letter to Show Cause why her employment should not be terminated. The contents of the letter relevantly set out as follows:

“Dear Ms Addo,

Re: Show cause letter

A number of concerns regarding your conduct have come to the attention of Safe Places for Children (SPFC) that could amount to breaches of your contract of employment and SPFC policies including, but not limited to, the Human Resources Booklet 7.8.1.

It is noted that you completed your Youth Worker induction on 21 December 2019. You also completed your policy declaration most recently on 15 May 2019. As part of the policy declaration you agreed that you had access to SPFC policies and agreed to abide by them as part of your continuing employment.

Allegation 1

On 25 June 2019 you indicated to a Senior Youth Worker over the phone that you would sort out the Case Manager following communication of placement moves and subsequent team moves. The information was taken to be a threat to the Case Manager with the context provided in your conversation directly relating to Jodie Coleman. This conduct if substantiated constitutes a breach of section 7.8.1 of the Human Resources Booklet.

Allegation 2

On 26 June 2019 you acted unprofessionally in the team meeting you were in attendance of. Examples of the unprofessional conduct include arguing with the Case Manager in front of the entire team, making comments that imply discrimination in saying words to the “would fight for her people and would do what ever it takes unlike us Caucasians”. This conduct does not fall within the values of the organization.

Performance history

We note that you have the following performance history:

08 February 2019 – PIN/PIP. You had shared information outside of the organization that was not approved, breaching confidentiality of the young person and failed to indicate a conflict of interest in line with policy. This matter remains open with a close out date of 08/02/2020.

02 April 2019 – Brief Guidance. You were provided a Brief Guidance for incorrect medication handling.

Response and meeting

You have until 5pm Monday 1 July 2019 to provide your response in writing to the conduct contained within this correspondence.

A meeting has been scheduled for Thursday 4 July 2019 at 10am. The meeting will be at the SPFC Cairns office located at (redacted). You will be meeting with Senior Area Manager Oliva McHugh and Industrial Relations Specialist Troy McKernan.

The purpose of this meeting is to discuss your written response and anything arising out of your response.

We strongly encourage you to bring a support person with you to this meeting. The role of the support person is not to advocate on your behalf but be an emotional support.

Failure to attend the meeting at the time specified, or a mutually agreeable alternative time, will result in a failure to follow a lawful and reasonably direction which may result in further disciplinary action up to, and including, termination.

Should you choose not to attend the meeting we will make the decision on the information we currently have before us.

It should be noted that no decision has been made.

During this time should you require further support I would like to remind you that you have access to complex care if you wish to seek additional support outside of the organization. You can access up to five sessions initially. You can contact Complex care on (redacted).

If you have any questions, please call Oliva McHugh (redacted).”

[24] The Applicant responded to the Show Cause letter and considered the allegations levelled against her were a misrepresentation of her statements. Her response to the Show Cause letter is set out below:

“In response to the Safe Places for Children issues and concerns regarding my conduct in which it has been highlighted that I had made a number of concerns. These concerns in which you state are breaches of the contract of employment, in which I respond that I have breached no policies or procedures of the SPFC or the Human Resources Booklet 7, 8.1.

That is correct in which you noted that my Youth Worker induction, policy declaration and other required criteria's such as the Cert IV in Child, Youth and Family Intervention, Hope and Healing modules are all up to date, as required to be certified to undertake the roles that I am employed bv the SPFC. Another words all my credential requirements with the Safeplaces and the Department of Child Safety, Youth and Women (the Department) are being met and is not lacking in regards to my capacity building skills within the SPFC.

Allegation 1

SPFC, allege that on the 25 June 2019 – I, Sarah Addo had indicated to a Senior Youth Worker in a telephone conversation and stated that I would ‘sort out’ the Case Manager, following communication of placement moves and subsequent team moves".

This I defend as my statement about "sort out” has been interpreted wrongly by Swasi Lal, the Senior Youth Worker and at the time the Acting Case Manager as Jodie Coleman the allocated Case Manager was on leave, and Swasi performed her role while she was on leave. Jodie only recently returned to the Case Managcr role, and Swasi was still acting in the position to finalise some of the activities that she had approved under her command.

My response is that I did not make no such threat to Jodie Coleman as sort out was used in a professional manner to address the issues and concerns of (redacted) being moved without his consent or his parents, as no family led meeting took place with (redacted) and his Family to consent to the replacement of (redacted). As Youth Worker for (redacted) I along with my work mates questioned the move as this was not done within the Child Protection Placement Principles which is a legislative requirement. Not only that (redacted) had requested to the Youth Workers of the house, as well his CSO - Sam and Jodie that he did not wish to be removed from the Coconut Residential as he felt Safe and Secure at the residents.

So my response is that I believe that I did not breach the section 7.8.1 of the Human Resource Booklet as I was acting on the needs of (redacted) who requested me as his youth worker to assist him to stop them from removing him from his current placement. At the meeting the team expressed that we should of be consulted prior to the changes as there were Coconut Resident Team meetings in which the Coconut Resident team were allocated portfolios to manage and implement to capacity the young persons in care.

As a worker I believed that Jodie Coleman should have discussed this with me to clarify with me about what I meant by the statement instead of interpreting a statement that she wants and not what was actually meant by it?

Allegation 2

SPFC, allege that on the 26 June 2019 – I acted unprofessionally in the team meeting that was held on Wednesday 26 June 2019, in which this was my day off, but still attended and acted unprofessional including arguing with the Case Manager, in front of the entire team, making comments that imply discrimination in which I supposedly stated that I would for her people and would do what ever it takes unlike us Caucasian, you further state that the conduct does not fall within the values of the organisation.

My response was not discriminating, in fact I deny that I stated like you Caucasian was directed at Jodie or anyone around the table as I am aware that the team is very multi-cultural. I believe that Jodie Coleman is making this statement up as there was no arguing, and there was no racial comments made in an insulting manner.

Yes it is true that Aboriginal Child, Youth and Family Support Workers would fight for our people, in the context that we will advocate and lobbying hard to address their issues and concerns so that it does not become an ongoing issue or concern. Aboriginal Child,Youth and Family Support Workers do go one hundred yards for there ATSI people and other nations, to ensure that the Child Protection Legislation and the Child Placement Principle is implemented within the required legislative requirement.

Performance History

SPFC, had in their letter noted that I have the following performance history whilst I was employed by the Organisation:

1. 08.02.2019 – PIN/PIP – I wish to clarify that this matter was already dealt with the former FNQArea Manager, Gerarado Herncdez – in which it was discussed that I did not share information outside the organisation that was not approved. As indicated at that meeting to justify the accusation that Jodie Coleman was accusing me off in which she was the Case Manager for Renton a residential site that I was allocated to work at and Jodie was the Case Manager.

As indicated in SPFC letter to me dated 27 June 2019, the matter still remains open until 08/02/2019, as I do not believe that I breached confidentiality of the young person at Renton and I did not declare a conflict of interest in line with policy, as there was no conflict of interest to declare. I am not blood related to the young person that they are accusing me of breaching confidentially off, not only that I do not know the young person's Mother or Father.

I believe that I am being workplace bullied and harassed by Jodie Coleman and that SPFC management are assisting her to workplace bully, harass and discriminate against me which is why I was removed from her team to Coconut Resident and under the supervision of Raymond Dufficy, the Case Manager for the Coconut Resident I believe that Jodie was moved to Coconut Resident to bully, harass and discriminate against me because I am Aboriginal and that I am the only Aboriginal Employee of the Company in the role that I play and I successfully engage these young people with their families.

Since the 8 February 2019 until 27 June 2019, I had no workplace dispute or further incidents with my Case Manager and since SPFC management had moved Jodie to my current working site a dispute has now been raised by myself in regard to the unfair treatment in my employment. A grievance letter and complaint to the Senior Management for SPFC was lodged for their actioning, in which I objected to being under Jodie’s management because of the history and outstanding complaint made against Jodie in which she is workplace bullying, harassment and discriminatory behaviours against me.

I wish that this matter be reopened as the time frame is still valid, in which Jodie first bullied, harassed and discriminated me and therefore wish closure as this is affecting my social and emotional wellbeing.

2. SPFC also further notes that on 02 April 2019, that I was given a brief guidance for providing an incorrect medication handling. I wish to clarify that and seek to look at the medication sheets as I always give (redacted) medication, I also wish to check my shift reports to confirm as Ray gave us strict directions to record to the shift reports.

All staff got this brief guidance not just me and therefore should not be included in this history as I was not at fault; in fact some staff who got the brief guidance for incorrect medication handing, objected because they were not on shift but still got the brief Guidance as other team members were not implementing the procedure correctly, so I strongly object that this should be used against me as all Coconut youth workers got the brief guidance.

Because of this unfair work place bullying and harassment with the SPFC, Case Manager - Jodie Coleman, in which her accusation, I feel were very racial and discriminating in which it caused great stress to me both socially and emotionally health wise, mentally and physically health wise. Because of this I have sought externally providers to assist me to address this matter and will deal with SFPC on all avenues including the United Nation Declaration for Indigenous People, the Discrimination Act, the Native Title Act 1993 and the Child Protection Act 199, in which Aboriginal People have rights and interests to protect and perform ATSI services and people.

I feel that it is very unprofessional of Jodie Coleman to make accusations of staff such as me in regards to statements made at an organised team meeting in which Jodie and Swasi organised and invited team members such as myself to have input into the service delivery of Coconut Residents, (redacted) and (redacted) in which we have been positively working with the Young Persons and their families for the last Eight (8) Months,.

Should you have any further queries please contact me on (redacted) or email me?

Kind regards,

Sarah Addo”

[25] Further to this, the Applicant was advised of a Skype meeting she was to attend on 30 July 2019 with Ms McHugh and Mr Troy McKernan. It was at this meeting the Applicant’s employment was terminated. The Applicant did not bring a support person to the meeting.

[26] The letter of termination provided to the Applicant, on the same date as the meeting, set out (repeated here for convenience):

“Dear Ms. Addo,

Re: Termination of Employment

You were invited to show cause as to why your employment should not be terminated. We provided you with a written show cause notice dated 28 June 2019 outlining the allegations against you.

We have taken into consideration:

• Your written response dated ·1 July 2019

• Your meeting and responses dated 30 July 2019; and

• Your performance history.

Allegation 1

You admitted to giving using the phrase “sort out” during a telephone conversation with Acting Case Manager Swastika Lai. While you indicate that this was interpreted wrongly and have provided context to the day, the information was interpreted directly by Swastika Lal as a threat to the welfare of another team member. You have failed to understand that you have admitted to the conduct and that this constitutes a breach in the policy. This allegation is substantiated.

Allegation 2

In your written response you admitted to the phrases outlined in the show cause letter, however in the meeting 30 July you changed your response to say, "mainstream people”. You indicated your response that your intent was different, two in attendance of the meeting have provided written statement alleging that you directed your comments at Jodie Coleman. The Statements I have received from other people in attendance are at odds with your defense (sic) and therefore on the balance of probabilities I accept that the comment was directed at an individual in a derogatory manner. This allegation is substantiated.

I would like to remind you that you have access to external support should you wish to use it. The support is provided with Complex Care who can be contacted on (redacted).

Sincerely,

Olivia McHugh

Senior Area Manager Townsville and Cairns”

Summary of evidence and submissions for the Applicant

[27] In response to Directions, the Applicant filed a witness statement in this matter in support of her argument. The Applicant submitted she was employed as a Youth Support Worker with the Respondent from 3 December 2018 until her dismissal. The contents of the witness statement specifically dealt with the show cause letter sent to the Applicant on 27 June 2019 and the Applicant’s response letter dated 1 July 2019.

[28] The Applicant contended, that in late January 2019, she had a dispute with her Case Manager, Ms Jodie Coleman, who was the house manager of the Renton Residence at Edmonton. The Applicant submitted that she was subjected to bullying and discrimination from Ms Coleman and to a series of unsubstantiated allegations. The Applicant stated that she was stood down for a period of two weeks pending an investigation into allegations levelled against her. The Applicant stated that during the investigation, the Applicant attended a meeting with Ms Coleman and the Area Manager Mr Hernandez, where she was cleared of any allegations. Further to this, the Applicant submitted that Mr Hernandez moved her from Ms Coleman’s supervision to the Coconut Residence, that was situated at Holloways Beach, under a new line manager, namely being Mr Raymond Dufficy within the overall responsibility of Mr Hernandez.

[29] The Applicant maintained that she was informed by Mr Hernandez that she was an exceptional Youth Worker, and further stated that by being moved under the supervision of a new House Manager, the dispute with Ms Coleman would no longer occur and that she may focus on her work. Further to this, the Applicant submitted that she successfully attended all her rostered shifts and passed her three-month probationary period.

[30] The Applicant stated that on or about 17 June 2019, she became concerned with staff changes to the Coconut Residence and that Ms Coleman would be transferred as the acting Case Manager at the Coconut Residence. The Applicant stated she was advised that she would be transferred to Mareeba (north of Cairns) to work where Ms Coleman was the Manager of the Mareeba Resident. The Applicant submitted that in discovering this news, she then replied to this with a letter of complaint against Ms Coleman, to senior management staff.

[31] The Applicant submitted that she received a telephone call from Ms Swasi Lal, Senior Youth Worker, advising they were removing one of the young men in her care at the Coconut Residence. Ms Coleman was away at this time. The Applicant was advised by Ms Lal, that the youth being moved may become angry upon receiving the news, that he would be leaving this residence. The Applicant said that she was instructed to assist with gathering his belongings and transitioning him to his new residence. The Applicant raised issues regarding this, citing a lack of consultation in the decision-making process. She considered that this youth, who she had supported, had been getting into structured routines and becoming more connected with his family at his current residence. The Applicant further noted that Ms Lal, said Ms Coleman had made the decision to remove the youth from this residence. In response to this the Applicant said, she stated then she would “sort this matter out with Jodie”. Issue was taken with this statement by Ms Lal and the Respondent. The Applicant’s position was that this statement did not amount to any threat towards Ms Lal or Ms Coleman.

[32] The Applicant submitted that Ms Coleman advised her, to attend a meeting on 26 June 2019, to openly discuss the concerns, she harboured, in relation to removing the youth. This meeting was the lunchtime team meeting which had been organised to be held at a public restaurant near the wharf, in Cairns. It was during this meeting, that the Applicant queried the proposed changes to the mixed male and female, to a male only team. The Applicant cited that Indigenous children’s cultural needs may be put at risk by this change. The Applicant noted that she used the word ‘Caucasian’ in the context of distinguishing between the needs of Indigenous and non-Indigenous children. The Respondent considered that she made these comments in a derogatory fashion against Ms Coleman. The Applicant denied this.

[33] On the 30 June 2019, the Applicant arrived for her rostered shift to discover that she was not rostered on the shift. She was advised by Ms Coleman that she had been sent a letter from the Senior Area Manager, Ms Olivia McHugh, stating that she had been stood down pending a workplace investigation. The Applicant was directed to provide a written response to the letter to show cause by 1 July 2019. The Applicant attached the response she provided (as set out above) to her witness statement.

[34] In responding to the allegations raised, the Applicant placed significant emphasis on the manner in which her conversation and statements had been interpreted by the Respondent. She considered that her statement about “sort out” had been interpreted incorrectly by Ms Lal and as well by Ms Coleman. The Applicant stated her response was not said in a threatening tone, nor was it intended to convey a threat. It is the Applicant’s evidence that she was wanting to question the decision to remove a youth from a certain residence, in accordance with Child Protection Placement Principles. She considered that she was acting in line with the needs of the youth in question, and did not breach the policies in the Respondent’s Human Resource Booklet.

[35] With respect to the second allegation, the Applicant denied that she acted unprofessionally during a team meeting held on 26 June 2019. She further denied that utilising the word ‘Caucasian’ was discriminatory towards Ms Coleman and stated that the organisation and team is very multicultural. The Applicant admitted she was stunned, upon discovering this had been perceived in this manner. Further to the workplace investigation, the Applicant attended a Skype session meeting on 30 July 2019 with Ms McHugh and Mr Troy McKernan, where she denied the two allegations levelled against her. She further said that she did not receive a warning, counselling or any disciplinary action, in relation to her performance or conduct. Further to this, the Applicant raised issue with the method and treatment she was subjected to during the meeting, submitting that her response was often dismissed, and she was spoken to in an unprofessional tone.

[36] The Applicant stated that since the dismissal, she had applied for “numerous jobs” and was currently receiving unemployment benefits since her dismissal. She sought reinstatement to her previous position and the award of compensation for lost wages.

Summary of the evidence of John Taula

[37] Mr John Taula, Youth Worker for the Respondent, provided a witness statement in the proceedings.

[38] Mr Taula stated that he commenced work with the Respondent in May 2019 and worked directly with the Applicant as part of a team until late June 2019. He considered that the Applicant’s performance was positive and that she was a committed player within the team. He described the Applicant as direct, courteous and engaging with all staff. He further submitted that the Applicant was well aware of maintaining the safety and protection of all children and their parents, and she often displayed a great understanding of cultural awareness and sensitivities when working with Indigenous children.

[39] During cross examination, the witness was provided with a screenshot of his ‘congrego’ employment record and as a result confirmed he only specifically worked shifts with the Applicant on 19 and 20 June 2019.

[40] Mr Taula said he attended the team meeting on 26 June 2019 with all team members and Ms Coleman, including the Applicant. He stated queries were made toward Ms Coleman’s decisions to change from mixed to all male team members. Mr Taula stated that he recalled a conversation, that indicated that the Applicant stated Ms Coleman should change her decision. Further to this, Mr Taula’s evidence was that Ms Coleman shut the conversation down promptly.

[41] Mr Taula was cross examined by the Respondent’s representative, Mr McKernan, about the team meeting. The cross examination was as follows: 2

“MR McKERNAN: So, where you say, "Like other team meetings", you're not really in a position to say what other team meetings have been like, have you?---No. I just assumed.

Okay. So it says that "we all raised various issues of concerns", so which issues did you raise?---None, really. I had asked questions after issues had been – been said, just to learn of how things operated at the house and with Safe Places.

Now you say in paragraph 8, amongst other things, that some members were querying Jodie about the changes from mixed to all male team members. It's true, isn't it, that when everyone was bringing that up, Jodie wasn't the person who made that decision, was she?---No.

And where you say that Jodie explained it was decided by others to make those changes because of the risk of danger of those children, it's true, isn't it, that the new young person that was coming into that house, had sexualised behaviours?---Yes.

So safe places, as an employer with workplace health and safety obligations, to minimise risk, it made sense that we were changing to all male teams, didn't it?---Yes.

THE COMMISSIONER: So when were you were first advised about the change to the mix of the team, to being all male?---I'd heard about it prior to the meeting, but then it was confirmed at the meeting.

And how had you heard about it?---Just through other staff.

What are the implications from changing from male/female, to male? Is that possibly, people will move teams or lose jobs or – what are the implications?---No, no-one loses jobs. They just go to the different team.

All right?---Yes.

So you'd heard rumours prior to that?---Mm-hm.

And at this meeting did Ms Coleman convey that there was to be a change of team?---Yes. I – other staff members had queried it and she confirmed it.

So other people raised it?---Yes.

All right. And then she confirmed at that particular meeting that there would be change?---Yes.

And when was that to be implemented?---As soon as the new young person came to the house.

Was there any timing on that?---I can't remember.

All right. Mr McKernan?

MR McKERNAN: Yes, thank you. Just for further clarity, so in terms of the changes do you accept that the young person, AL, moved out of the Coconut residence on 25 June?---Yes.

And she was replaced with the new young person who had sexualised behaviour, shortly thereafter?---Yes.

Yes. Just one question that you may or may not know the answer to?---Okay.

Are you aware that Ms Coleman who is the case manager, had been on leave for three weeks leading up to shortly before that move was made?---No.

If I said to you that she was, would you accept it?---Yes.

So, in paragraph 10 you talk about Ms Addo adding to the discussions, that they should be considering though the culturally appropriate approaches by female members, and Ms Coleman stopped the discussion very quickly and closed the meeting. Were there any issues when other team members were giving their opinions?---No.

So, I put it to you that - - -

THE COMMISSIONER: Well, just, what other opinions were given?---Like, everyone had their say in the meeting. And Ms Addo had – she said her thing last, and – yes.

Can you recall, when you say everyone had their say, what sort of issues might have been raised?---No, they were just commenting on, you know, maybe what house they were going to be moved to, and when was all this going to happen, when was the new young person moving in, and the all male term would start.

All right, Mr McKernan.

MR McKERNAN: So I put it to you that the reason that Jodie closed the meeting shortly after Ms Addo started talking, was because that was the only way she could de-escalate the situation?---Yes.

So you say in paragraph 11 that there was no unprofessional conduct by Ms Addo or anyone else in the meeting?---No.

So do you consider speaking aggressively towards her case manager is being professional?---I didn't find it aggressive. She was – wasn't aggressive.

Okay?---Yes.

Well, do you consider using racially divisive language in a team meeting as being professional?---I don't remember any racially – she did talk about who she was – when young people go back to their homes, who do they go back to. And the answer was, "to the mothers". And then she was like, "Then why are you taking the females off the team?"

Okay. But did you hear Ms Addo use either the word, "Caucasian", or the team, "mainstream people", in the meeting?---No, I don't recall.

Are you aware that Ms Addo has actually admitted to using these words?---No.

So it's fair to say then that you didn't actually hear everything that Ms Addo said?---I probably heard everything, but maybe I didn't take everything in.

So the best evidence you can give today is, you didn't see her so doing anything unprofessional?---Her conduct on the day didn't seem unprofessional to me.

From what you can recall, which you have just admitted that you didn't hear her using racially motivated language?---No, I didn't hear that.

THE COMMISSIONER: Well, you'd better put to the witness what you're suggesting is racially motivated language, to the witness.

MR McKERNAN: So I put to you that using the words, "Caucasian" or "mainstream people", was racially motivated language?---It is, yes.

And you didn't hear that, did you?---No.

I have nothing else, Commissioner.”

[42] Mr Taula said the Applicant did not act unprofessionally during the meeting and nor did anyone else. Mr Taula agreed that he later became aware that Ms Coleman did not make the decision to change the composition of the team to all male. He also agreed that he later understood that the Respondent had implemented the change on the Department’s advice to minimise the risk, as a new young person entering the house, had exhibited “highly sexualised behaviours.”

Witness Statement of Esther Stephens

[43] Ms Esther Stephens provided a statement (that was tendered by consent) however she was not present for cross-examination. Ms Stephens was a Youth Worker for the Respondent.

[44] She stated that she was previously under the direct supervision of Ms Coleman and later moved to the Coconut Residence with the Applicant in early 2019. Further to this, Ms Stephens stated she was present during the meeting that took place with the team on 26 June 2019.

[45] It is Ms Stephens’ evidence, that Ms Coleman commenced that meeting by raising matters of concern. A matter that was said to have been raised related to the sudden change of the team composition, from male and female support workers to male only. Ms Stephens considered that the atmosphere in the room was that of shock, as there was no consultation prior to the change enacted by Ms Coleman.

[46] Further to this, Ms Stephens said the Applicant added to the discussion at the meeting as she considered the Applicant to be a strong advocate on behalf of Indigenous and non-Indigenous children. Ms Stephens said the tension was evident in the exchange (of about two minutes) between Ms Coleman and the Applicant. It was stated that both Ms Coleman and the Applicant had calmed down shortly after the meeting had closed.

[47] It is Ms Stephens’ contention that the Applicant, as well as all other members of the team, did not breach the Professional Conduct Standards of the Respondent.

APPLICANT’S SUBMISSIONS IN REPLY

[48] Submissions in reply were provided on behalf of the Applicant, to the Respondent’s material and witness statements. The Applicant’s representative primarily objected to a majority of the paragraphs in Ms Olivia McHugh’s witness statement being admissible. The Applicant objected to these paragraphs on the basis that they were ‘irrelevant, vague, confusing, opinion and/or hearsay’. The Applicant’s representative did not take the opportunity to cross-examine Ms McHugh. There is a challenge of her evidence between the accounts of the Applicant’s other allegations and the final meeting.

[49] The Applicant submitted that she strongly denied ever using ‘threatening’ or using ‘menacing’ words in the course of the meeting that took place on 30 July 2019.

[50] In relation to the Applicant’s account (relevant to the PIP) of the initial meeting between Mr Hernandez, Ms Coleman and herself, she submitted that there is no evidence provided by the Respondent that is contrary to the Applicant’s assertion that Mr Hernandez had cleared the Applicant of any breach of policy or procedure during this meeting. The Respondent did not call Mr Hernandez to challenge this evidence.

[51] The Applicant submitted that Ms McHugh’s claim that she scheduled a meeting with the Applicant on 26 June 2019 was irrelevant, vague and should be disregarded.

[52] The Applicant further stated that she had no knowledge of the email that the Respondent alleged she sent to Ms McHugh and Mr McKernan on 30 June 2019 requesting a meeting. And that no evidence of this email was provided by the Respondent.

[53] The Applicant insisted that her written response to the allegations was provided on 1 July 2019 as required, and not 2 July 2019, as claimed by the Respondent. However, the Respondent indicated that they accepted the response.

[54] The Applicant submitted that the reference made by the Respondent to the subsequent Workcover claim, in relation to bullying conduct, held no relevance to the unfair dismissal proceedings. The Applicant stated her Doctor had encouraged this.

[55] The Applicant submitted that the references made by Mr McKernan in relation to the Applicant’s conduct during the meeting of 30 July 2019 should have been inadmissible evidence at the Hearing, given that he was the representative at the Hearing and he provided no direct evidence of such.

[56] The Applicant refuted the Respondent’s assertion that she was encouraged to bring a support person to the meeting of 30 June 2019, and further refuted that her conduct amounted to breaches of the Respondent’s policies.

[57] The Applicant submitted that the primary remedy sought was reinstatement, however in the alternative, if compensation was to be awarded, the Applicant sought the amount of $31, 669 on the basis that there had not been any reduction, nor any misconduct or breaches of policy made out. The Applicant is still receiving unemployment benefits and has been since the commencement of her dismissal. The Applicant further stated that the Respondent was malicious in preventing the Applicant from receiving a statement of service, therefore frustrating the Applicant’s attempts at finding alternative employment.

SUMMARY OF THE RESPONDENT’S ARGUMENTS

[58] The Respondent submitted an email was sent by the Applicant to the Respondent’s Industrial Relations specialist, Mr Troy McKernan on 30 June 2019, regarding the emails sent to her by Ms McHugh whilst also making complaints about unfair treatment she was experiencing as a Youth Worker.

[59] The Applicant responded to the Respondent’s letter to show cause on 2 July 2019 at 1:30pm. The Respondent stated her responses were considered despite the lateness of the response. Further to this, the Applicant submitted a medical certificate citing unfitness to work covering the period up to 8 July 2019. Due to the medical certificate, the Respondent submitted it rescheduled its meeting with the Applicant to a later date, namely 10 July 2019 at 10am, to discuss her response to the letter to show cause. Further medical certificates were provided to the Respondent till 29 July 2019. During this period, the Respondent indicated in its submissions that the Applicant had exhausted her personal leave entitlements and then utilised annual leave.

[60] The Respondent subsequently convened a meeting on 30 July 2019, there being a break in the continuity sequence of medical certificates. The Applicant submitted she had been unaware that the last medical certificate had not provided continuous sick leave coverage. At the meeting, the Applicant provided the Respondent with a Workcover certificate to Ms Ellen Whitfield, Area Manager for the Respondent. The Respondent submitted, at no time prior to 30 July 2019, was the Respondent privy to the Applicant’s medical certificate (in her possession) covering a period including 30 July 2019.

[61] At the meeting, the Respondent submitted the Applicant was terminated from her employment for the following reasons; for using the term “sort out”, which the Respondent deemed to be a threat to the welfare of another person and by utilising racially divisive language towards Ms Jodie Coleman, which was considered to be unprofessional misconduct.

[62] The Respondent raised issue with various facts and circumstances contained within the Applicant’s submissions.

[63] The Respondent considered the Applicant’s reference to “the incident” in February 2019 was factually incorrect and maintained the Applicant’s dismissal was also due to her conduct in June 2019. Further to this, the Respondent considered the Applicant’s accusations that she was bullied by Ms Coleman as baseless. In relation to the bullying accusations levied against Mr McKernan, the Respondent considered these to be unfounded, as no particulars of fact have been established by the Applicant.

[64] The Respondent rejected the Applicant’s assertion at paragraph 5 of her submissions that she was cleared of a breach of policy by Mr Hernandez.

[65] The Respondent refuted that the Applicant’s assertions in paragraph 7 of her submissions that Ms Coleman, had at any stage, discriminated against the Applicant. The Respondent also raised issue with the Applicant making a complaint to Ms Rachelle Mann, as she does not have the authority to deal with these matters in this regard. Furthermore, the Respondent rejected the Applicant’s argument that it was Ms Coleman that made the decision to move the youths in the Respondent’s care. It also noted in the Respondent’s submissions that Ms Coleman did not and could not terminate the Applicant’s employment, as asserted, because Ms Coleman does not have the authority to do so. It submitted that the authority to terminate an employee rests with Senior Area Manager or an employee in a position above.

[66] In relation to paragraph 20 of the Applicant’s submissions, the Respondent asserted the Applicant was issued a lawful and reasonable direction to attend a meeting to discuss the show cause letter and her responses. The Respondent considered this was an appropriate course of action to undertake. In contrast to the Applicant’s version of events of the meeting of 30 July 2019, the Respondent submitted it was the Applicant who demonstrated disrespectful and unprofessional behaviour. The Respondent submitted that the Applicant’s demeanour was aggressive towards Mr McKernan. Furthermore, the Respondent rejected the Applicant’s assertion that she was summarily dismissed, stating that she was paid one week in lieu of notice. The Applicant submitted on commencement of the meeting with the Respondent, the Respondent raised that the Applicant was non-compliant with her computer-based competences (an issue unrelated to the reason she was there to discuss).

[67] Furthermore, the Respondent made submissions in relation to the Applicant’s assertion that she was bullied by Ms Coleman. They raised that whilst the Applicant made these claims, she had not provided particulars of fact and therefore, submitted the Commission cannot make this finding. The Applicant had relied on her response to the PIP as managed by Mr Hernandez.

[68] The Respondent relied on the Applicant’s conduct during the Skype meeting on 30 July 2019, suggesting that as the Applicant demonstrated an aggressive and threatening manner towards Mr McKernan, then it was not improper to suggest the Applicant would use threatening language to another member of staff (Ms Coleman); at the team meeting.

[69] The Respondent drew reference to the Applicant’s statement at paragraph 24 of her submissions. It contended that the Applicant’s alleged reference to ATSI workers and fighting for their people, unlike Caucasian people, can only be interpreted as racially divisive in its meaning. The Respondent further noted that the Applicant (was witnessed by fellow employees), raising her voice and attacking Ms Coleman, during a team meeting over policies, further suggesting, it was unprofessional in nature.

SUMMARY OF EVIDENCE ON BEHALF OF THE RESPONDENT

Summary of evidence of Olivia McHugh

[70] Ms Olivia McHugh, Senior Area Manager for the Respondent, provided a witness statement in these proceedings. The Applicant declined to cross examine her.

[71] Ms McHugh has been employed by the Respondent as Senior Area Manager since 18 February 2019. Prior to commencing this role, she worked in other capacities since 5 May 2014.

[72] Ms McHugh stated she was referred to the Applicant’s employment in February 2019 based on the information of various policy breaches by the Applicant. The alleged breaches were not addressed against the particulars of any policy. The Applicant had allegedly breached her professional boundaries by providing a letter to a Magistrate on behalf of a youth with Safe Places without the Respondent’s prior knowledge, nor that of the Department. This was noted as the first matter in the Performance History in the Show Cause letter. Further to this, an allegation was levelled against the Applicant in relation to an inappropriate conversation with family of a youth, advising them on how to gain the child back into their care. Lastly, Ms McHugh submitted that an allegation was made in relation to the Applicant downloading materials from the Safe Places computer systems on to a personal USB.

[73] Ms McHugh’s evidence was that these allegations were investigated by Area Manager, Gerado Hernandez and Senior Quality and Systems Manager, Skye Mackay. During meetings held with the Applicant, Ms McHugh stated that the Applicant had indicated she had breached the policy boundaries. As a result of the breaches, the Applicant was performance managed and was placed on a Performance Improvement Notice (PIN) and a Performance Improvement Plan (PIP). The Applicant was provided with the PIN/PIP on 8 February 2019 and was later signed as acknowledgement of acceptance. Ms McHugh stated that the Applicant did not make any bullying or harassment claims at this point in time.

[74] Ms McHugh noted that due to the severity of the breaches of the Applicant in February 2019, the decision making, and Performance Management of the Applicant was not managed by Ms Jodie Coleman. Rather, as a result of the breaches, the Applicant was moved from the team due to the professional boundaries breached with youths in the teams that Jodie Coleman was managing. It is Ms McHugh’s evidence that this decision did not relate to any conflict or perceived conflict between the Applicant and Ms Coleman but was made due to the Applicant’s conduct in breaching professional boundaries with youths she had been providing care to. This evidence was in contrast to the Applicant’s. Mr Hernandez was not called to provide evidence.

[75] It is understood that the professional boundary breaches related to the PIP which was in dispute between the parties. In addition, there was a medication issue which was a collective breach provided to the team and the Applicant’s provision of a personal character reference to a young woman appearing before the Magistrates court as an adult. The Applicant recognised that she should have discussed this matter.

[179] The Applicant at all times sought reinstatement. The alleged misconduct was not made out. There was no valid reason for the dismissal. The termination was harsh, unjust and unreasonable.

CONCLUSION

[180] In terms of the consideration of remedy, the Applicant sought reinstatement. The relevant legislative provisions for consideration of a remedy are set out in s.390, s.391 and s.392 of the Act. Relevant references were recorded in the Directions. In considering whether reinstatement is appropriate in all of the circumstances, the issue of the loss of trust and confidence raised by the Respondent must be considered. The issue of loss of trust and confidence has been considered by the Commission in Australia Meat Holdings Pty Ltd v McLauchlan, 11 the following observations remain relevant:

“In our view a consideration of the appropriateness of reinstatement involves the assessment of a broader range of factors than practicability…

We accept that the question of whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate. It is one factor to be taken into account, but it is not necessarily conclusive.

In Perkins v Grace Worldwide (Aust) Pty Ltd, the Full Court of the Industrial Relations Court said:

“...We accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of loss of confidence in the employee.

Each case must be decided on its own merits.” 12

[181] In considering reinstatement the issues relevant to the disciplinary action and the process used must be considered against the practicalities of reinstatement at the workplace. The Applicant works with a level of supervision and at the time of her dismissal, under the supervision of Ms Coleman. It is recognised that previously, the Applicant worked in a different house under the supervision of another case manager.

[182] On the basis of the evidence, there are no practicalities impeding reinstatement that is regarding questions over the Applicant’s TCI obligations, these would be required to be refreshed. In any event, given the Applicant had been permitted to work up until the timing of the dismissal it was not clear to her what TCI requirements were not up to date, nor was it made clear what TCI were outstanding. These matters could have been remedied commencing this final meeting with this additional issue was improper. This issue was raised as a further impediment to her continuing employment, when it did not feature in the show cause letter and when the Applicant was already agitated about the meeting where her job was in jeopardy. Raising the matter was provocative, and the Applicant’s response, was invoked as a result.

[183] It is recognised that there was ongoing conflict between the Applicant and Ms Coleman, and that the Respondent was aware of this perceived conflict for some time. Taking into account the limitations of the evidence on the allegations and that it was concluded there was no valid reason on the evidence to terminate the Applicant’s employment for using the term “sort out” and allegedly using racially divisive language during a team meeting.

[184] The process leading to the termination was procedurally flawed. The weight given to Ms Coleman’s and Ms Lal’s explanation of events by the Respondent was significantly greater than the weight given to the Applicant’s. In fact, it appears that the Respondent implemented the Show Cause process to merely demonstrate, it had done so, without giving any genuine consideration, to the responses provided by the Applicant.

[185] There were a series of matters, that discredited the evidence of Ms Coleman into cross-examination. She denied being aware of what the Applicant’s letter of 24 June was about and yet this was an email written to other senior managers and Ms Coleman complaining of alleged bullying of her by Ms Coleman. It is irreconcilable that Ms Coleman would not have known the nature of that significant letter for the Applicant and for herself, given that she was making allegations of bullying against her.

[186] Further Ms Coleman stated that at the time of that meeting it had not been raised with the Applicant that a possible outcome for her was to move to Mareeba as a support worker for the employer. However, it was put to her that in the letter of 24 June which the Applicant addressed to Ms Coleman, it was clearly set out in that correspondence. Ms Coleman was aware that the meeting that was convened as the team meeting, was to be held at the Mondo restaurant on the Cairns Esplanade. In proceeding to this team meeting she was aware that the Applicant was concerned about a range of things. She had been advised by Ms Lal after a phone call with the Applicant that the Applicant held concerns about the change of the team at Coconut House to an all-male team. She was also aware that the Applicant was concerned that this would mean a change in her job and whether she was to work to work from another residence or how it would affect her job.

[187] In her evidence Ms Coleman confirmed that she had been a caseworker since 2013 and was skilled in defusing situations, certainly in relation to managing youths, but dealing with situations of volatility or hostility. Ms Coleman indicated that these team meetings were pre-planned. However it should have been completely evident to Ms Coleman that the Applicant held several concerns prior to attending the team meeting and that whilst Ms Coleman had advised the Applicant that they would be discussed at the team meeting, it was clearly not an appropriate place or dynamic to have the discussions, regarding her individual grievances amongst a team bonding luncheon meeting.

[188] Ms Coleman was aware prior to the team meeting, that the Applicant had sought an explanation regarding what was to occur in terms of the movements of the children and the changes to the team. The Applicant was concerned about her job and where she would be working. At the time of the team meeting, Ms Coleman stated in evidence, that it had not been raised with the Applicant that Mareeba was one of the positions under consideration for her. However, the Applicant had raised this in her correspondence without a response.

[189] Using the team meeting to deal with the Applicant’s grievances was improper, particularly given Ms Coleman’s training, however, under cross-examination Ms Coleman agreed that her concern was that the Applicant raised her voice at the team meeting:

“MR ASCIONE: Is that what your concern was in the exchange?---No. I understand that she was upset, and we've all been in that moment where we've raised our voice a little, but it kept going and it kept becoming very accusing towards me, and the raising the voice got louder and louder, and we were in a public place. There were people around. We couldn't discuss that kind of thing in such an open area. There was no privacy. Like, we were in a little corner area, but as voices raised obviously people could hear.

All right, but, Ms Coleman, you've set the place for the team meeting?---It was already set before I - - -

Where are they normally held?---We normally would have them between the office and the house. At this particular time, though, it was - a team-build had been planned for the team meeting. So that was already pre-planned before the move had decided to be taking place.” 13

[190] It was open to Ms Coleman to organise, a prior appointment and provide a place to discuss these matters with the Applicant.

[191] Ms Coleman confirmed that the main concern she considered the Applicant had was that she wanted to stay in the Coconut House working with one of the young people there. She agreed that the Applicant was very committed to those in her care. The Applicant had later been advised that it was a decision of the Department to move the places for the children and to change the team.

[192] Clearly a group team meeting in a public place was inappropriate for these discussions when Ms Coleman was aware there was a series of matters, that required one on one discussion to resolve important issues that were emerging rapidly and that had frustrated the Applicant. Ms Coleman knowing these factors was at liberty to resolve the matters.

[193] In conclusion, based on the evidence there was no valid reason for the dismissal, the process was initiated improperly and was procedurally unfair. The loss of the Applicant’s employment was harsh and unjust. It is necessary to consider the question of remedy. As required by sections 390, 391, 392 and 393 of the Act, I am satisfied that the Applicant’s employment was protected from unfair dismissal and that she has been unfairly dismissed. The remedy sought is reinstatement. Compensation can only be awarded in circumstances where it is not considered appropriate to award the primary remedy of reinstatement. The evidence of Ms Coleman (the main protagonist), was that she could work with the Applicant.

[194] There were no impediments to reinstatement made out on the evidence, as referred to. Ms Coleman, the Applicant’s supervisor, stated in her evidence that she could resume work with Applicant again. Whilst it is recognised that those involved in the final meeting, undertaken by video were concerned at the Applicant’s demeanour in this meeting, it must be taken into account that the Applicant was attending a show cause meeting, as to why her employment should not be terminated. This was clearly a significantly pressurised situation for the Applicant. This was made more difficult when the two Respondent representatives commenced this meeting by introducing an additional issue, that the Applicant’s mandatory policy clearances, via the Respondent’s computer system were not up to date and she would have to be stood down in any event.

[195] This was unnecessary to raise at this meeting as the Respondent was not relying on this for the Applicant’s dismissal. Mr McKernan made it clear that the two allegations only were relied on for the termination. As set out any reliance on the PIP is undermined by the Applicant’s evidence attributed to Mr Hernandez’s view of the PIP and that effectively she did not deserve this performance review but he would use it to transfer her away from Ms Coleman as he saw the Applicant was a very good support worker. This transfer was implemented. This evidence was not countered.

[196] The Applicant was very committed to the work undertaken at the house she was transferred to. This was known to be the case. She was particularly committed to the care of the young Aboriginal boy at this new house and had done well with advancing his development and settling him into this house. The Applicant’s allegations that Ms Coleman had bullied her at the time of that PIP resurfaced when the Applicant became aware that the child at the house she had been assisting, was to be moved and her team at the house was to be replaced by all male team and it was proposed she would be moved to another house, possibly Mareeba, and under the supervision of Ms Coleman. This caused the Applicant to send her email of 24 June (as previously set out in this decision).

[197] In further summary terms, the evidence of Ms Coleman was discredited when she indicated she could not recall this particular email. This email alleged the further bullying of the applicant by Ms Coleman. The email was also sent to the cultural specialist and to Ms McHugh. There is no doubt that she would have recalled this email and the allegations made against her in this email. The importance of this email is significant, as it represented the matters that Ms Coleman was put on notice of on her return and that she herself would have to clarify or resolve with the Applicant. What was evident is that these issues that should have been and could have been the subject of one on one discussions to alleviate any concerns and defuse any emotions that the Applicant may have (given the decisions that had been made to move the boys that were in her care without advising or consulting her, and that also it was proposed that Mareeba might of been one of the houses she would be move to). This new house was under the supervision of Ms Coleman and Mareeba is located some 64 kilometres from Cairns, these were matters that it could have been anticipated would raise concerns as set out in the Applicant’s letter.

[198] Ms Coleman was aware that the Applicant was very concerned and agitated about the issues as per this email but also as Ms Coleman had been sitting next to Ms Lal when the Applicant made the call and the Applicant indicated to Ms Lal that she would speak to Ms Coleman about the matters, clearly this was the background to the ‘sort out’ reference. This call is the subject of the first allegation where it was alleged the Applicant referred to her intent to ‘sort out’ Ms Colman with regard to these issues.

[199] There was a range of references to how the words ‘sort out’ were used. The employer’s version was the words ‘sort out’ were used as a threat by the Applicant to Ms Coleman. The Applicant denies such and it does not reconcile that the Applicant was engaged in this alleged intimidation. There was no immediacy to Ms Lal or Ms Coleman dealing with an alleged threat. The reference to ‘sort out’ from this phone call was that the Applicant had a range of issues that she was aggrieved about and required information to consider.

[200] These matters were dismissed, and the process allowed to move forward to be dealt with at a public team meeting. The first allegation was not made out, that the Applicant issued a threat to Ms Coleman in the phone call to Ms Lal, it was reasonable that she wanted to ‘sort out’ where and who she would be working with and which children were in her supported care. It was clear that the Respondent was required to provide reasonable information in relation to the transitions occurring at the house. Associated with all the reasonable queries, the Applicant was forced to deal with the matters at a team meeting. As set out, she did not use racially divisive language, but demonstrated why she was concerned about these changes.

[201] For all of the aforementioned reasons, it is determined that the Applicant was unfairly dismissed, accordingly the application pursuant to s.394 of the Act is upheld. I consider the Respondent’s reasons for dismissal, in that it considered that the Applicant had engaged in the alleged misconduct is not substantiated. No loss of trust and confidence in returning to undertake her duties has been made out. It is appropriate, based on the evidence and submissions, to make an order pursuant to s.391(1)(a) for reinstatement to the position in which the Applicant was employed, immediately before the dismissal. In addition, an Order is made pursuant to s.391(2) of the Act, to maintain the continuity of the Applicant’s employment and to ensure the period of continuous service.

[202] The Applicant submitted that she had not received any employment income, in the interim period. In all of the circumstances, where it is considered that there is no valid reason for the termination, and it is considered that the termination was harsh, unjust and unreasonable, it is therefore considered appropriate to make an Order to restore the Applicant’s lost remuneration in terms of ordinary time wages for the period between the dismissal and the reinstatement, less the amount of the one week’s wages paid for wages in lieu of notice, that was paid on termination. The reinstatement is to occur in 14 days from the date of the decision, and to be implemented with continuity of service and employment. The payment of the wages as set out is also to occur within 14 days from the date of this Decision.

[203] I Order accordingly.

COMMISSIONER

Appearances:

Mr Mark Ascione, Solicitor, for the Applicant
Mr Troy McKernan for the Respondent

Printed by authority of the Commonwealth Government Printer

1 Paragraph 275 to 281 of the transcript.

2 Transcript of proceedings, PN 201 - 240

3 Edwards v Justice Guidice [1999] FCA 1836

4 King v Freshmore (Vic) Pty Ltd (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) at para. 24

5 Paragraph 1349 to 1357 of the transcript.

6 Paragraph 1959 to 1973 of the transcript.

7 Paragraphs 1078 to 1089

8 Paragraph 1348 to 1374 of the transcript.

9 [2015] FWC 1929.

10 (1959) 101 CLR 298

11 (1998) 84 IR 1

12 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192

13 Paragraph 1606 to 1608 of the transcript.

Miss Sarah Addo v Safe Places Community Services Ltd

[2020] FWC 3858

22 JULY 2020

DECISION

INTRODUCTION

BACKGROUND

RELEVANT LEGISLATION

SUMMARY OF THE APPLICANT’S MATERIAL

APPLICANT’S SUBMISSIONS IN REPLY

SUMMARY OF THE RESPONDENT’S ARGUMENTS

SUMMARY OF EVIDENCE ON BEHALF OF THE RESPONDENT

CONCLUSION