Mrs Sandra Ward v West Australian Newspaper Limited
[2010] FWA 1785
•8 MARCH 2010
[2010] FWA 1785 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
West Australian Newspaper Limited
(U2009/14022)
COMMISSIONER CLOGHAN | PERTH, 8 MARCH 2010 |
Unfair dismissal remedy.
[1] This is an application by Ms Sandra Ward (“the Applicant”) alleging that she was unfairly dismissed from her employment at The West Australian Newspaper (“the Employer”) on Friday 13 November 2009.
[2] Ms Ward has made the application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) seeking an order for reinstatement to the position she held immediately before dismissal.
[3] The application was unable to be settled in conciliation and was subsequently referred to me for arbitration. Arbitration took place in Perth on 18, 19 and 22 February 2010.
[4] For the Applicant, Ms Ward was the only witness. The Respondent called evidence from Mr D Bignold, Sales Director; Mr D Thompson, Operations Manager; Mr A Sculthorpe, Agency Sales Manager (and Ms Ward’s immediate manager); Mr J Howell, Agency Account Manager; and Ms K Hughes, Human Resources Adviser.
[5] Having heard submissions, evidence and received a number of exhibits, I reserved my decision. In reaching this decision, I have considered all the material provided to the Tribunal.
BACKGROUND
[6] Ms Ward is 56 years of age and commenced with the Employer on 4 December 1989. I note that Ms Ward appears to have lived at the same address since commencing employment.
[7] For approximately the past five (5) years, Ms Ward has been an Advertising Agency Coordinator in the Employer’s Agency Division. Ms Ward occupied this position at the time of her termination of employment. Ms Ward’s salary and superannuation when dismissed was $54,370 per annum. As an Advertising Sales Coordinator, Ms Ward assists the Agency Sales Team with their administrative duties, liaising with clients, booking advertisements, creating expenditure reports and interacting with other areas of the Employer’s business.
[8] Ms Ward was described by the Employer as “diligent”, “highly efficient”, “respected by clients and team members alike” and had extensive client knowledge 1. Ms Ward was happy in her employment2.
[9] The Employer is a constitutional corporation and Ms Ward was a national system employee, within the meaning of the Act, at the time of her termination of employment.
[10] On 13 November 2009, Ms Ward received notice of her termination of employment from Mr Bignold on behalf of the Employer (see Attachment 1). The substantial parts of the letter of termination of employment are as follows:
• termination of employment was immediate;
• termination of employment “arises out of a complete loss of trust and a breakdown of the employment relationship”;
• the complete loss of trust and breakdown of the employment relationship was as a result of:
• Ms Ward deliberately deleting information (“notes”) from the Employer’s IT system relating to advertising clients; and
• which has the potential to seriously comprise (sic) the Employer’s ability to service those clients in a professional and efficient manner, as well as exposing the Employer to potential breach of contract; and
• the potential to harm the reputation and good standing of the Employer;
• Ms Ward admitting that she deleted “notes” relating to contracts;
• Ms Ward asserting that the notes were her personal “notes”;
• the Employer asserting that Ms Ward “must understand” that the “notes” are its property;
• Ms Ward’s conduct was “well outside” the Employee Code of Conduct;
• Ms Ward’s access to essential past and future advertising bookings;
• Ms Ward’s ongoing access poses a significant risk to the ongoing business of the Employer;
• in view of the Employer’s loss of trust and confidence in Ms Ward to perform her duties with the “best interest of the Company at heart” and breach of the Code of Conduct, termination of employment has to be immediate; and
• while Ms Ward’s behaviour was considered serious misconduct and summary dismissal was normal, she was given four (4) weeks pay in lieu of notice.
[11] For all that was spoken and produced at the hearing, this document is the most pivotal piece of information on which I have to determine whether Ms Ward was unfairly dismissed.
RELEVANT ISSUES FOR CONSIDERATION
Advertising Department Notes
[12] The Agency Sales Team consists of five (5) sales representatives, three (3) coordinators and one (1) manager. Mr Sculthorpe is the Manager and Ms Ward is one of the three coordinators. Each sales representative has a client list to sell advertising to and service.
[13] The Employer has an information technology system which was referred to in the hearing as the IBM system. The system has a number of functions. The system can show all past advertisement bookings, all future bookings, space orders, value of the client’s contract, commencement of the contract, spend to date, whether the client is under or over their expenditure limit and advertising rates in their contract. In short, it provides a complete billing history of the client advertising relationship with the Employer and other material.
[14] In addition, the system has what was referred to as command notes or F10 notes. For the purposes of this Decision, I will just refer to the “notes” function.
[15] The notes function enable all members of the Agency Sales Team to enter narrative. While the assessment of the value of these notes on the “notes” function varied, it became evident, particularly through Ms Ward’s immediate manager, Mr Sculthorpe, that:
- there is no instruction to staff how to record the notes:
- there is no structure around the nature of the information that is recorded;
- there are no guidelines to staff how to record notes;
- it is up to the initiative of the coordinator and sales persons “to fill them in as they see fit”; and
- there is no auditing of the accuracy of the notes placed on the system 3.
[16] Other witnesses for the Respondent gave evidence that:
- there is no checking of the notes;
- there is no process to ensure that the notes are not obsolescent; and
- there is no process to purge the system of notes that become old or useless 4.
[17] And finally, and most probably more importantly, in the words of Mr Sculthorpe, “…it’s not mandatory” for the sales representatives and coordinators to record notes for each client 5. Further, as a result of this matter, he stated:
“…by and large there’s a gaping chasm in the customer – in the content management system (“notes”) which this whole issue has verified and which I am in the process of remedying” 6.
[18] I now turn to the value of these notes to the Employer. It was described as the “lifeblood” for the sales team 7, “critical”8, “used extensive”9 and relied upon “heavily”10.
[19] In contrast, Mr Howell, who in my view, other than Ms Ward, is closest to the notes system, put a less hyperbolic and more realistic and practical viewpoint, when he described them as: “handy”, “make it easier”, “a starting point” 11. Again, in a genuine assessment, Mr Howell admitted that the notes are not always “hundred percent correct”12, the information on notes can be gained from other sources13 and that there is a practice of verifying the information on the system from other sources14.
[20] To complete the tapestry of the issue of the “notes”, Mr Thompson gave straightforward and honest evidence in the following exchanges:
“The notes could be put in anybody's shorthand, couldn't they, for their own use essentially?---Yes.”
“That's primarily why they're there, aren't they, for somebody's own use?---Yes.”
“Given that they're in shorthand and without any formal structure, would you agree with me that there is potential for those notes to be read by somebody else and misunderstood?---Potentially, certainly, yes.”
“The information that goes into those notes is not independently validated at the point in which it's entered, is it? Nobody checks to see what goes in?---Not at all. Is there a system somewhere for making sure that - or for monitoring any edits to the notes? Does anybody check the changes to them?---Not as far as I'm aware.”
“Does anybody check to make sure the information remains current?---No.”
“Does anybody routinely check what information is deleted?---No.”
“Is it the case, from your experience, that coordinators and reps can add and delete notes according to whether they see the notes as useful?---Yes.”
“That's the case. In your experience, has there ever been a circumstance where a rep has been disciplined or dismissed for deleting a note?---Not to my knowledge.”
“Disciplined at all?---Not to my knowledge.”
“You'd agree with me, wouldn't you, that if somebody was trying to cause damage to WA Newspapers commercially - to really cause a problem - that the easier way to do that would be to put misleading information in a note rather than to delete it?---Yes.”
“That would cause more harm, wouldn't it?---Yes.” 15
[21] Ms Ward has worked extensively within the IBM system since its introduction in 1989 and gave evidence that:
- anyone with access to Notes can add, delete or amend the content of entries made through Notes, including entries made by others. Ms Ward could not edit or delete other data stored on the IBM system (my emphasis);
- she used Notes to make her own notes about the requirements of higher volume clients;
- she made the notes in her own form of shorthand;
- she usually included notes about the rates that excluded GST because that was the way most of the clients she serviced worked. Most of the Respondent’s other departments worked with rates that included GST;
- the information set out in the notes is substantially, if not entirely, derived from the information set out in the client’s contract with the Respondent;
- the shorthand notes recorded in the Notes were often substantially repeated in entries to the booking system; and
- she kept a hard copy file which contained much, if not all, of the information she included in her notes.
[22] Ms Ward consistently and continually throughout her interview, and in the hearing, described the notes which she deleted as “personal notes”. In response to a question from myself as to why she described them as “personal notes”, Ms Ward responded as follows:
“Because it's always been regarded as your information, as personal notes, as - you can put anything in there that you wanted to; delete, change or edit. A lot of people don't even use the notes at the West. There's only a few that use it.” 16
[23] In cross-examination, Ms Ward gave evidence:
“So what part of that seems personal to you?---That my notes were personal; that they're my own notes, they're my own information.”
“But other people can edit them, you can edit other people's?---Yes, but I necessarily wouldn't touch other people's notes.”
“But you can do. You say in your witness statement that you can?---I could do, yes.” 17
[24] The notes which were deleted by Ms Ward from the system were as follows:
- Burgess Rawson
“01.07.09 new contract
Copy x linc syari jaques
$200,000 level
20% colour property
Mini spend $150,000 non surchargeable
M-f $36.90”
- BGC Blokpave
“NEW NAME BGC BRIKMAKERS ads transferred
Sat $48.40
Mon-fri $29.70
Copy bcy
Pro appts $30.10 sat $48.80
Colour 20$ spot 15%
Colour neg on big ads”
- Australand
“RIGHT HAND PAGE 15.07.08 RATE 34.20 M-F $55.80 SAT
FULL PAGES IN GENERAL NEWS $20,473.51
FULL PAGES OF PREFERREDS $55.80 + 20% COLOUR LOADING + PREF
PAGE LOADING
PROPERTY $36.60 + 20% COLOUR LOADING + $8.30 PROPERTY LOADING
BUSINESS RATE + 20% COLOUR LOADING + BUSINESS LOADING”
[25] After hearing all the evidence, it is understandable why Ms Ward would take the view that the information she kept on the system as her “personal notes”. However, the Employer stated that the hearing was not about the value of the notes which were deleted but, “about the destruction of the relationship of trust and confidence which must exist between an employer and an employee.” 18 This is a matter which I will address later in this Decision.
Process Leading to Termination of Employment
[26] Ms Ward was a member of the Agency Sales Team in November 2009. All clients of the Employer who booked advertising through advertising agencies were serviced by the Agency Sales team. In the weeks leading up to 9 November 2009, the Employer had made the decision to restructure and clients previously serviced by the Agency Sales Team were internally allocated to other teams, for example, real estate clients were reallocated to the Real Estate Team.
[27] The consequence of the internal reallocation meant a reduction in client base for each Agency Sales Team member. According to Mr Sculthorpe, the Agency Sales Manager, “certain members of the team feared that this would result in a perceived loss of prestige” 19.
[28] On 9 November 2009, Mr Sculthorpe emailed the Sales Team Coordinators, including Ms Ward, a list of clients who would no longer be serviced by the Agency Sales Team. While the email could have had greater clarity than “let’s talk about this please” 20, I am satisfied that it was intended to convey to the coordinators, including Ms Ward, the proposed reallocation of advertising clients.
[29] While the issue of the date of implementation, whether the list was final or not, and Ms Ward’s absence from a meeting (“manning” the phones) on 10 November 2009, were raised at the hearing, in my view, nothing turns on those events.
[30] Ms Ward indicated her unhappiness at the reallocation of clients to Mr Sculthorpe and other members of the Agency Sales Team. I think the words of Mr Howell most probably sum up the context of this unhappiness when he states:
“There was some tension among the coordinators because they may have looked after a particular account for some time and felt that they owned them.” 21
[31] On 10 November 2009, Ms Ward discussed with Mr Howell the reallocation of clients and Ms Ward expressed the belief that “if someone else took over an account that she had dealt with for some time, they would be getting a ‘free ride’” 22. While there was a contest whether Ms Ward used the actual words “free ride” or not, and that the comment related to the amount of advertising business and not the notes, the sentiments are illustrative.
[32] In the same conversation, according to Mr Howell, Ms Ward stated, “I’ve deleted all the notes on the IBM system anyway. Stuff it, they can find out all the information themselves” 23. In cross-examination, Mr Howell conceded that Ms Ward did not use the “all” in the context of all of her notes in the IBM system, but the notes of the client which they were discussing at that time – CB Richard Ellis24.
[33] From evidence, it is also the case that Ms Ward told Judy Beck, another coordinator, that, “…if somebody else was going to look after my accounts, then they could make their own notes?” 25. It is clear, and by her own admission, Ms Ward deleted notes on the IBM system.
[34] Mr Howell relayed to Mr Wray, Retail Sales Manager for the Employer, the conversation he had with Ms Ward. Both employees took the view that it was necessary to report Ms Ward’s conduct to senior management. Mr Wray, who was not called to give evidence, had a discussion with Mr Bignold. Subsequently, Mr Howell met with Mr Bignold at approximately 3pm that day and relayed his conversation with Ms Ward.
[35] Mr Bignold’s assessment of what Ms Ward’s actions, as told to him by Mr Howell, were:
“severe and the apparent motive...very sinister. I was immediately concerned about the effect Ms Ward’s actions could have on WAN’s business.” 26
[36] Of all the Employer’s witnesses, it is easy to see why Mr Bignold is the senior. He is no “shrinking violet” and was forthright in his evidence and demeanour. In my view, having been told of the allegations, he made his own assessment of Ms Ward’s conduct and unless Mr Howell had fabricated the whole matter, everything else that would happen in the future would only go to support his assessment.
[37] What occurred subsequently is not in dispute and the Employer obtained printouts of the notes from the IBM system as at 25 October 2009 and 10 November 2009. In doing so, the Employer was able to determine what notes had been deleted.
[38] On 11 November 2009, Mr Bignold called Ms Katherine Hughes to his office to:
“discuss an issue where Ms Sandra Ward…had apparently intentionally and maliciously deleted client information from the IBM system.” 27
[39] I make two comments in relation to this evidence. First, it illustrates Mr Bignold’s forthrightness and decisiveness, and secondly, for some unknown reason Ms Hughes does not make any file notes on the discussion even though, on the following day, she creates a “File Note: Sandra Ward investigation and termination” 28.
[40] Ms Hughes made enquiries of Mr Howell, and although not contained in her “File Note” 29 on the investigation and termination of Ms Ward, she also contacted Mr Devereux, the Employer’s Business Systems Analyst30.
[41] On Thursday, 12 November 2009 at 8am, Ms Hughes met with Mr Bignold and Mr Thompson and Ms Turnbull, Call Centre Manager. I note again that Ms Hughes fails to make any mention of this meeting in her File Notes 31 on the investigation and termination of Ms Ward.
[42] In my view, the 8am meeting between Mr Bignold, Mr Thompson, Ms Turnbull and Ms Hughes is crucial. In the words of Mr Bignold, they met:
“…to ensure that we knew all the facts of the matter and to discuss what Ms Ward’s behaviour meant for the business of WAN. Ms Turnbull and Mr Thompson felt that they could no longer trust Ms Ward and that she was capable of causing additional damage to the business by, for example, deleting other notes or cancelling advertising bookings to clients’ accounts” 32.
[43] The tenor of that meeting can be described with the following exchanges of cross examination with Mr Bignold:
“So you were very ready to believe that Sandra Ward had done the worst, weren't you?---The thought had crossed my mind.” 33
“Well, it was more than that, wasn't it, because you'd said words to the effect on the day before that somebody had apparently intentionally and maliciously deleted client information?---Yes, that's right.” 34
“Wasn't it the case that you understood already that this was a pretty serious thing? ---There was a serious nature, yes.” 35
[44] For Mr Thompson, the 8am meeting was his first involvement in the issue and he was being “brought up to speed” 36. However, again in cross examination, the following was revealed about the tenor of the meeting:
“Based on that information, and without more, did you regard Ms Ward's employment as at risk at that point?---Yes.” 37
“You did?---Yes.” 38
“So the meeting that followed then was something that was potentially job threatening?---Yes.” 39
[45] Ms Hughes gave evidence at the 8am meeting as follows:
“We discussed Ms Ward’s continued employment, given the alleged serious breach of company policy and loss of trust in her.” 40
[46] Ms Hughes also mentions in her witness statement, and gave evidence, that there was discussion in relation to the possibility of transferring Ms Ward to a different section.
“However, concerns were expressed that Ms Ward would still have access to the sensitive client information in the IBM system and could potentially delete more information and cause further damage to the business.” 41
[47] Finally, and although it is not clear from evidence that it was the 8am meeting, it would appear that Ms Turnbull expressed the following view to the meeting as described by Mr Bignold:
“…Anna Turnbull had a very blunt approach. She basically said, you know - once she [had] seen the notes [deletion] the next morning she was of one opinion, that someone in her staff would be asked to leave the building straightaway…” 42
[48] The next event on the same day, at approximately 10am – 10:30am, was a meeting between Mr Bignold, Mr Thompson, Ms Hughes and Ms Ward. Various witnesses for the Employer agreed that it was “serious” 43 for Ms Ward, and they were considering termination of her employment. However, Ms Ward was not to be given any notice of the meeting to be held or its content. For Mr Bignold, he was of the view in relation to these matters:
“I don’t see the point.” 44
“It was not an option that we chose to take.” 45
For Mr Thompson:
“It never occurred to me.” 46
“I never even thought about that.” 47
“That thought didn’t occur to me, no.” 48
Ms Hughes, Human Resources Adviser took a different perspective:
“Why was it that she was given no notice of a meeting of such importance?---It was agreed that given the significant risk that she posed and maybe potentially posed that the meeting should be called as soon as possible and that we needed to investigate the claims as soon as possible.” 49
“…It was possible, yes, but we decided in the circumstances that the issue needed to be discussed immediately…” 50
[49] In these circumstances, the Employer is putting to the Tribunal that, having become aware sometime between lunchtime and 3pm on Tuesday 10 November 2009 one of its employees was engaging in “severe” and “very sinister” conduct, it did not consider it possible to give the employee notice of the meeting, and its content, because of the significant risk Ms Ward posed – which, as I have said, the Employer had become aware of nearly 48 hours earlier. In such circumstances, it is little wonder that the Applicant’s Counsel referred to the meeting as an “ambush” 51.
[50] Further, and as a matter of logic, the Employer did not consider advising Ms Ward that she could have a support person present during the meeting. In this respect, I find the following comments of Ms Hughes as illustrative of the overall approach by the Employer to the meeting:
“So it's entirely possible for you to have put Ms Ward in a position where she would have known what you were going to talk about - that's right, isn't it? ---We could have. Yes.”
“She would have been in a position to obtain support or representation if she'd wanted it?---She could have, yes, but she was also not denied that opportunity.”
“She didn't know that there was a big issue up for discussion, did she, before she got into the room?---No. She didn't, but at any point during the conversation she could have stopped.” 52
[51] The meeting was variously described by the Employer as a “conversation” 53 or “discussion”54 but in reality it was a disciplinary meeting with the Applicant. Present at the meeting were Ms Ward, and for the Employer, Mr Bignold, Sales Director; Mr Thompson, Operations Manager; and Ms Hughes, Human Resources Adviser. The meeting was held in the Boardroom and, whilst not knowing its importance in the organisation, it was described by Ms Ward’s Manager, Mr Sculthorpe, when attending a meeting of senior managers later on that day, in these terms:
“So when you went to that meeting, you said in your answer to Mr Blackburn, that you went into I think a large boardroom and were obviously nervous. Why was that?---Because I was concerned that I should be summonsed to a large boardroom.”
“It made you uncomfortable, did it?---Yes.” 55
[52] The meeting was led by Ms Hughes who admitted, in evidence, that she had no knowledge of how the IBM system worked until this issue arose 56 - that is, she had 24-48 hours understanding of the system. Mr Bignold does not use the system57 but was aware of its functionality58. Mr Thompson had used the “notes” functionality in his period of employment with the Employer59. Mr Bignold gave evidence that he was basically an observer at the meeting and made only one or two comments60. For this reason, the evidence of Mr Thompson and Ms Hughes is illustrative of the meeting.
[53] Mr Thompson’s evidence went, in part, as follows:
“The meeting then - your statement doesn't give a particularly detailed account of the meeting, so - just bear with me a moment. Was Katherine Hughes did most of the talking?---I believe so, yes.”
“She asked some general questions about deletion of information from the IBM system, didn't she?---Yes.”
“Did she tell Ms Ward that this was part of an investigation into alleged misconduct and that this might lead to the termination of her employment?---Not to my recollection.”
“In the course of it all Ms Ward answered the questions, and in the course of doing so, conceded that she'd altered the information or deleted some of the information?---Yes.
“She was able to tell you, when prompted, what information she'd deleted?---Yes.”
“Her response throughout was that she thought the information was personal information?---That was her response throughout, yes.”
“You gave evidence earlier that the shorthand notes that people write were primarily for their own use. That's right, isn't it?---Yes.”
“The explanation that Ms Ward gave was to the effect that these, she regarded as her personal notes, and that's why she felt free to delete them. That's right, isn't it?---That was her view, yes.”
“It's the case, isn't it, that Western Australian Newspapers simply had a different view?---Correct.”
“Was there any exploration of the possibility that Ms Ward had simply genuinely but mistakenly believed that she was entitled to delete the notes?---I guess given our viewpoint on the notes, no, that did not take place.”
“So no exploration of that possibility at all?---We discussed our viewpoint that customer-specific information was basically company information. Yes, it was being used for personal gain in the - I guess - time efficiencies of the role to get information into the system quite quickly.”
“There's information that belongs to the West that's deleted every day, isn't there? ---I would expect so.”
“Every email that sits on your system is a piece of West's information, isn't it? ---Yes.”
“And that's deleted. Nobody flinches. You have these notes are deleted on a regular basis and nobody flinches?---Deleted, house-kept, yes.” 61
[54] Ms Hughes’ evidence was, in part, as follows:
“So it's not unreasonable for Ms Ward not to have immediately jumped to the conclusion that you were asking about the command F10 notes, is it?---No.
“In fact, her answer to you initially was something to the effect of she didn't change the codes, wasn't it?---No. Her answer was that - my question was why she had deleted the information, and Ms Ward responded and said it was because someone else had changed the rep codes.
“So her connection with the deletions was to rep codes, wasn't it?---Her response was about rep codes. My feeling - that that was a justification for her deletion.
“The kinds of answers you got from Ms Ward - were they calm, considered, careful?---She took certainly minutes to respond - I mean, I guess much like I just did then. I took a couple of seconds to collect my thoughts and answer. I would say that Ms Ward did the same during the discussion.
“From your experience, did she evidence any signs of confusion?---She gave some blank looks to some questions that I asked, but generally throughout the conversation she looked like she understood. She responded immediately that she had deleted notes; they were personal notes; she knew immediately the note that I was referring to.
“And she immediately admitted having deleted some?---Yes.
“And she immediately said to you that these were personal notes?---Yes.
“At that point did you tell her that there was a possibility that she could be dismissed for this sort of behaviour?---Towards the end of the discussion I informed Ms Ward that there could be serious consequences for this behaviour. I outlined that that could be a formal warning or it could be termination of employment, and then I asked Ms Ward if she had anything else she wanted to add.” 62
“Once you explained what the notes were, she immediately said she had?---She said, "Yes, they were just personal notes."
“What did you understand her to mean by that?---I understood that she was referring to - she had made the notes herself; therefore they were her notes. I explained to Ms Ward that that was not the view of the company.
“So it was clear then that there was a difference of opinion about the importance of these notes and their retention?---No. What was clear was that the company viewed the notes differently to how Ms Ward viewed them.
“That's funny, I thought I just said that?---There was a part of your statement that I didn't agree with. We agreed that the company found the notes important but that Ms Ward thought they were only personal notes.” 63
[55] Ms Ward’s evidence confirmed the evidence given by the Employer that:
- she deleted information in the notes function of the IBM system; and
- she deleted that information because she considered them her own personal shorthand notes.
[56] There was evidence given regarding what the Employer characterised as excuses by Ms Ward, such as the sales representative codes, whether rates were GST inclusive or exclusive and the advertising rates. For the Employer, reference to these factors and others are intended to disguise the real reason, which was to make it difficult for the sales representative who took over Ms Ward’s client account. My view of the evidence given is that these issues arose during the meeting as part of the general discussion. The Employer gave evidence that Ms Ward took time to respond and having “blank looks” and generally was “confused” 64. I suspect Ms Ward was confused because Ms Hughes’ (who was leading the discussion) total experience and knowledge of the IBM system, was less than 48 hours.
[57] In my view, it is important for the person taking the lead in a disciplinary interview to have more than 24-48 hours knowledge of an IT system where the very misconduct complained of, relates to that system. This comment is not a criticism of Ms Ward, but a reflection on why the interview with Ms Ward was suboptimum for all parties concerned.
[58] For Mr Bignold:
“…on that basis [deletion of notes] you decided to terminate an unblemished 20-year career. Is that right?---No.” 65
“Okay?---On that basis, plus on the lack of candour and the lack of truthfulness from Sandra Ward in the interview. She refused to offer up an explanation. There was no candour at all. She was very candid with her answers and she basically wouldn't satisfy - well, she wouldn't offer any explanation. At that point in time we knew that we were going nowhere. There was no level of trust whatsoever and she committed - she actually assisted in our decision-making process” 66 (my emphasis).
[59] This response, apart from being contradictory, is again, in my view, reflective of a confusing interview with Ms Ward.
[60] In contrast, Mr Thompson, who was also at the meeting and whom, as I have previously said, gave honest and straightforward evidence, does not mention that Ms Ward was less than candid or untruthful at the meeting. Further, in his witness statement, he only mentions Ms Ward being untruthful in the context of a 5:15pm meeting with Mr Bignold and Ms Hughes – and it is not clear whether these are his words or general words spoken at the meeting 67.
[61] In examination in chief, Ms Hughes was asked why the decision was taken to dismiss Ms Ward. She responds:
“When we first - when David Bignold and I first discussed the issue he certainly impressed upon me that there was a significant risk to the business, the deletion of these notes, coupled with the potential risk for further deletion of notes and during the course of our investigation. Mr Sculthorpe raised the concept that perhaps Ms Ward could delete current bookings from the system, so could delete live adverts that were booked to go into the paper and that was a significant risk to the business that she certainly posed… she had deleted notes from, why she did...discuss also the possibility of moving Ms Ward to another position in another section but we decided that any position that we moved Ms Ward to, she would still have access to the IBM system. She would still have access to the Coyote booking system. So the risk that she posed wasn't going to be mitigated by moving her to a different section or a different position. In fact we couldn't identify any position within our business where Ms Ward wouldn't present a risk to the business. Based on that we truly felt there was no other option but to dismissed based on our lack of trust in her going forwards.” 68
[62] I highlight from this evidence the word “risk”. The Employer, as I am sure is aware, every organisation has risks and they are measured in terms of likelihood and consequences. At the time of making this assessment, it was clear as day to the Employer that Ms Ward’s intention was to make it difficult for whoever took over her clients. There was absolutely not a shred of evidence to suggest that Ms Ward would delete “current bookings” or “live bookings” from the advertising system.
[63] From the evidence, I am satisfied that:
- Ms Ward was called to the meeting without any notice or knowledge of its purpose;
- Ms Ward has no idea of the meeting’s seriousness;
- it was not a “conversation” or “discussion” as described by the Employer;
- the meeting, whether deliberate or not, was set in the Boardroom which Mr Sculthorpe (her immediate manager) described as making him uncomfortable 69;
- Ms Ward was interviewed by two senior members of management and Ms Hughes;
- the interview was not conducted with clarity, mainly due to Ms Hughes leading the interview with less than 48 hours knowledge of the IBM advertising system;
- this lack of clarity and lack of notice led to Ms Ward being “confused”, hesitant in her answers and the Employer (or at least some of its witnesses) forming the view that she displayed a lack of candour and was untruthful;
- the Employer brought to the meeting a view that Ms Ward “had apparently intentionally and maliciously deleted client information” 70 and she had “done the worst”71. I do not accept the view of the Employer that it “went into that meeting with our eyes open just to simply have a discussion”72;
- Ms Ward admitted that she had deleted the notes off the notes system;
- Ms Ward explained consistently that she did so because they were her personal notes;
- the Employer consistently informed Ms Ward that they were its property;
- Ms Ward was advised by the Employer of the potential damage of deleting the notes;
- Ms Ward, in the course of the meeting, acknowledged that it was a “dumb thing to do” and it was “stupid” 73; and
- Ms Ward left the meeting with the view, “well, you have already made your minds up” 74.
[64] In my view, the Employer was seeking Ms Ward to admit that she had spoken to Mr Howell of what she had done. Ms Hughes frames her evidence this way:
“I asked Sandra if she had spoken to anyone about deleting the client notes – if she had asked or informed her manager…before or after...she said no”. 75
It is not clear whether the question is “anyone”, “her manager” or both.
[65] Further, Ms Ward was asked by Ms Hughes if her thinking was “well stuff them, they can do all the work themselves and she said no” 76. I make two observations in relation to this question. Firstly, Ms Hughes could have simply said, “Did you say to Mr Howell something along the lines, well stuff them?”. Secondly, the question is framed in the context of “thinking” and not saying.
[66] If the questions had been framed in a straightforward way and, for example, Ms Ward had denied making such comments to Mr Howell, then the Employer would have serious grounds to question her honesty. It was noticeable that Ms Ward described, in cross examination, Mr Howell’s evidence as follows:
“He has accurately described that discussion?---Not word to word I don't think, but close.” 77
“Close enough?---Yes.” 78
[67] For the reasons outlined above in paragraphs [51] to [65], I have come to the conclusion that Ms Ward did not deliberately mislead the meeting when answering questions. If the Employer believed it was being misled, it was due to Ms Hughes’ lack of knowledge (less than 48 hours), confusion which arose as a result of the way questions were being asked and the manner in which the meeting was arranged.
[68] After Ms Ward left the meeting, Mr Andrew Sculthorpe (Ms Ward’s manager) was asked to attend a meeting of management. After being given an account of the meeting with Ms Ward, Ms Hughes states:
“David [Bignold] asked Andrew to defend Sandra and present an argument why she should stay and he couldn’t” 79.
[69] The only further relevant evidence in relation to this meeting was Mr Bignold’s evidence, “I asked Mr Sculthorpe if he thought she would do it again and he said no, but said he could not believe she would have done it in the first place” 80. Mr Sculthorpe gave evidence that he said, “How can I possibly know because I can’t get into the headspace that she would do it in the first place”81. For the reasons in paragraph [36], I prefer Mr Bignold’s evidence.
[70] The remaining evidence is fairly straightforward.
- Ms Ward was subsequently sent home for the rest of the day and her access to the system suspended.
- Ms Hughes met with Mr Thompson at 1pm. Mr Thompson explained to Ms Hughes “how the IBM system worked and what it was used for…, he explained the meaning of the notes that Ms Ward had deleted…At the conclusion of our discussion, I understood the potential of Ms Ward’s action to significantly cause damage to the business” 82 (I have deliberately highlighted part of this evidence to contrast it with Ms Hughes’ role as the lead interviewer in the formal meeting with Ms Ward – in my view, she was still learning as the investigation was going along).
- Mr Bignold contacted the Employer’s CEO at 3pm who was supportive of the view that “WAN had lost a significant element of trust in its relationship with Ms Ward” 83.
- At approximately 5pm, Mr Thompson and Ms Hughes met with Mr Bignold. At that meeting, three letters were considered. The first letter served as a “first and final warning” 84 . The second letter as a “summary dismissal without payment in lieu of notice”85. The third letter was “summary dismissal with four weeks pay in lieu of notice” given Ms Ward’s length of service86. The Employer chose the letter of summary dismissal with four weeks pay in lieu of notice due to her near 20 years of service.
- Mr Bignold informed Mr Sculthorpe at approximately 5pm of the decision to terminate Ms Ward’s employment on the following day 87.
- Ms Ward, on the following day, asked Mr Sculthorpe to be her support person and whether he knew what was going on 88. Mr Sculthorpe didn’t know how to react and made the comment, “I’m sure they would take your good record…”89 and “didn’t see it…to actually inform her that she was about to lose her job in a few minutes time”90. Mr Sculthorpe was Ms Ward’s support person.
- Ms Ward was terminated without being given the opportunity to make any representations 91.
Employee Code of Conduct
[71] Ms Ward’s letter of termination refer to the Employee Code of Conduct in two paragraphs; they are as follows:
“The company’s Employee Code of Conduct states that at all times employees must act with integrity and professionalism and the proper use of company information and equipment. Your actions are well outside of this requirement.”
and
“As a result of your breach of the Employee Code of Conduct and given the loss of trust and confidence, the company has decided to terminate your employment effective today, 13 November 2009.”
[72] In view of how the reasons for termination have been particularised by the Employer in the above paragraph, I think it can be safely said that it was an important premise which led to her dismissal. Given that it is an important premise which led to her dismissal, it is necessary to examine the evidence submitted in relation to the Employee Code of Conduct 92.
[73] First, it was acknowledged by the Employer that there is no reference to the Employee Code of Conduct in Ms Ward’s letter of engagement in 1989. Secondly, and it was not argued to the contrary by the Applicant, that it is well established that an employee is required to comply with an employer’s policies (provided they are reasonable) even if those policies are not incorporated into the employee’s contract of employment. Further, that a breach of such a reasonable policy will imply an implied term of employment to obey a lawful direction Woolworths Ltd (t/a Safeway) v Brown FB AIRC PR963023 at [25] and [34].
[74] With reference to the Employee Code of Conduct, the Employer brought evidence that Ms Ward attended Workplace Behaviour Training on 31 May 2007 and 3 March 2009 93. In the first instance, Ms Ward was one of twenty-one attendees, and on 3 March 2009, she was one of forty attendees.
[75] On 31 May 2007, the training overheads begin with the question “Why Workplace Behaviour Training?” 94. No mention is made of the Employee Code of Conduct as part of the training agenda. In the 23 “slides”, the only mention of the Employee Code of Conduct is the penultimate slide which states:
“The Employee Code of Conduct, EEO and Internet Policy are available at back of room”.
[76] On 3 March 2009 at the Workforce Behaviour Expectation Training 95 session, there were 34 slides and the Employee Code of Conduct is referred to on two occasions as follows:
“Company Policy
Your responsibility to familiarise yourself with Company policies including:
- WAN Employee Code of Conduct
- …
- …”
and
“Conclusion
Copies of the following policies are available on Woogle:
- Employee Code of Conduct”
[77] Ms Ward admitted, in cross-examination, that she attended the training seminars, understood that the policy applied to her and that she had to comply with it, but was unable to say, with certainty, that she had sighted a copy of the Code of Conduct or remembered it being addressed at the training sessions. Ms Ward’s evidence, in both words and demeanour, clearly indicated that she had little recollection of the Employee Code of Conduct being given any importance at the training seminars. This recollection is not surprising given the paucity of prominence given by the Employer in the training sessions, in contrast, to its prominence in Ms Ward’s letter of dismissal.
[78] My final comment in relation to the Employee Code of conduct relates to a slide of 3 March 2009 where it states:
“Consequence of Breaching Company Policy & Legislation
- WAN takes any complaint in respect of workplace behaviour very seriously
- Complaints are investigated and if appropriate disciplinary action will be taken
- Potential disciplinary actions include:
o Formal warning: written or verbal
o Suspension of employment
o Termination of employment” 96
The Gravity of the Applicant’s Conduct
[79] Counsel for the Employer submitted that:
“We say this case is not about the value of the notes which the applicant deleted. It's about the destruction of the relationship of trust and confidence which must exist between an employer and an employee. We say that what's important is not the value or the number of notes that were deleted or whether those notes were able to be recovered. They were able to be recovered of course because the applicant was caught out. She made a comment to a colleague and that comment was passed on to senior management. But that's not what's important. What's important are the applicant's reasons for deleting the notes which were malicious and a subsequent lack of candour when questioned.” 97
[80] It is indisputable from all the evidence of the Employer that the material which was deleted was recoverable – a fact acknowledged by the Employer’s Counsel. For this reason alone, the notes were recoverable not because Ms Ward was “caught out” but because they were available elsewhere.
[81] For the Applicant, the reason why she deleted the notes were as follows:
- she was genuinely entitled to delete them;
- they were personal notes;
- they were, in some cases, a housekeeping exercise (contracts no longer existed);
- the potential for misinterpretation;
- the information was available elsewhere;
- the practice, as stated by Mr Howell, for new sales representatives to seek and confirm any notes from other sources on first being given an existing client 98.
Having said all that, the circumstances leading up to the deletion of the notes by Ms Ward tend to infer that it was done in a “fit of pique”. Ms Ward deleted some but not all of her notes relating to clients who were being reallocated. Ms Ward did not hide this fact and mentioned it to two colleagues.
[82] For the Employer, Ms Ward’s conduct was malicious or having a wrongful intent. What was that intent? Without doubt, it was, as revealed in cross examination by the Applicant:
“Isn't that the case? Isn't that right? You wanted to make it more difficult for any other sales representative who took over those accounts?---Yes.” 99
And in the Employer’s Counsel closing submission:
“…It was a quick reference tool for sales representatives and others to look at notes when dealing with agencies and clients. Of course her suggestion that she deleted the notes for these reasons because they were written in shorthand, were GST exclusive and wouldn't be much use to anyone else, is inconsistent with the real reason that she gave for deleting the accounts which was to make it more difficult for the person taking over the accounts by forcing them to find out the information for themselves” 100 (my emphasis).
[83] In my view, the Employer, throughout Ms Ward’s termination of employment and this hearing, has failed to separate Ms Ward’s intention to “make it difficult for the next person taking over the account” and the consequences of that intent.
[84] From the outset, Ms Ward’s purpose was to make it difficult for the next person. Further, she found rationale in her actions by the custom and practice and lack of rigour relating to the keeping and deleting of the notes.
[85] However, the Employer saw the consequences or implications of such actions and, notwithstanding Ms Ward’s intent to make it difficult for the person taking over her account, confronted her with the implications of her actions and responded by admitting she was “dumb” and “stupid”.
[86] In my view, the Employer adopted the high to extreme end of consequences when it stated in her letter of termination, that her actions had the potential to seriously compromise the Employer’s ability to service the clients in a professional and efficient manner; exposing the employer to a potential breach of contract and to harm its reputation and good standing.
[87] Put simply, the Tribunal is being asked to concur with the Employer’s assessment of potential risk as a result of the actions of Ms Ward deleting notes, which, if she had not put on the system in the first place, would have gone unremarked as it was not mandatory.
[88] I have come to the conclusion that Ms Ward’s actions could be described as one of “fit of pique” which, in hindsight, I am sure she agrees was, stupid. I am not prepared to conclude that Ms Ward had any intention to cause significant financial, operational or reputational harm to the Employer.
[89] Further, even if I were to consider the financial and operational consequences of her actions, no evidence was presented at the hearing other than what possibly might happen.
[90] Turning to lack of candour, I particularly refer to my previous remarks in paragraphs [52] to [60] and [63] to [67]. I don’t intend to repeat those comments but to say that the Employer primarily reached this judgement after a meeting lasting approximately 20 minutes in which Ms Ward had no notice or advice of its content. Further, she was questioned by Ms Hughes who had less than 48 hours knowledge of the system. After a close analysis, I do not find Ms Ward untruthful in her evidence.
[91] With regard to the importance of the Employee Code of Conduct, it was given almost no significance in Workforce Behaviour Training, however, in Ms Ward’s dismissal letter it was one of two reasons why she was being terminated. If the Employer had given some positive evidence of its importance to the organisation and to an employee’s employment, its reasons for dismissing Ms Ward would be more supportable. Unfortunately, by including the Employee Code of Conduct in the letter of termination, appears to me, as if the Employer is resorting to some “catch all” reason, just in case other justifications are not supportable.
[92] I now turn to the Employer’s proposition regarding trust and confidence. The argument put to me by the Employer is simply that we have an employee of nearly 20 years who has an unblemished record and is described as “diligent”, “highly efficient”, “respected” and “with extensive client knowledge”. For all that time, the Employer has had trust and confidence in Ms Ward. After nearly 20 years the Employer’s trust and confidence is evaporated by this incident and investigation:
“…By deliberately trying to make things more difficult for other employees she deliberately sought to interfere with the respondent's operations. Her actions were contrary to the implied duty of fidelity and good faith which she owed to the respondent and which the respondent had explicitly expanded upon in its employee code of conduct.” 101
[93] What Counsel for the Employer essentially is putting to the Tribunal is that we should describe a car with a puncture, as no longer a car, and that it should be traded in. The proposition is that, because of the puncture, the car is no longer capable of the performance which it had prior to the puncture. Any reasonable person would not support that proposition. Put simply, the degree of impairment is not sufficient to no longer describe the car as a car. In reality, the car owner repairs the puncture and the car returns to its normal performance
[94] In this matter, the Tribunal has to determine whether the actions and subsequent investigations of those actions, were sufficient for the Employer to determine that, after nearly 20 years, has that trust and confidence been impaired to such an extent that Ms Ward should be dismissed? – or continuing my car analogy – traded in.
[95] Finally, by way of observation, the Employer’s witnesses appeared to adopt that Ms Ward’s actions, of themselves, enabled them to put to the Tribunal, in some unquestionable way, the statement that they have lost trust and confidence in her. It was almost to the extent that the statement was not a statement but a self evident truth by particular conduct. In all cases, it is not a self evident truth that trust and confidence is destroyed but arguable on the evidence. In this case, the evidence was limited to exhortations to the potential effect of what could happen.
LEGISLATIVE REQUIREMENTS
[96] The key provisions of the Act pertinent to this application are as follows:
- Section 385
“A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; 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.”
and
- Section 387
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.
FINDINGS
[97] In relation to s.385(a), I am satisfied that Ms Ward has been dismissed. Further, I am satisfied, pursuant to s.385(b), that in all the circumstances, the dismissal was harsh, unjust or unreasonable. Finally, the provisions of s.385(c) and (d) are not relevant to this application.
[98] In considering whether I am satisfied that the dismissal was harsh, unjust or reasonable, I have taken into account my reasons previously set out. In addition, taking into account the provisions in s.387, I make the following brief comments:
(a) Valid reason
I have adopted the concept of a valid reason espoused by North J in Selvechandron v Petersen Plastics (1995) 62 IR 371 at 373 in the following terms:
“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’.”
For the reasons I have already outlined, I am satisfied that Ms Ward was not treated fairly or there was a valid reason in all the circumstances.
(b) Notification of the reason for termination of employment
The reasons for termination of employment are set out in Appendix 1. However, as I have found, these reasons, were in all the circumstances not valid.
(c) Opportunity to respond
For the reasons I have already outlined, to all intents and purposes, Ms Ward’s ongoing employment was in jeopardy prior to her attending the meeting with Mr Bignold, Mr Thompson and Ms Hughes on 12 November 2009. Further, at that meeting, the particulars of the allegations and surrounding circumstances were not put to Ms Ward in a fair and straightforward way enabling her to respond appropriately.
(d) Unreasonable refusal to allow Ms Ward access to a support person
As I have already set out, the meeting of 12 November 2009 was arranged in such a way in terms of: location; timing and lack of knowledge of its purpose, for Ms Ward to access a support person. The Employer’s actions are indefensible in these circumstances. For such a large employer to say, as Ms Hughes did, that Ms Ward could have stopped the meeting to ask for a support person was, in the circumstances, an unsound human resource practice. However, the facts are that Ms Ward did seek access to a support person and that such a request was not refused.
(e) Unsatisfactory performance
No submission or evidence was presented by the Employer, with the exception of this matter, that Ms Ward’s performance was an issue. On the contrary, her performance was described by her immediate manager as: “diligent”, “highly efficient”, respected” and with “extensive client knowledge”.
(f) Employer size
West Australian Newspapers is a substantial business and a significant employer in Western Australia.
(g) Human resource management expertise
As I have stated above, West Australian Newspapers is a significant employer and has access to human resources management practitioners. From a human resource management perspective, this matter could have been approached differently and certainly more fairly.
(h) Other matters considered relevant
Other relevant matters which I have taken into account, are set out in my decision.
[99] Remedy for unfair dismissal
Section 390 states:
“(1) Subject to subsection (3), FWA may order a person's reinstatement, or the payment of compensation to a person, if:
(a) FWA 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) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA 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.”
I am satisfied that Ms Ward was protected from unfair dismissal at the time of being dismissed and that she was unfairly dismissed. Ms Ward has made an application pursuant to s.394. I am not satisfied that reinstatement is inappropriate as set out in my reasons in this Decision.
[100] Reinstatement
Section 391(1) states:
“An order for a person's reinstatement must be an order that the person's employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.”
I am satisfied that, having heard all the evidence and reviewed the exhibits, it is appropriate for Ms Ward to be reinstated in the position she previously occupied prior to her dismissal. Reinstatement will be effective from 15 March 2010 to enable the Employer to make any necessary arrangements regarding Ms Ward’s return to work. I am satisfied that Ms Ward will use the notes function of the IBM system consistent with the past custom and practice. Finally, the Employer, in my view, need have no concern that Ms Ward is a threat to the West Australian Newspaper’s reputation, operations or efficiency of operations
[101] Order to maintain continuity
Section 391(2) states:
“If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:
(a) the continuity of the person's employment;
(b) the period of the person's continuous service with the employer, or (if subsection (1A) applies) the associated entity.
In view of all the circumstances, I consider that the reinstatement be effected in such a way that Ms Ward’s accrued entitlements be maintained from the date of her original engagement as an employee up to the date of reinstatement and beyond.
[102] Order to restore lost pay
Sections 391(3) and (4) state:
“(3) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
“(4) In determining an amount for the purposes of an order under subsection (3), FWA must take into account:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.
On termination of employment, Ms Ward received four (4) week’s pay in lieu of notice. Consequently, during the period between the date of termination of employment and today’s date, Ms Ward has received four (4) week’s pay from a potential 17 weeks earning capacity. In view of the prospective date of the proposed Order, the total remuneration lost is 18 weeks. Taking the four (4) weeks from the potential 18 weeks, at issue is an amount of 14 week’s pay.
[103] The Employer’s Counsel brought to my attention in closing submission that the Applicant had failed to genuinely mitigate her loss of income during this period. I agree with the Counsel’s view, however, there is also truth in the Applicant’s perspective that during the Christmas/New Year period, employers are generally not focused on the recruitment and selection of employees. Further, Ms Ward most probably was focussed on preparing herself for this hearing and that, of itself, would have possibly intruded on her ability to give full attention to any new position.
[104] I am also mindful that, while I have reached the conclusion that Ms Ward’s dismissal was unfair, her conduct was attributable to the Employer taking the decision to terminate her employment. Matters such as this do not lend themselves to a scientific formulae. Both the Applicant and the Employer could submit to me that there are logical reasons why Ms Ward should be paid the entire 14 weeks or be paid nothing.
[105] In my view, there is no escaping the fact that Ms Ward deserves to have some of the lost pay restored, but I am not going to pretend to come up with, to use an old fashioned term, “jiggery pokery”, to determine some subjective apportionment. I think it is fair that she receives seven (7) week’s pay which is 50 per cent of the total amount available; this is based on my assessment of what was presented at the hearing.
[106] An Order in the above terms is issued (PR994791).
COMMISSIONER
Appearances:
Mr S Heathcote for the Applicant
Mr J Blackburn, Counsel and Mr P Swingler for the Respondent
Hearing details:
2010
Perth
18, 19 and 22 February
1 Exhibit 26
2 PN 603
3 PN 2096-2101
4 PN 1211-1213
5 PN 2126
6 PN 2109
7 PN 2024
8 PN 2095, PN 1499
9 PN 2028
10 PN 2028
11 PN 1219, PN 1281
12 PN 1230
13 PN 1235
14 PN 1229
15 PN 1888 to PN 1898
16 PN 256
17 PN 269 to PN 271
18 PN 2317
19 Exhibit R26
20 Exhibit R25
21 Exhibit R18 para 26
22 Exhibit R18 para 27
23 Exhibit R18 para 28
24 PN 1280 – PN 1286
25 PN 443
26 Exhibit R20 para 7
27 Exhibit R12 para 3
28 Exhibit R7
29 Exhibit R7
30 Exhibit R12 para 9
31 Exhibit R7
32 Exhibit R20 para 14
33 PN 1432
34 PN 1433
35 PN 1438
36 PN 1903
37 PN 1921
38 PN 1922
39 PN 1923
40 Exhibit 12 para 11
41 Exhibit 12 para 11
42 PN 1384
43 PN 1440, PN 1442, PN 1444, PN 940, PN 1921, PN 1923
44 PN 1445
45 PN 1448
46 PN 1927
47 PN 1935
48 PN 1940
49 PN 942
50 PN 943
51 PN 35
52 PN 946 to PN 948
53 PN 948
54 PN 930 and PN 931
55 PN 2168 & PN 2169
56 PN 858
57 PN 1389
58 PN 1390
59 PN 1635
60 PN 1466
61 PN 1944 to PN 1957
62 PN 991 to PN 998
63 PN 1005 to PN 1008
64 PN 536 and PN 542
65 PN 1607
66 PN 1609
67 Exhibit R22
68 PN 854
69 PN 2169
70 PN 1433
71 PN 1432
72 PN 1462
73 PN 1070
74 Exhibit R7
75 Exhibit R7
76 Exhibit R7
77 PN 417
78 PN 418
79 Exhibit R12
80 Exhibit R20
81 PN 2205
82 Exhibit R12
83 Exhibit R20
84 Exhibit R15
85 Exhibit R16
86 Exhibit R17
87 Exhibit R20 para 34
88 PN 2213
89 PN 2213
90 PN 2215
91 PN 2218
92 Exhibit R3
93 Exhibits R1 and R4
94 Exhibit R2
95 Exhibit R5
96 Exhibit R5
97 PN 2317
98 Exhibit A2
99 PN 462
100 PN 2370
101 PN 2344
Printed by authority of the Commonwealth Government Printer
<Price code G, PR994594>
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