Mrs Julie Edmonds v Telethon Speech and Hearing Centre for Children WA (Inc) T/A Telethon Speech and Hearing

[2014] FWC 5124

[2014] FWC 5124 [Note: An appeal pursuant to s.604 (C2014/6541) was lodged against this decision - refer to Full Bench decision dated 23 December 2014 [[2014] FWCFB 8531] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Mrs Julie Edmonds
v
Telethon Speech & Hearing Centre For Children WA (Inc) T/A Telethon Speech & Hearing
(U2013/11905)

COMMISSIONER CLOGHAN PERTH, 5 SEPTEMBER 2014

Unfair dismissal.

[1] On 25 July 2013, Mrs Julie Edmonds (Mrs Edmonds or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from Telethon Speech & Hearing Centre For Children WA (Inc) T/A Telethon Speech & Hearing (TSH or Employer).

[2] The application is made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] In response to the application, TSH asserted it is not a national system employer and consequently Mrs Edmonds was not a national system employee to whom the unfair dismissal provisions of Part 3-2 of the FW Act apply.

[4] The Employer’s jurisdictional objection was dealt with by written submissions and I issued a Decision on 12 February 2014 [2014] FWC 1037. I found that the TSH was a national system employer within the meaning of s.14(1) of the FW Act.

[5] Directions were issued to deal with the substantive issue of whether the dismissal was unfair. At the hearing on 15 May 2014, I determined that the parties were not adequately prepared and the hearing was adjourned to enable further mediation, and if that failed, the preparation and exchange of witness statements for a further hearing.

[6] At the hearing on 1 July 2014, Mrs Edmonds represented herself. Mr Paul Higginbotham, former Chief Executive Officer (CEO) of TSH (November 2004 to January 2013) and Ms Margaret Furphy, who is a client of Better Hearing Australia WA Inc (BHAWA), gave evidence on behalf of the Applicant.

[7] TSH was represented by Ms Tracy Bennett, Manager, Human Resources. Evidence for TSH was given by Ms Peta Monley, CEO since 6 May 2013.

[8] At the conclusion of the hearing, I reserved my decision. This is my decision and reasons for decision.

RELEVANT LEGISLATIVE FRAMEWORK

[9] There is now no dispute between the parties that Mrs Edmonds has properly made the application in accordance with s.382 of the FW Act. Accordingly, the relevant statutory framework for consideration is ss.385 and 387 of the FW Act.

[10] Section 385 of the FW Act sets out the meaning of unfair dismissal 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
(c) ...
(d) ...”

[11] The criteria for whether a dismissal was harsh, unjust or unreasonable can be found at s.387 of the FW Act and is as follows:

“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.”

RELEVANT BACKGROUND

[12] The level of antipathy between the parties appears to be in inverse proportion to the agreed statement of facts which was as follows:

“1. Ms Edmonds set up a Facebook Page for Better Hearing Australia WA Inc in 2011 whilst an employee of TSH using the trademarked branding of Better Hearing Australia Inc and with authority of the Employer.

2. Ms Monley was employed by Mr. John Baillie as CEO on TSH in May 2013.

3. Ms Edmonds was dismissed from TSH whilst on personal leave, via a letter sent to her home dated 4th of July.” 1

[13] Determining what was relevant and important to the proceedings, was made difficult by both parties submitting a large number of documents to which some reference was made but others, largely ignored. What appears to be relevant is as follows.

[14] On 1 September 2010, Mrs Edmonds commenced employment with TSH in the part-time position as Manager, Better Hearing WA. On 21 May 2012, Mrs Edmonds’ employment with TSH was reconfirmed. On this occasion, the position is described as Manager - Better Hearing for the Telethon Speech and Hearing Centre. The commencement date of Mrs Edmonds’ employment is again 1 September 2010. 2

[15] Mrs Edmonds accepted reconfirmation of her employment on 26 June 2012. The confirmation and acceptance form, for both offers of employment, is notable for the “Confidentiality” notation at the foot of the page which relevantly reads:

“Confidentiality: In your role, you may become privy to confidential or sensitive information related to the Centre, its staff…At all time…you are required to treat such information with the utmost confidence…A breach of confidentiality or confidence will result in disciplinary action, which may result in termination of employment. This confidentiality clause survives the termination of employment.” 3 (my emphasis)

[16] On 4 July 2013, Ms Monley sent to Mrs Edmonds correspondence entitled “Termination of your employment”, which relevantly reads:

“I am writing to you about the termination of your employment from the position of Manager - Better Hearing (WA) with Telethon Speech & Hearing Centre for Children WA (Inc) (TSH/the Centre).

We have emails and documented evidence that highlights gross misconduct carried out by you over the last six (6) to eight (8) weeks, some of which has been carried out while on sick leave.

Some of the actions displayed by you are:

• deliberately acting in such a manner that breaches the Centre’s Code of Conduct;



• causing serious damage to the reputation of Telethon Speech and Hearing;



• causing potential risk to the health and wellbeing of persons receiving Better Hearing activities;



• causing potential risk to the health and well being of staff and Board members;



• refusing to carry out lawful and reasonable instructions that are consistent with your contract of employment;



• unacceptable use of the TSH computer.

In the circumstances our continued employment during a notice period would be unreasonable and damaging to the reputation of the Centre. We consider that your actions constitute serious misconduct warranting summary dismissal.” 4

[17] At the risk of offending both parties, I cannot think of another word to sum up the background leading to Mrs Edmonds’ dismissal except for “ludicrous”. For this reason, I do not intend to set out the rich tapestry of the employment relationship but examine the relevant threads leading to the dismissal. It is not my role to be the arbiter of who is right or wrong with respect to many of the allegations and counter allegations since 2010. In this respect, I agree with the Employer that a significant proportion of the assertions made by the Applicant are not relevant to the reasons for dismissal. The many assertions, allegations and responses are demonstrative of a fractious and pugnacious employment relationship.

CONSIDERATION

[18] Section 387 of the FW Act sets out the matters which the Commission must take into account in determining whether a dismissal was “harsh, unjust or unreasonable”. In seriatim, they are as follows.

s.387 (a) - was there a valid reason for the Applicant’s dismissal?

[19] A valid reason for dismissal is one that is “sound, defensible or well founded and not capricious, fanciful or spiteful”. The authority for this approach is found in the often cited case of Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at page 373 which reads as follows:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly’.”

[20] A valid reason for dismissal attempts to balance, in a practical way, the needs of employees and employers.

[21] When the reason for the dismissal relates to the employee’s conduct, it is necessary for the Commission to determine, on the balance of probabilities, whether the alleged conduct occurred, and if so, whether it was a sufficient reason for termination 5.

[22] Mrs Edmonds was summarily dismissed on 4 July 2013. Accordingly, it is necessary to consider the meaning of serious misconduct in the Fair Work Regulations 2009 which is relevantly defined at 1.07 as follows:

“1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) ...

(ii) ...

(iii) ...

(b) ...;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4) ...

(5) ...”

[23] Notwithstanding, the misconduct may have resulted in summary dismissal, the test remains the same, that is, was the decision to terminate the employee’s employment, “sound, defensible and well founded”.

[24] In the letter of termination, TSH refers to Mrs Edmonds’ conduct over the previous 6-8 weeks as the reasons for her dismissal. I now turn to that conduct.

Funding, production and ownership of DVD “Understanding Hearing Loss”

[25] Put briefly, the background to the conduct which led, in part, to Mrs Edmonds’ dismissal is that she entered into a contract with Ailee Louise Film to produce a DVD entitled “Understanding Hearing Loss” at a total cost of $8,585.20 which was the subject to two invoices. The invoices were paid on 7 May and 26 June 2013.

[26] At first blush, the production of such a DVD for TSH does not seem remarkable. However, the manner in which the DVD was produced, funded and “owned” indicates why the Employer had concerns with Mrs Edmonds’ conduct.

[27] On 9 May 2012, the Disability Services Commission of Western Australia (DSC) varied its service agreement with TSH by $57,785 in non-current funding. The funding required the production and distribution of three (3) DVDs in the areas of fire safety; first aid and lip reading education for the deaf and hearing impaired. Mrs Edmonds, in her position as Manager, Better Hearing, had the responsibility of discharging the variation to the TSH service agreement and production of the DVDs.

[28] Mrs Edmonds had an “Understanding Hearing Loss” DVD made with funds from the $57,785 received from DSC. I shall refer to Mrs Edmonds’ explanation for her actions later in the Decision.

[29] The persons filmed in the making of the DVD had to give their consent to the footage being used in the making of the film. The Employer provided, in evidence, 23 Release Forms in which each person gave “consent to be filmed by Ailee Taggart from Ailee Louise Film and Better Hearing Australia (BHA). The footage is to be utilized in the making of the film Understanding Hearing Loss…I authorize Ailee Taggart, working under contract to Better Hearing Australia to record…And I further agree to authorise Ailee Louise Films and Better Hearing Australia to retain recordings of my face, voice, actions, performance or commentary used in this production in perpetuity” 6 (my emphasis).

[30] Prior to the making of the DVD, Ms Taggart emailed Mrs Edmonds seeking confirmation, among other things, that the contract was with “Julie Edmonds from Better Hearing Australia”. A short time later, Mrs Edmonds responded “fine” and requested the first invoice 7. Further, Mrs Edmonds canvassed Professor Harvey Coates AO on whether he would be prepared to take part in an interview as part of the DVD. The email is headed “DVD for Better Hearing Australia” and advises Professor Coates that the DVD will be a “Better Hearing Australia DVD Resource”8.

[31] From the documentary material submitted in these proceedings, it is readily recognisable that Mrs Edmonds puts forward and affirms that the DVD, “Understanding Hearing Loss” is for BHA.

[32] I now turn to the issue of why the additional video, Understanding Heading Loss, was produced in the first place. Mrs Edmonds claims that the Request for Proposal (RFP) was in the name of BHAWA. I have only been given the cover sheet in which the name BHAWA appears. However, the RFP cover page also has the BHA logo on it and the words “Affiliated with Telethon Speech and Hearing”. Notwithstanding the RFP cover page, the RFP relates to a service agreement between DSC and TSH. It is the service agreement that matters, not what is on the cover page of the RFP.

[33] Mrs Edmonds states in her Statement of Facts that Mr Higginbotham authorised the production of the additional DVD “Understanding Hearing Loss”. However, it goes much further, “I had an Agreement with Ailie Louise Films for a BHAWA DVD Resource, all participants agreed to be in a BHAWA DVD Resource. The DVD’s (sic) were to be BHA Resources, to be distributed by BHA, and funded through the BHAWA DSC Application. The DVDs were to have no connection with TSH” 9. Mrs Edmonds seems to adopt the view that what she asserts is a fact; it ignores the basis that funding was approved by DSC to TSH for the production of three (3) DVDs. I note Mrs Edmonds’ use of the personal pronoun when she states “I had an agreement...”. Mrs Edmonds’ agreement with others, or what she considers appropriate, is irrelevant - the Applicant is an employee of TSH; she is not an employee of BHA.

[34] On three (3) occasions in cross examination, Mrs Edmonds was asked whether the correspondence to Mr Higginbotham entitled “Variation to Service Agreement” was authorisation for production of three (3) DVDs. On two occasions, Mrs Edmonds replied, “I don’t know” 10. On another occasion, she attempted to avoid answering the question. I found her answers incredulous.

[35] Mrs Edmonds gave oral evidence that she applied for the grant but did not have anything to do with the funding agreement. However, the Applicant ultimately agreed that the funding for the Understanding Hearing Loss DVD was part of the variation to the service agreement between TSH and DSC 11.

[36] I now turn to Mrs Edmonds evidence that the DVD “Understanding Hearing Loss” was “authorised” by Mr Higginbotham who was the CEO at the time. The context of Mr Higginbotham’s “authorisation” is somewhat different to Mrs Edmonds’ version of events. Mr Higginbotham gave evidence, “my only recollection is that I did say to you [Mrs Edmonds], go back to the commission [DSC] and tell them what you’re planning, and if it is not in breach of what they want, then it seems to me to be a good deal to get four for the price of three” 12. This evidence was not contained in his written witness statement. However, I am not surprised that this direction was given by Mr Higginbotham when dealing with a government service agreement.

[37] Mrs Edmonds did not provide any evidence of approval by DSC as directed by Mr Higginbotham, for the production of the additional DVD, Understanding Hearing Loss.

[38] I now turn to the “ownership” issue of the DVD, Understanding Hearing Loss.

[39] Mr Higginbotham’s written evidence is that the “affiliation” of the Western Australian Branch of Better Hearing Australia took place under his period of time as CEO. Mr Higginbotham also describes the affiliation as being “auspiced” 13 by TSH.

[40] Neither party provided a copy of the constitution of the Better Hearing Australia (WA) Inc.

[41] However, as part of these proceedings, I do have a copy of the Constitution of the TSH which refers to Better Hearing Australia (WA) Inc and its members. From 2010 it would appear that members of BHAWA ceased and existing memberships were absorbed into TSH. I also note that Mrs Edmonds did not contest the Employer’s response to her statement of facts that the Board of BHAWA and all membership and assets were transferred to TSH in 2010 14.

[42] Notwithstanding the lack of documentation regarding the rules of association for BHA or BHAWA, there is no evidence which demonstrates that BHA or its branch BHAWA, authorized the production and procurement of a DVD entitled “Understanding Hearing Loss”.

[43] However, I find that on 9 May 2012, the Chairperson of the DSC advised TSH of approval of non-recurrent funding of $57,785 for three DVDs to be produced by BHAWA - none of which relates to “Understanding Hearing Loss”. The funding is clearly from the DSC to TSH pursuant to a variation of its service agreement.

[44] Further, I find that the “Release Form” incorrectly refers to Aillee Taggart working under contract to BHA and that persons involved in the making of the video giving their consent to BHA.

[45] It is reasonable to ask why correspondence to Aillee Taggart and the release form were referenced to BHA and not TSH. In my view that answer, most probably, lies in Mrs Edmonds role of Vice President - Better Hearing Australia National Board and her role with the BHAWA. However, I repeat, Mrs Edmonds is not an employee of these organisations.

[46] Mr Higginbotham’s oral evidence is that TSH and BHAWA amalgamated. Put shortly, BHAWA “had effectively become part of TSH” 15. Most probably the better description is that TSH had (as it put in the advertisement for Mrs Edmonds’ position) “taken over” BHAWA.

[47] I now turn to the issue of the “Release Form” with reference to BHA. According to Mrs Edmonds, Ms Furphy created the form 16. In the first instance, this seemed strange to the Commission that a client would create such a form. This was confirmed in evidence by Ms Furphy who clearly stated that she did not create the “Release Form” and added “that it would have been quite wrong for me to create it”17. I have no reason to doubt the truth of Ms Furphy’s evidence, and accordingly, Mrs Edmonds’ evidence cannot be correct.

[48] While authorship of the Release Form is not certain, I find, on the balance of probabilities, that Mrs Edmonds, as the TSH contact person for the production of the three (3) DVDs, had an input into its creation, and if she did not, did not take any action to remedy the assertion that the film producer was working under contract to BHA.

[49] It would appear that Mrs Edmonds has failed to distinguish between her role as an employee of TSH and her role and association with the boards of BHA and BHAWA. An employee can wear different “hats” but in this case, there should not have been a conflict of interest. As an employee of TSH, she was charged with producing three (3) DVDs as part of a service agreement with the DSC. If she considered that a fourth DVD advantageous, she should have obtained the necessary approval from DSC, and subsequently, provided that to Mr Higginbotham or Ms Monley as authorisation to occupy her work time, as a TSH employee, on a further DVD. Although Mr Higginbotham claims ownership of the DVD is a “grey” area, I have no evidence to say that it belongs to BHA or BHAWA.

[50] On 23 July 2013, TSH received correspondence from the BHA National Board, of which Mrs Edmonds is Vice President, which relevantly states:

“The Better Hearing Australia DVD Resource “Understanding Hearing Loss” is not a stand alone DVD under Contract DSC 0742011D. Contract DSC 0742011D did not include this resource. This resource was based on an existing BHA DVD resource owned by Better Hearing Australia.” 18

[51] The BHA National Board seek the return of the DVD “within 7 days” 19.

[52] On the documentary evidence provided to the Commission, the DVD “Understanding Hearing Loss” was funded pursuant to DSC 0742011D. Further, Mrs Edmonds and Mr Higginbotham’s oral evidence, and the Employer’s evidence, confirm that the DVD was created pursuant to DSC 0742011D.

[53] The BHA National Board is correct that the DVD “Understanding Hearing Loss” was not included in the production of this DVD - and that is the very heart of TSH’s complaint regarding Mrs Edmonds’ conduct.

[54] The express provisions of Mrs Edmonds’ employment are contained in her contract of employment. However, Mrs Edmonds has an implied duty of good faith in carrying out her duties. The duty of good faith is towards her employer - TSH.

[55] Mrs Edmonds eventually agreed, in cross examination, that the funding for the DVD came from the variation to the service agreement between DSC and TSH. Accordingly, I have no alternative to find that her action to portray in a contract with the film producer and inaction with the “Release Form”, that ownership of the DVD was for BHA was knowingly and reckless. The gravity of this action is all the more greater because the funds being used to produce the DVD had been provided to TSH by DSC for delivery of DVDs which did not include “Understanding Hearing Loss”. For Mrs Edmonds to adopt such a course of action, without the express permission of DSC, possibly put TSH’s service delivery arrangements at risk, both at that time and in the future. The actions also had the potential to damaging TSH’s reputation. For these reasons, I find that in conducting herself in the way she did, Mrs Edmonds did not exercise the appropriate care and good faith in the performance of her duties.

Refusal to carry out lawful and reasonable instructions

[56] On 26 February 2013, Mr Baillie who was the Chairman of the TSH Board and CEO following the departure of Mr Higginbotham wrote to Mrs Edmonds directing that she meet with him on the next working day following receipt of the correspondence.

[57] Mr Baillie states in his correspondence to Mrs Edmonds that both he and Ms Pinch, the then Manager, Human Resources, had been attempting to meet with the Applicant during the past two (2) months. Mr Baillie advises that the purpose of the meeting is to “discuss the portfolio of activities that you are responsible for. Similar meetings have been held with all direct reports to the office of Chief Executive” 20.

[58] Mr Baillie concludes by saying that if Mrs Edmonds chooses to ignore the direction, it will be considered a refusal to follow a lawful direction and she will be issued with a first warning.

[59] Mrs Edmonds responds on 27 February 2013 and begins with the words, “I was disappointed to receive your letter of demand to my home yesterday, whilst on sick leave”.

[60] Mrs Edmonds claims she has no knowledge of meeting requests over the preceding two (2) months and requests that Mr Baillie “send me today, copies of the 2 months of requested meetings from yourself and Ms Pinch ignored”. Mrs Edmonds expresses her concerns with allegations of ignored meeting requests and a threat to her employment (presumably the first warning) while on sick leave. Finally, Mrs Edmonds states, “I am concerned with your request for me to telephone your mobile from my personal phone” 21 (my emphasis).

[61] If such a response did not make clear how Mrs Edmonds considered her employment relationship with the Chair/CEO, she concludes her reply with the following:

“In 2012 I was advised by the CEO my direct report was the Commercial Manager. I have received no communication from yourself that my direct report has changed. Your letter states remind you that your direct reporting line of responsibility to myself as Chief Executive Officer. A copy of your previous advice to me re change of my direct report would be helpful to my understanding of this statement” 22(my emphasis).

[62] While there are a number of factors which led to Mrs Edmonds’ summary dismissal, this response reflects her disdain and disregard for the employment relationship. Mrs Edmonds’ correspondence is scoffing in tone and colloquially could be described as “up you”.

[63] The fact that Mrs Edmonds was on sick leave is not a mitigating factor especially given her senior position and the recipient being the Chairman of the Board and CEO.

[64] Even if sick leave made Mrs Edmonds unable to attend the meeting with Mr Baillie, I find the totality of her correspondence evinces an intention of the Applicant not to be bound by the normal obligations and activities of a senior manager and employee of TSH.

[65] I now turn to another matter regarding Mrs Edmonds’ unwillingness to obey reasonable instructions.

[66] Ms Monley commenced as CEO on 6 May 2013.

[67] Ms Monley met with Mrs Edmonds as part of her induction program on 23 May 2013. During this meeting, Ms Monley requested the information on the number of clients being serviced as part of TSH contracts with DSC. Ms Monley referred to a reconciliation report in which TSH was contracted to provide 2,200 places but, as far as she could determine, only 90 clients were being seen. Ms Monley’s written witness statement states, “...I asked Mrs Edmonds for a list of clients receiving services on a number of occasions and also directed some staff members to seek this information. The responses ranged from ‘I am working on it’ to the information being kept at home...I met with Mrs Edmonds again on 18 and 19 June...and again asked for details...without success.” 23

[68] Further, Ms Monley gives evidence, “DSC sought a meeting with me on the 18th June as they were concerned that the number of clients being seen had dropped and that we were not meeting our contractual obligations”. 24

[69] Mrs Edmonds did not attend a scheduled meeting with Ms Monley on 24 June 2013 as she was not at work. On 25 June 2013, Mrs Edmonds advised Ms Monley that she would be on sick leave for two weeks.

[70] Mrs Edmonds adopted the view in cross examination of Ms Monley by providing an explanation to Ms Monley’s witness statement. The explanation was not a question but a statement to Ms Monley. As to Ms Monley’s evidence regarding requests from others, Mrs Edmonds’ statement was “I have no recollection of others asking me” 25. Secondly, Mrs Edmonds explained that she did not keep the records but in the same sentence stated, “those records were part of ACDC that was done annually, and I gave those figures and those names annually to that Telethon Speech Hearing”26 (my emphasis).

[71] Mrs Edmonds, it appeared, completely overlooked the incompatibility of Ms Monley’s written evidence, her “explanation”, and finally, the question which she put to Ms Monley “why didn’t you ask them?” 27. Instead of responding to a reasonable request from Ms Monley, Mrs Edmonds ignored it even though she could have set out what she said in these proceedings and complied with the request.

[72] Mrs Edmonds had the ability to respond to her CEO and others, but chose not to do so. I find nothing unreasonable about Ms Monley’s request which became more compelling after her meeting with DSC. Further, I find that Ms Monley’s evidence was not disturbed in cross examination, and consequently, find that Mrs Edmonds again adopted a view that directions or requests from the Employer to do something, were entirely at her discretion.

Unacceptable use of the TSH computer system

[73] On 27 May 2014, while unfit for work, Mrs Edmonds sent an email to a Ms Gibson regarding an upcoming Cabaret. While the Cabaret was unrelated to TSH, it was being held in association with the Deafness Council WA. This is one of a number of emails relating to the Cabaret which were deleted by the Applicant. The Employer alleges that these actions are in contravention of its Email, Internet and Other Social Networking Sites Policy.

[74] As is always the case with policies which are broad in application, it appears that Mrs Edmonds is in breach of the Email, Internet and Other Social Networking Sites Policy as she is engaged in activities other than the business of TSH. Further, it is alleged that Mrs Edmonds was in breach of the Policy by not using the computer systems of TSH in a responsible and professional manner.

[75] While I adopt a neutral position regarding these allegations, there is force in the Employer’s argument that these activities are all the more serious because they were carried out when the Applicant was unable to carry out her duties as an employee; I find accordingly.

[76] Ms Monley gives written evidence that on 4 July 2013 she became aware that Mrs Edmonds sent a false and misleading email to 389 recipients including the media 28.

[77] Despite my bringing this specific reason, among others, to Mrs Edmonds’ attention, she did not cross examine Ms Monely on this evidence.

[78] I find that Mrs Edmonds, while on sick leave, took it upon herself to send out 389 emails to inform the recipients of a decision of the TSH Board which was misleading in nature.

Department of Commerce communication

[79] While on sick leave, Mrs Edmonds sent an email on 25 June 2013 to Mr Greg Goad, Executive Officer (Associations), Consumer Protection, Department of Commerce.

[80] The email commences, “I am contacting you in my position of Vice President of the National Better Hearing Australia Board. You may recall we have had previous contact regarding the Board of Telethon Speech and Hearing (TSH)” (Mrs Edmonds’ emphasis, not mine).

[81] An indication of the morass of the employment relationship is contained in the following comments in Mrs Edmonds’ email to Mr Goad, “as the WA Committee of BHAWA, using the national branch of BHA, the TSH Board are accountable to the National BHA Board of which I am Vice President”. Put simply, Mrs Edmonds is expressing the view, indirectly, that although she is an employee of TSH, her employer’s Board (TSH) is accountable to her, in part, because she is Vice President of BHA. I am not required to make a determination of whether Mrs Edmonds’ contention is correct or not, but it is another example of how Mrs Edmonds perceived her relationship with the Employer.

[82] In the email, Mrs Edmonds traverses a number of issues involving BHA, BHAWA and TSH. One issue put to Mr Goad reads, “several questions...regarding serious financial issues require addressing, including TSH’s refusal to pay BHAWA invoices, withholding BHAWA funds, TSH advice that BHAWA allocated funds have been spent on TSH areas at the Centre, TSH cheques distributed, not signed by BHAWA Treasurer and using Better Hearing Association”  29.

[83] Mrs Edmonds concludes “...Disability Services Commission in WA indicated that the Department of Commerce could be approached for assistance. Are you able to assist with an investigation into the amalgamation and demerge with return of funds. Of importance to us is possible breaches of the Act by the TSH Board/BHAWA Committee” 30.

[84] Mrs Edmonds concludes that she has the authority of the Chair to act on behalf of the BHA National Board in WA.

[85] To summarise, Mrs Edmonds, while on sick leave from the Employer, utilised her work [TSH] email address to send correspondence to a State government agency which is headed “Breaches of the Act by Telethon Speech and Hearing Board” which airs internal issues, seeking for that agency to investigate her employer for possible breaches of the Act”, “demerge” the amalgamation of both TSH and BHAWA and seek the return of funds to BHAWA. Mrs Edmonds may argue that she carried out this conduct as Vice President of the BHA National Board; I am not persuaded by such a proposition.

[86] Mrs Edmonds’ letter of termination refers to her breach of the TSH Code of Conduct (Code). The Code gives guidance in areas where staff have to make “personal and ethical” decisions. The Code indicates that serious breaches may lead to disciplinary action, including dismissal. 31 Mrs Edmonds’ contract of employment refers to the need for confidentiality.

[87] The Code provides that where there is potential or actual conflict of interest, the onus is upon the employee to notify their supervisor. This is indicative of a cautious approach where there is a potential conflict of interest.

[88] Conflict of interest is particularly mentioned in the Code with regard to participation in external organisations. The release of confidential information and misuse of employer’s resources is also mentioned under the heading of “Participation in External Organisations”.

[89] While the Code is not exactly on point with regards to each and every aspect of Mrs Edmonds’ conduct, both her senior position and the matters she was conveying to a third party, must have made her realise that she could not take refuge under the title of “Vice President BHA” or a “self test” of her own conduct.

[90] It cannot be mistaken that Mrs Edmonds’ communication to the Department of Commerce was intended to cause harm to her employer. Not only was the communication breaching the confidentiality provisions of her contract of employment, but it was also putting Mrs Edmonds’ own interests as a member of the BHA Board ahead of the duty she owed as an employee to TSH.

[91] I find that Mrs Edmonds’ actions were serious misconduct which was wilful and deliberate, and inconsistent with the continuation of her contract of employment.

Interaction with other TSH employees

[92] While on sick leave, Mrs Edmonds sent a series of emails to various persons employed by TSH which in tone are threatening and dictatorial. The emails are all the more bizarre because they refer to herself being on sick leave and as an employee of TSH. The nature of the emails required Ms Monley to advise employees to be “reassured TSH defend any action she [Mrs Edmonds] or anyone else takes against you” 32.

Petition

[93] On 7 June 2013, Mrs Edmonds forwarded an email to Mr Clarkson entitled “Call for Enquiry and De-merge” in which she states, “I have attached the secret document for you to sign - see if anyone else is concerned about us and may want to sign too...BHA Branches nationally are sending a letter to Disability Services Commission stating their concerns and requesting a de-merge...Hopefully you can sign and scan and send back to me...” 33

[94] As an employee of TSH, Mrs Edmonds sent an email on 10 June 2013 in which she advises the recipient “we have started up a petition stating we want to de-merge from TSH and be an organisation on our own, we can sign it tomorrow”. 34

[95] While it may appear old fashioned, an employee has an implied duty of good faith and fidelity to their employer. These emails are demonstrative of Mrs Edmonds using the employer’s communications system in a way which was contrary to TSH’s interests, if not, harmful.

[96] What was more alarming was Mrs Edmonds’ response in cross examination when asked whether she sent the emails. It was:

“...I am not going to say yes or no to any of the emails after I saw what was happening. You have to give me an IT specialist to say that you haven't tampered with any...” 35 (my emphasis)

[97] When asked:

“But you do acknowledge that you did send this petition around to clients?---I gave it to who asked for it and who requested it be made.

And did you obtain your employer's permission before sending out this petition?---At that particular time I don't think I had an employer. I think I didn't know who I was reporting to.

Did you receive permission from anyone at Telethon Speech and Hearing before sending out this petition?---I don't recall because I am not sure who would have been running Telethon Speech and Hearing at that particular time.” 36

[98] This exchange in cross examination is illustrative of how Mrs Edmonds saw her role and responsibility as an employee - and as a witness. Mrs Edmonds was not deceptive, she just could not bring herself to think of her actions as harmful to the employment relationship. Regretfully, I find that Mrs Edmonds did not consider herself accountable as a witness in the Commission in the same way she did not think she was accountable to the Employer towards the end of the employment relationship.

[99] Kirby J in Concut Pty Ltd v Worrell [2000] HCA 64 (Concut) considered the issue of an employee who was summarily dismissed. The employee was formerly employed in a responsible and senior management position. The Queensland Court of Appeal held, by a majority, that although the misconduct was established, the employer was not, in law, justified in summarily terminating the employee’s services as it did (para 47). The High Court reversed this decision.

[100] The circumstances of the misconduct in Concut are not relevant for my purposes but Kirby J’s exposition of the applicable law is very helpful. With respect, I reproduce point 3 of the 5 legal propositions he sets out, omitting footnotes:

“3. The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust. At common law:

‘[c]onduct which in respect of important matters is incompatible with the fulfilment of an employee’s duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal...[T]he conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises.”

[101] In Serventi v John Holland Group Pty Ltd, Magwick J in the Federal Court defined summary dismissal as follows:

“An employer is entitled to summarily dismiss an employee for serious and wilful misconduct. Such misconduct must be of a kind that, as a practical matter, it is likely to make maintenance of the contract of employment impracticable.” 37

[102] Mandy J in the Victorian Supreme Court in Sent v Prime Life Corporation Ltd stated:

“Serious misconduct in this context has been held to include conduct, in relation to important matters, that constitutes a repudiation of or is incompatible with or repugnant to the central obligations of an employee”. 38

[103] Having considered the above case law and the evidence in these proceedings, I find that the actions of Mrs Edmonds justified summary dismissal. Mrs Edmonds’ conduct towards the latter end of the employment relationship could only be described as prejudicial to the Employer, a refusal to obey reasonable instructions, misuse of the Employer’s property and a disdain or non-acceptance of her role as an employee with inherent obligations. This disdain continued for the Employer as she gave evidence in these proceedings.

[104] I find that TSH had valid reasons to terminate Mrs Edmonds. The reasons are sound, defensible and well founded.

s.387(b) - notification of the reasons for termination of employment

[105] The parties agree that Mrs Edmonds was advised by the Employer that she was dismissed by correspondence delivered to her home on 4 July 2013. There is no dispute that Mrs Edmonds was on sick leave, however, that did not stop Mrs Edmonds continuing to conduct herself in ways which led to summary dismissal.

s.387(c) - opportunity to respond

[106] Mrs Edmonds dismissal was summary and there was no opportunity to respond. The circumstances which led to Mrs Edmonds’ dismissal were serious and ultimately required prompt action.

[107] This application is a case where the Employer had made a definite decision to summarily dismiss Mrs Edmonds and, as I have found, for valid reasons. In the circumstances, providing Mrs Edmonds with the right to respond would have been a “sham” and inconsistent with summary dismissal.

s.387(d) - support person

[108] The nature of the dismissal did not require the presence of a support person.

s.387(e) - unsatisfactory performance

[109] Mrs Edmonds’ performance in the narrow sense was not raised in proceedings. In the broader sense, Mrs Edmonds’ performance relating to obeying lawful instructions, confidentiality, misuse of the Employer’s communications system and her words and actions are set out above and it is unnecessary to repeat them.

s.387(f) - size of enterprise

s.387(g) - Human Resources

[110] While observations can be made with respect to these criteria, they hold little relevance and weight to the application.

s.387(h) - other matters

[111] I am satisfied that there are no other matters involved in this application which require my consideration. While Mrs Edmonds made many assertions, particularly concerning the fractious relationship between BHA, BHAWA, TSH and various individuals, they do not go to the substantive reasons why she was dismissed.

CONCLUSION

[112] In conclusion, for the reasons set out above, I am satisfied that Mrs Edmonds’ dismissal from her employment was not unfair pursuant to s.387 of the FW Act. Accordingly, the application must be dismissed. An order to this effect is issued jointly with this Decision.

COMMISSIONER

Appearances:

J Edmonds, the Applicant.

T Bennett, on behalf of the Respondent.

Hearing details:

2014:

Perth

1 July.

 1   Exhibit R4

 2   Exhibit R2 (E)

 3   TSH bundle of documents 1-1(b)

 4   TSH bundle of documents 2-1(a)

 5   Brink v TWU PR922612 at paragraph [7]

 6   TSH bundle of documents 2-1(a) (10-32)

 7   Ibid (8) and (9)

 8   Ibid page 33

 9   Exhibit A2

 10   Transcript PN183 and PN186

 11   Transcript PN232

 12   Transcript PN272

 13   Exhibit A5

 14   Exhibit R3

 15   Transcript PN287

 16   Transcript PN190

 17   Transcript PN331

 18   TSH bundle of documents 2-1(a) page 38

 19   ibid

 20   A3(17)

 21   Exhibit A4

 22   Exhibit A4

 23   Exhibit R5

 24   Exhibit R5

 25   Transcript PN416

 26   Transcript PN418

 27   Transcript PN420

 28   Exhibit R5

 29   TSH bundle of documents 2-1(c) 1-3

 30   ibid

 31   TSH bundle of documents 1-1(a) p13

 32   TSH bundle of documents 2.4

 33   TSH bundle of documents 2.3

 34   TSH bundle of documents 2-3(a)

 35   Transcript PN224

 36   Transcript PN225 to PN227

 37 [2006] FCA 1049 para 6

 38 [2006] VSC 445 para 17

Printed by authority of the Commonwealth Government Printer

<Price code C, PR553680>