Ms Lynette Cain v Ottrey Homes - Cobram and District Retirement Village Inc T/A Ottrey Lodge - [2012] FWA 6319

[2012] FWA 6319

FAIR WORK AUSTRALIA

DECISION

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

Ms Lynette Cain
v
Ottrey Homes - Cobram & District Retirement Village Inc T/A Ottrey Lodge
(U2011/1146)

COMMISSIONER CRIBB

MELBOURNE, 30 JULY 2012

Application for unfair dismissal remedy.

[1] This decision concerns an application by Ms Lynette Cain (the applicant) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). It is alleged that her dismissal by Ottrey Homes - Cobram & District Retirement Village Inc T/A Ottrey Lodge (the respondent or Ottrey Homes) was harsh, unjust or unreasonable. Ms Cain is seeking a remedy in respect of her dismissal.

[2] There was a conciliation conference held on 7 July 2011 but no agreement was reached between the parties in settlement of the application.

[3] The application was heard in Shepparton on 26 and 27 October 2011 and 21 and 22 November 2011. There was a further hearing in Melbourne on Friday, 10 February 2012.

[4] Ms Cain was represented by Mr D Langmead, of Counsel and Ottrey Homes by Mr T Jacobs, of Counsel.

[5] Evidence was given by Ms Cain and also by Mr Bolano (of the Health Services Union of Australia (HSU) (the union)), Ms P Bazin, Ms Farrar and Ms K Barr. On behalf of Ottrey Homes, Ms P Robinson, Ms T Crocker (nee Richman), Ms C Dunn, Mr P Davis, Mr R Howard and Ms C Madgwick gave evidence.

CHRONOLOGY OF EVENTS

[6] Given the particular nature of this case, it is useful to provide a brief chronology of relevant events that preceded the dismissal of Ms Cain.

7 October 2009: Mr Davis commenced as Chief Executive Officer (20 hours per week) 1

26 October 2009: Medication incident - involving a medication incident report by Ms Farrar which did not identify the staff member. Ms Cain emailed Ms Madgwick refuting the contents of the medication incident report and saying that she believed it (the report) to be a vindictive act and, if it continued she would take appropriate action. 2

27 October 2009: Worksafe inspection and report following alleged reporting to Worksafe by Ms Cain that she was being bullied by Ms Farrar. 3 It was Ms Cain’s evidence that there was tension between them but that she had not alleged that Ms Farrar was bullying her.4

16 March 2010: Rostering incident involving Ms Cain, Ms Bazin and Ms Madgwick when issues were raised regarding the number of shifts per week and the Good Friday shift. Ms Cain disputed that she threatened to resign. 5

August 2010: Mr McCarthy undertook an investigation and completed his report. 6

14 August 2010: Discussion between Ms Cain and Ms Bazin and Ms Richman where Ms Richman alleged that they told her that she was too immature to do medications and that she would understand that when she was in court because she (Ms Richman) had killed someone. 7 This was denied by Ms Cain and Ms Bazin. Ms Cain said that the only advice she gave her was to start in Tatjana as everybody did.8

23 August 2010: Request by Ms Wright regarding the moving of tables for a group of performers. There was a response by Ms Cain that she did not recommend that the personal care workers move any tables as they were too heavy. She was trying to get Ottrey Homes to bring volunteers in to move the tables. 9

17 September 2010: Allegation by Ms Dunn that Ms Cain had rung her and had intimidated her about what she should say at the interview. It is denied by Ms Cain that she spoke to Ms Dunn let alone said to her what was alleged.

6 September 2010: Letter to Ms Cain from Mr Davis setting out the allegations arising from Mr McCarthy’s report and stating that Mr Aivaliotis would be investigating the allegations and interviewing her. It also contained requirements regarding confidentiality and the non victimisation of any staff member. 10

November 2010: Report by Mr Aivaliotis.

17 November 2010: Letter to Ms Cain formally notifying her of the allegations. It contained a direction regarding confidentiality and also non victimisation. 11

2 December 2010: Allegation by Ms Crocker that Ms Cain had rung her at home and offered, and given her, the number of Mr Bolano, from the union, who could help her get out of the mess she had gotten herself into. Ms Cain agreed that she called Ms Crocker and offered, and gave her, Mr Bolano’s number. She denied that she had said that he might assist her for the reason alleged by Ms Crocker.

27 March 2011 - 7 April 2011: Investigation and report by Ms Robinson. 12

27 May 2011: Letter to Ms Cain setting out the outcomes of the investigation and summarily dismissing her. 13

ISSUES

1. Reasons for dismissal

[7] Ms Cain was summarily dismissed by Ottrey Homes on 27 May 2011. The letter of termination, written by Mr Howard, Chairman of the Board, stated that:

“As set out in the letter to you dated 6 September 2010, the investigation was conducted on a strictly private and confidential basis. Further, you were warned that staff members were not to victimise any person due to their participation in the investigation. You also signed a confidentiality agreement when you were interviewed by Steve Aviallotis (sic). I accept that you are permitted to speak to employees in your role as a union representative in relation to these matters. However, the same does not apply to non-union matters, intimidation and/or victimisation.

You were provided with details of the allegations being made against you when you were interviewed on 22 September, 2010. You were also provided with further details of complaints by way of a letter dated 17 November, 2010. Those details included complaints made against you by both Chris Dunn and Tanya Richman.

In consideration of the above, I view the action taken by you in calling Chris Dunn and Tanya Richman as a serious breach of your obligations to your employer and, In my opinion, amount to a breach of confidentiality, intimidation and victimisation. Given the highly regulated environment in which we work, Ottrey Homes needs to ensure that employees can raise confidential complaints without fear of being intimidated and victimised.

This letter serves as confirmation of the summary termination of your employment effective immediately because of your breach of confidentiality, intimidation and victimisation.” 14

[8] The “Summary of Findings” which was attached to the letter included:

“4.1 Individual action

I have considered the outcomes and reached a number of conclusions in my capacity as Chairman of the Board, as follows:

4.1.1 that you will be issued with a warning in relation to findings reached in clauses 1 (a), (c) and (d) and in relation to 1 (e) above but only insofar as this finding relates to your failure to follow procedure regarding the issue involving Eily Wright;

4.1.2 there are no adverse findings against you in relation to the matters raised in clauses 1 (b) and all matters in clause 1(e) (save for the matter relating to your failure to follow procedure regarding the issue involving Eily Wright), 1(f) or 2(a). No action will therefore be taken in relation to these matters;

4.1.3 the findings set out in clauses 1(g) and 2{b), that you were mot truthful in your responses and that you breached confidentiality by contacting two employees of Ottrey Homes in relation to the investigation in order to intimidate them, amounts to a breach of confidentiality, intimidation and victimisation and the organisation is summarily terminating your employment based on these findings;

4.1.4 no action will be taken against any employees In relation to the findings set out in clauses 2 and 3;” 15

[9] Clause (1)(g) referred to the telephone call to Ms Dunn on 17 September 2010 and clause 2(b) to Ms Cain telephoning Ms Richman on 2 December 2010.

[10] The hearing of Ms Cain’s application extended over five days and there was extensive and detailed witness evidence and documentation provided by both parties to the Tribunal. Although all of the material will not be summarised in this decision, the Tribunal makes clear that it has all been carefully considered and taken account of in reaching the conclusions contained in this decision.

2. Findings of fact

[11] Before determining whether Ms Cain’s dismissal was harsh, unjust or unreasonable, it is necessary to make a number of findings of fact as there were extensive conflicts in the evidence as to the facts. The findings of fact concern the events which formed the basis of Ms Cain’s summary dismissal, which were that:

(a) Ms Cain telephoned Ms Dunn on 17 September 2010 and sought to intimidate her and influence what she said to the investigator, in contravention of the Confidentiality Agreement she had signed and the directions in Mr Davis’ letter of 6 September 2010.

(b) Ms Cain telephoned Ms Crocker on 2 December 2010, discussed the provision of Mr Bolano’s phone number and also discussed whether Ms Crocker wanted to get out of what was occurring within Ottrey Homes and her involvement in it. Ms Cain sought to intimidate Ms Crocker to no longer make a complaint about her.

(c) Ms Cain’s dishonest responses to Ms Robinson in denying that she spoke to Ms Dunn on 17 September 2010 and denying that, on 2 December 2010, she tried to dissuade Ms Crocker from making a statement/complaint to management.

[12] I will deal with each of these incidents separately.

2(a) Telephone call to Ms Dunn on 17 September 2010

[13] It was alleged by Ottrey Homes that Ms Cain telephoned Ms Dunn on 17 September 2010 at 11.20am and told her that she should be very careful when she went to the interview (with Mr Aivaliotis) because she was not in the union. It was also alleged that Ms Dunn was told not to talk about the staff but to say that Mr Davis had caused the problems at work. 16 Ms Cain was also alleged to have asked her whether she had received a second letter as she knew that six people had. She knew who the other five were and thought she (Ms Dunn) might have been the sixth.17

Ms Cain

[14] It was Ms Cain’s evidence that:

She was aware that Mr Aivaliotis’ investigation was being conducted on a confidential basis and that it was inappropriate for her to intimidate witnesses or persuade them not to co-operate with the investigation. 18

She knew that there were four letters of allegations - to herself, Ms Bazin, Ms Barr and Ms Farrar. 19

She said that it did not cross her mind as to whether another employee had received a letter of allegations as she was only worried about herself. 20

She was aware that all staff had received a letter asking them to go and speak to Mr Aivaliotis. She knew that Ms Dunn had been invited to speak to Mr Aivaliotis. 21

With respect to the calls to Ms Dunn, she said that Ms Bazin had made three calls in all. The three calls were not referred to in her witness statement as it was a long time ago. 22

Later in her evidence she said that she did not recall or could explain the first call to Ma Dunn of 20 seconds duration at 10.08am. She had a new phone and was mucking up a bit with it. It might have been a mistake. 23

Ms Bazin telephoned Ms Dunn, first, on her home number and spoke to her father. She then called Ms Dunn a second time on her mobile at 11.21am. 24

Ms Bazin only spoke to Ms Dunn about the fish and chip shop that she knew was for sale. The rest of the conversation was about Ms Dunn’s fathers’ health. 25

Ms Bazin did not hand her the phone at the end of the conversation. 26

She denied that she was trying to talk to Ms Dunn about the investigation. 27

She did not talk to Ms Dunn about the letters or about talking about the staff at all when being interviewed but to say that Mr Davis had caused all of the problems or that she needed to be careful in the interview as she was not a member of the union. 28

Ms Barr was also at her house at the time. She was there when the call was made to Ms Dunn at 10.06am. 29 The calls made to Ms Barr at 10.11am and 10.12am were because she was trying to get hold of Ms Barr for some reason.30 Ms Cain also said that Ms Barr was at her house at 10.00am and could not explain the calls to Ms Barr after that. She kept calling people all the time with her new phone.31 She was 100% sure that Ms Barr was present when the call was made to Ms Dunn at 11.21am.32

She, Ms Bazin and Ms Barr were talking about trying to start up a business (a little rock n roll shop) as they did not know where they were going. Were discussing it because Ms Dunn knew of a place for sale. They then decided to ring Ms Dunn to find out about it. 33

She could not remember the call to the HSU at 10.20am. 34

She had no explanation for the 42 minute call to the HSU at 10.42am but said that it was not related to the call to Ms Dunn. 35

[15] When recalled to give further evidence, Ms Cain said that:

The call to Ms Dunn’s mobile at 10.08am was made by Ms Bazin who was fiddling with her phone. 36

The calls to the HSU at 10.20am and 10.42am were to Mary Cooke arranging dates for Ms Cain’s appointment with Mr Aivaliotis. 37

Ms Bazin had arrived at her house at about 9.00/9.15am. 38 The call from her home phone to Ms Bazin’s home at 9.42am (217 seconds) was possibly Ms Bazin ringing her son at home. Ms Bazin often rang home from Ms Cain’s house.39

She did not telephone Ms Dunn at any time. 40

She could not explain the calls to Ms Barr at 9.45am and 9.53am from her home phone to Ms Barr’s home phone. 41

She, Ms Bazin and Ms Barr had discussed opening a rock n roll shop a few times previously. 42

Ms Bazin

[16] For her part, it was Ms Bazin’s evidence that:

She called Ms Dunn from Ms Cain’s mobile as she had no credit on hers and there was no discussion of the investigation during the phone call. 43

The purpose of the phone call was to find out about the fish and chip shop which Ms Dunn had been discussing at work. 44 She denied that the call was to fish around for information regarding the investigation.45

When she made the telephone call, Ms Barr, she and Ms Cain were at Ms Cain’s house. 46 Ms Barr was there at 10:06 am when the first call was made to Ms Dunn.47 They were all talking about the future and she brought up the idea of buying a local fish and chip shop.48

She did not hand the phone to Ms Cain whilst she was still on the phone to Ms Dunn. 49 She denied that Ms Cain spoke to Ms Dunn and asked her whether she had received the fifth letter; had said that, at the interview with Mr Aivaliotis, she was not to talk about staff but to say that Mr Davis had caused the problems at work or that Ms Dunn should be careful as she was not in the union.50

The conversation with Ms Dunn commenced with a discussion about her father’s health and then she asked Ms Dunn about the fish and chip shop for sale. 51

At the end of the conversation with Ms Dunn she said that she hoped they were still mates. The reason the saying this was that she (Ms Bazin) was off work and she had said to Ms Dunn that she was not sure she was going back to Ottrey. 52

She had no memory of two calls being made to the HSU (at 10.20am and 10.42am) prior to the call to Ms Dunn at 11:18am. 53

She explained the calls to Ms Barr’s mobile and home phone at 10:39am, immediately preceding the call to the union, on the basis that she has trouble with Ms Cain’s swipe phone as does Ms Cain. She said that she had seen Ms Cain playing with her phone and Ms Barr answering her phone in the same room. She stated that she was not inventing this. 54

She said that she made a mistake when, in her statement, she said that she had rung at 11:15am on Ms Dunn’s home phone and spoken to her father 55 when it was at 10:06am.56 She had called Ms Dunn on her mobile at 11.20am.57

She had arrived at Ms Cain’s house between 9.00am and 9.30am. There was a phone call made at 9:42am to her home. She said she did not have a specific recollection of the call. Her son was at home but she did not know why she rang him. 58 She then said that she did ring her home number to speak to her son and that he remembered her call.59

When recalled to give further evidence, she indicated that she had a recollection now of the 21 minute phone call to the HSU at 10:42am. That call plus the ones at 10:14am and 10:19am to the HSU were calls to Mary Cooke. 60

Ms Robinson had recorded incorrectly what she had said to her during the interview. She had told her that she had rung Ms Dunn about the fish and chip shop and that it was $15,000. Ms Dunn was a friend of hers and not of Ms Cain’s. 61

Ms Barr

[17] Ms Barr’s evidence was that:

She was having coffee with Ms Cain and Ms Bazin at Ms Cain’s house and they were all trying to be a bit positive about life and were discussing opening up a cafe. 62

She arrived at Ms Cain’s house around 10am or /maybe about 9:55am. 63 She said that the calls from Ms Cain’s home phone to her home phone at 9:47am and 9.53am were not answered because she was probably walking to Ms Cain’s house.64 She said that she was not aware that Ms Cain had rung her as she had no answering machine.65 She said that, despite the 4 calls made to her home and mobile, she was at Ms Cain’s house. She said that Ms Cain’s phone constantly redialled.66 She said that Ms Cain was having terrible trouble with her new mobile phone and that was the explanation as to why these calls were made.67

Ms Bazin had said that she knew there was a shop for sale and that Ms Dunn knew the details. She called Ms Dunn on her home phone and spoke to her father. She then called Ms Dunn on Ms Cain’s mobile as Ms Bazin was low on credit on hers. 68

She did not recall the two calls to the HSU at 10:14am and 10:19am. She did not have a clue as she did not make the calls. 69

It was denied that Ms Bazin handed the phone to Ms Cain or that Ms Cain asked Ms Dunn whether she had received the fifth letter or that she told Ms Dunn what to say to Mr Aivaliotis. 70

Ms Dunn

[18] It was Ms Dunn’s evidence that:

She did not invent a conversation with Ms Cain and then made a complaint about it. 71

She told Mr Aivaliotis that Ms Cain had said to be very careful when she went to the interview as she was not in the union. She had also asked as to whether she had received the sixth letter. 72 Ms Cain had also said that, when she went to the interview, she was not to talk about staff at all but to say that Mr Davis had caused the problems at work. She said that Ms Cain had also asked her as to whether they were mates and she had said that they were.73

She had spoken to Ms Bazin first (who had rung her on Ms Cain’s mobile) and then to Ms Cain as Ms Bazin had handed the phone to Ms Cain. 74

Ms Bazin had asked her about a fish and chip shop that she said she was thinking of buying and queried her about the business including profitability and equipment required. 75

She had spoken to Mr Aivaliotis about the telephone call from Ms Cain and had showed him her phone with the incoming call details. He had not asked her to keep it. 76

She did not recall saying to Mr Aivaliotis that she could not recall what other matters had been discussed yet she included the fish and chip shop in her statement. 77

Ms Robinson

[19] It was Ms Robinson’s evidence that:

During her investigation, there was no response from Ms Cain regarding whether or not she had rung Ms Dunn about the investigation. She said that Ms Cain did not deny the allegation but indicated that a phone call had occurred and that it was in relation to the fish and chip shop. 78

Ms Bazin had told her that she was at Ms Cain’s house and that she rang Ms Dunn to enquire about the fish and chip shop and then she handed the phone to Ms Cain. Ms Robinson said that she took that mean that Ms Cain had then spoken to Ms Dunn. She indicated that it was possible that Ms Bazin just gave the phone back to Ms Cain because she had finished the call completely. 79

Ms Cain had said that a phone call had occurred and that Ms Bazin had made it. 80 She indicated that Ms Cain had told her that this had occurred on 22 September 2011 and not on 12 September 2011.

Ms Bazin had indicated that Ms Cain was more of a friend with Ms Dunn whilst Ms Cain had indicated the reverse. 81

In terms of the price of the fish and chip shop, she said that she wrote down what was told to her which was $55,000. 82

As part of her investigation, she did not interview Ms Dunn but relied on Mr Aivaliotis’ investigation. 83

Mr Davis

[20] It was Mr Davis’ evidence that he could not understand why Ms Cain had rung Ms Dunn. 84 He had had no input into Mr Howard’s decision but believed it to be the right decision as Ms Cain’s conduct on 17 September 2010 and 2 December 2010 was inappropriate. He said that it was untenable to employ her based on Paula Robinson’s report.85

[21] It was stated by Mr Davis that the allegations set out in the letter of 6 September 2010 86 to Ms Cain included that she intimidated staff, that employees were scared to deal with her and that her workplace behaviour created infighting and put pressure on staff. It was said that these matters arose from Mr McCarthy’s report. The letter also included that, if the investigation found that Ms Cain’s behaviour had been inappropriate, he may take disciplinary action including termination of employment.87

[22] Mr Davis explained that he had included in the letter to Ms Cain the statement that the investigation was to remain confidential so that there was not general discussion amongst the staff - to protect the privacy of everybody who was involved. He said that the paragraph regarding confidentiality went to all staff. 88 He also wanted to ensure that employees were able to participate in the investigation without any interference from other employees or any intimidation or victimisation.89

[23] It was outlined by Mr Davis that, following receiving Mr Aivaliotis’ Report, he sent a letter to Ms Cain, dated 17 November 2010, which attached a formal record of the allegations against her. 90 The letter included the statement that, if Ms Cain failed to respond to all of the questions in a full, frank and truthful manner, it could be a basis for the termination of her employment. The letter also directed her to keep all of the documents on a strictly private and confidential basis and she was not permitted to discuss them with any employee other than himself. Ms Cain was also not permitted to victimise any employee as a result of any information they have provided or allegations that they have made.91

Mr Howard

[24] Mr Howard held the view that Ms Cain, in contacting Ms Dunn, was trying to influence her. He believed that Ms Cain’s conduct on 17 September 2010 and 2 December 2010 had breached the confidentiality requirement which she had been told about. 92

Submissions

[25] It was submitted by Mr Langmead, on behalf of Ms Cain, that the phone call, as alleged by Ms Dunn never happened - Ms Cain did not speak to Ms Dunn on 17 September 2010. It was stated that it was Ms Bazin who had spoken to Ms Dunn. 93 Further, it was argued that Ms Cain’s evidence about not being very good at dealing with her new touch phone was credible as the calls were of a very short duration.94

[26] Mr Langmead contended that Ms Dunn had concocted the story she gave to Mr Aivaliotis and had only added the discussion about the fish and chip shop when she saw the statements of others which recounted the conversation that had actually taken place. 95

[27] With respect to the calls made to Ms Barr being said to mean that she was not at Ms Cain’s house, it was stated that Ms Barr did not know about them as she did not receive them or it was whilst she was walking to Ms Cain’s house. 96

[28] It was also contended that Ms Robinson should have interviewed Ms Dunn as she was a relevant witness. It was possible under the terms of reference for Ms Robinson to have done so. 97

[29] Mr Jacobs, on behalf of the respondent, submitted that the applicant was a most unsatisfactory witness and that she was seriously evasive in answering questions. A critical issue was said to be whether Ms Cain knew that Ms Dunn had been invited to speak to Mr Aivaliotis. In the beginning, Ms Cain was said to have said that she would not know who was going to speak to him. Later, her answer that she knew that Ms Dunn had been invited to speak to Mr Aivaliotis was highlighted. 98

[30] It was strongly suggested to the Tribunal that considerable weight should be placed on the phone records as they were reliable contemporaneous documents. 99 Ottrey Homes argued that the records suggested that the calls to Ms Dunn were related to the investigation.100

[31] Also, based on the phone records, it was stated that Ms Barr could not have been at Ms Cain's house at 10:06am. 101 In addition, the phone records were said to reveal that Ms Bazin’s statement that she had phoned Ms Dunn's land line at about 11.15am and her mobile at 11.20am was wrong. This was because the calls were made at 10:06am, 10:08am and 11:21am.102

[32] Ottrey Homes submitted that Ms Cain’s explanation that the calls recorded in the mobile phone records could be explained because her phone was faulty/playing up was argued to be absurd evidence which should strongly undermine Ms Cain's overall credibility. 103

[33] Ms Dunn’s version of events was said to be the same during the hearing as she had given to Mr Aivaliotis. 104 Further, it was argued that her evidence was unshaken and that the Tribunal should find that she was reliable and truthful witness.105

Considerations

[34] The alleged telephone discussion between Ms Cain and Ms Dunn on 17 September 2010 was one of the issues investigated by Mr Aivaliotis and Ms Robinson.

[35] Mr Aivaliotis was ascertaining as to whether any staff had breached the confidentiality of the investigation. In her interview with him, Ms Cain had said that she had spoken to the HSU, Ms Barr and Ms Bazin about the investigation in her capacity as a union representative. 106

[36] When Ms Dunn was interviewed, Mr Aivaliotis’ Report indicates that she said that she had been intimidated by Ms Cain on 17 September 2010 when she had received a call from Ms Cain on her mobile phone. The Report records the make of Ms Dunn’s phone, the date and time of the call from Ms Cain’s mobile and its duration. 107 Ms Dunn had then alleged that Ms Cain had told her to be very careful when she went to the interview because she was not in the union. Ms Cain had also allegedly asked Ms Dunn if she had received a second letter because she knew that six people had received a second letter. She knew who the other five were and thought that she could have been the sixth. The Report records Ms Dunn’s response to be that she had only received one letter. Ms Cain had allegedly asked “we are mates aren't we?” and had then handed the phone over to Ms Bazin.108

[37] Mr Aivaliotis formed the opinion that there had been instances of bullying and harassment carried out by Ms Cain. There was not, however, a direct finding about whether Ms Cain spoke to Ms Dunn and in the terms as alleged by Ms Dunn. 109

[38] Ms Robinson also investigated the alleged breach of confidentiality on 17 September 2010. Ms Robinson found that:

Both Ms Bazin and Ms Cain indicated that the phone call was made to Ms Dunn as she knew about a fish and chip shop that was for sale. 110

That the information provided differed in that Ms Bazin asserted that Ms Cain and Ms Dunn were friends so Ms Cain provided Ms Bazin with the phone number for Ms Dunn and Ms Bazin was at her house. Ms Cain was recorded as asserting that Ms Bazin and Ms Dunn were friends. 111

Given the contradictory information provided and the fact that no response has been given by Ms Cain to the specific allegation and also that it had been found that Ms Cain made a similar phone call to Ms Richman in relation to her contacting the union, Ms Robinson found that this allegation was substantiated.

[39] I have carefully considered the various recollections of what occurred on 17 September 2010 regarding the alleged phone call to Ms Dunn. I find that it is most probable that Ms Bazin telephoned Ms Dunn and that, at the end of the conversation with her, handed the phone to Ms Cain. I also find that it is most probable that Ms Cain did tell Ms Dunn to be very careful when she went to the interview because she was not in the union and that she should not talk about staff but to say that Mr Davis had caused all the problems. I further find that it is most probable that Ms Cain also asked Ms Dunn as to whether she had received a second letter as she knew that six people had received a second one. She also said that she knew who the other five were and so she thought that Ms Dunn could have been the sixth.

[40] In making these findings, I accept the evidence of Ms Dunn over that of Ms Cain, Ms Bazin and Ms Barr. The evidence of Ms Cain, Ms Bazin and Ms Barr appeared in some respect to be rehearsed. For example, they all gave the same evidence that Ms Cain was having trouble with her new phone. However, there appeared to be the same pattern of calling from Ms Cain’s home phone which she said was not playing up. This was also the reason given for the discrepancy between the evidence which said that Ms Barr was at Ms Cain’s at the time of the 10.06am call when the telephone records show two calls being made to her mobile at 10.11am and 10.12am. Also, they all said that the reason for calling Ms Dunn was to talk about the fish and chip shop because they had discussed previously opening a business together. This explanation needs to be seen in the context of what was happening in the workplace at the time, based on Mr Davis’ evidence. It may have been a reason to call Ms Dunn but I accept the respondent’s submission that the real reason was to influence what Ms Dunn said at her upcoming interview with Mr Aivaliotis to ensure that she did not complain about Ms Cain. Further, I accept the respondent’s contention that the call to Ms Dunn at 11.21am was related to the prior 21 minute call to the HSU. Given the nature of the conversation between Ms Cain and Ms Dunn and the proximity of it to the call to the union, it would be stretching things to say that the two were unrelated, particularly in light of Mr Davis’ evidence about the issues in the workplace.

[41] Further, I have some concerns about Ms Cain’s credibility as a witness. She was hard to pin down, for example, about whether or not she knew that Ms Dunn had an invitation to speak to Mr Aivaliotis. Secondly, in the time between her evidence and when she was recalled, her memory seemed to have improved. This meant that she had explanations which bolstered her case that she did not provide during her first tranche of evidence. For example, she could not recall the first call to the HSU at 10.20am nor had an explanation about the second (42 minute) call at 10.42am. After being recalled, Ms Cain’s evidence was that she remembered both calls and that they were to Mary Cooke about an interview time with Mr Aivaliotis.

[42] Further, Ms Cain’s evidence was inconsistent with the phone records for her home phone and for her mobile. Her evidence, together with that of Ms Bazin and Ms Barr, places Ms Barr at her house at 10.06am when the first call was made to Ms Dunn (on her home phone).

[43] However, the phone records show a call to Ms Barr’s mobile at 10.11am and another call to her home phone at 10.12am. Both calls were of short duration which would seem to indicate that Ms Barr did not answer them. Ms Barr’s explanation that Ms Cain’s mobile phone kept on re-dialling would not seem to be supported by the evidence as the first call was to Ms Barr’s mobile but the second one was to her home phone. Further, the explanation provided by all three that Ms Cain was having trouble with her new slide phone would not explain the two calls as they were to different numbers which would suggest more than ‘fiddling’ issues.

[44] As well, the phone records show a 63 second long call from Ms Cain’s home number to Ms Dunn’s home number at 10.06am. This was followed by a 20 second call from Ms Cain’s mobile to Ms Dunn’s mobile at 10.08 am which lasted 20 seconds. However, the longer call (7 and a half minutes approximately) to Ms Dunn’s mobile did not occur until 11.21am. This does not accord with Ms Bazin’s written statement that says that she first called Ms Dunn’s land line at 11.15am and then her mobile at about 11.20am. 112

[45] In respect to the content of the conversation between Ms Cain and Ms Dunn, I accept Ms Dunn’s evidence regarding what Ms Cain said. In the general context of the workplace as described by Mr Davis, it is quite plausible that Ms Cain had the kind of conversation as alleged by Ms Dunn.

2(b) Telephone call to Ms Crocker on 2 December 2010

[46] It was alleged by Ottrey Homes that, on 2 December 2010, Ms Cain telephoned Ms Crocker and sought to intimidate her to no longer complain about Ms Cain and to instead speak to the union.

Ms Cain

[47] Ms Cain gave evidence that:

She had called Ms Crocker around noon on 2 December 2010 from Ms Bazin’s house following a call from Ms Hunt. 113 During Ms Hunt’s phone call, she had told Ms Cain that management had pressured her to make a complaint about her. She had also said that Ms Crocker had told her that management had made her put in a complaint against Ms Cain and Ms Bazin.114 Ms Cain, therefore, felt compelled to call Ms Crocker because she thought Ms Crocker was in serious trouble. She rang her because she was worried about her and she put Ms Crocker ahead of herself.115 She rang Ms Crocker in her capacity as OH&SR and HSU delegate.116

She did not tell Ms Crocker that she could try to get herself out of the mess she had gotten into. 117 She had used the word “animosity” and not the word “grudge” when she said to Ms Crocker that she did not hold any animosity against her for complaining about her (Ms Cain).118

She said she would give her Mr Bolano’s number but did not say that it was so that Ms Crocker could speak to Mr Bolano and retract her complaint against her (Ms Cain). She thought that Ms Crocker was in trouble and wanted her to get some sort of support from the union as she thought that she was a union member at that time. 119 She did not tell Ms Hunt not to tell anyone that she had called her.120

She did not try to intimidate Ms Crocker. She gave her advice as she thought that she was a member. She recalled Ms Crocker and another person filling out the documents together. She has since learnt from that other person that Ms Crocker threw her documents away. 121

She remembered trying to sign - signing Ms Crocker up. 122

Ms Bazin

[48] Ms Bazin gave evidence that:

The call was made to Ms Crocker from her house as she and Ms Cain were concerned about Ms Crocker following Ms Hunt’s call to Ms Cain. 123

Ms Cain said to Ms Crocker that she had no animosity against her; she asked her how she was and gave her Mr Bolano’s number. 124

She said that Ms Cain did not say to Ms Crocker that she would give her Mr Bolano’s number so he could help her get herself out of mess she had gotten into. 125 Rather, she said that, if Ms Crocker felt that she needed help, the number was there.126

She said that she believed that Ms Crocker was an HSU member because Ms Cain had told her that she had helped Ms Crocker fill out a form. 127

Ms Crocker

[49] It was Ms Crocker’s evidence that:

Ms Cain called her at home and said that she did not hold any grudges or animosity against her and offered (and did) to give her the phone number of Mr Bolano from the union and that he could help her get herself out of the mess that she had gotten herself into. She thought that Ms Cain was referring to the complaint she had made about Ms Cain and Ms Bazin saying she was too young to do medications. 128 She did not query why Ms Cain was offering to give her Mr Bolano’s phone number.129

Ms Cain also told her that she was not to tell anyone that she (Ms Cain) had contacted her. 130

Ms Cain tried to persuade her to change her version of events by phoning her at home and giving her Mr Bolano’s number and suggesting to her that she could get herself out of the mess she had gotten into and that Mr Bolano could help her in some way. 131 She agreed that Ms Cain did not tell her to change her version of events - “Not in those words, no”.132

She felt upset to receive Ms Cain’s call and intimidated (as in somebody undermining somebody else). After the conversation with Ms Cain and Ms Bazin in the kitchen area at Tatjana (4 months previously) and then to receive a phone call, she felt very uneasy. She said that she was shaken up and that the phone call had really upset her. She also said that she had never previously given her home number to Ms Cain. She believed that it was inappropriate for Ms Cain to ring her and try and persuade her to speak to the union and change her version of events ie. not tell the truth. 133

Ms Cain did not tell her to change her version of events - in those words - nor not to tell the truth. She did not try and persuade her to speak to the union. 134

She never told Ms Cain that she was not a union member. She had not partially filled in an application form which she had then taken away with her. 135 Ms Cain has asked her to join the union but did not give her an application form.136

She does not recall saying to Ms Robinson that she was not bothered by the call as it did bother her. 137 She knew that she was obliged to tell Ms Robinson the truth even though she didn't regarding her Facebook entry.138 When she told Ms Robinson that the phone call did not bother her, that was possibly another lie.139

Ms Robinson

[50] Ms Robinson gave evidence that:

She preferred Ms Richman’s version to that of Ms Cain’s. 140

Ms Richman was quite distressed that Ms Cain had gone to the extent of contacting her by telephone when she had not previously provided Ms Cain with her home phone number. 141

Ms Cain did not tell her that she believed that Ms Crocker was a union member and that she had helped her fill in a membership application form. 142

Ms Cain told her that she offered Mr Bolano’s phone number to Ms Richman and that that was all she had said. She had heard from Ms Hunt that Ms Crocker was upset about making a statement. 143

Ms Madgwick

[51] It was Ms Madgwick’s evidence that, on 3 December 2010, Ms Richman told her that she had received a phone call from Ms Cain at about noon the previous day. She said that Ms Cain had asked her if she would like the phone number of Mr Bolano from the union in case she wanted to talk to him about anything that Ottrey Homes were making her do that she wanted to get out of. She also said that Ms Cain had told her that she and Ms Bazin held no grudges against her. Ms Richman also told her that she got a shock that Ms Cain had called her. 144

Mr Davis

[52] Mr Davis’ evidence was that, on about 6 December 2010, Ms Richman came to see him in his office and told him that she had received a phone call from Ms Cain the previous week at home which had upset her. Ms Richman also said that the applicant had said to her that she could get herself out of what Ottrey Homes was forcing her to do and the mess she was in (complaining about Ms Cain to Ottrey Homes) by speaking to the union. Ms Cain had given Ms Richman the phone number of Mr Bolano from the union. During the discussion, Ms Richman was very upset. 145

Mr Howard

[53] It was Mr Howard’s view that Ms Cain had breached the directions given to her in the letter dated 17 November 2010. He accepted the findings in Ms Robinson’s report that Ms Cain tried to persuade Ms Richman to no longer cooperate with Ottrey Homes and instead to speak to the union and withdraw her complaint against Ms Cain. He believed that this conduct was fundamentally inappropriate and that it amounted to an attempt to interfere with the investigation and to intimidate a witness. 146

[54] Mr Howard stated that he did not consider Ms Cain’s explanation regarding having been told that Ms Richman had been pressured to give a statement, was an adequate explanation for ringing her. 147

Submissions

[55] Mr Langmead highlighted that Ms Cain had admitted to making the call to Ms Richman. However, it was argued that Ms Cain did not intimidate or threaten Ms Richman. All she did was to offer Mr Bolano’s number as she thought that Ms Richman was a union member. 148 It was stated that Ms Cain did not disclose any confidential information or breach any instructions.149

[56] Mr Langmead argued that Ms Cain was not evasive with her answers but rather that the questions were confusing. That Ms Cain was of the belief that Ms Richman was a union member was referred to. 150

[57] It was submitted that Ms Crocker, during cross-examination, admitted that Ms Cain had not told her to change any version of events or not to tell the truth. Neither did she try to persuade Ms Richman to call the union but merely gave her Mr Bolano’s phone number. Further, Ms Richman did not ask her why she was being offered Mr Bolano’s number and did not tell Mr Cain that she was not a union member. 151

[58] In addition, the union contended that Ms Crocker admitted to lying to Ms Robinson about the Facebook exchanges. It was said that Ms Richman had also admitted that it was a possibility that she may have told Ms Robinson that she was not upset about the phone call from Ms Cain when she was upset. 152

[59] Ms Robinson’s notes were said to not record the claim that Ms Cain had tried to persuade Ms Richman to speak to the union and change her version of events. 153

[60] Ottrey Homes submitted that Ms Crocker did not depart from her version of events, rather, she clarified her evidence. 154 Her acknowledgement that she lied to Ms Robinson was highlighted.155

[61] It was argued that, by telephoning Ms Crocker on 2 December 2010, Ms Cain breached the 17 November 2010 direction and also the confidentiality agreement. Mr Jacobs noted that, after receiving the 17 November 2010 letter from Ottrey Homes, Ms Cain was aware that Ms Crocker had complained about her. On 2 December 2010, Ms Cain then sought to dissuade Ms Crocker from co-operating with Ottrey Homes and instead tried to persuade her to speak to the union. Therefore, Ms Cain again sought to interfere with the employer’s investigation and intimidate a witness. 156

Considerations

[62] The findings of Ms Robinson were that the allegation was substantiated. Ms Robinson found that Ms Cain did phone Ms Richman at home, that she discussed the provision of Mr Bolano’s phone number and also whether Ms Richman wanted to get out of what was occurring within Ottrey Homes and Ms Richman’s involvement in it. It was also found that it was inappropriate for Ms Cain to contact Ms Richman on her home phone as the contact was not in relation to a work matter. Finally, Ms Robinson found that it was totally inappropriate for Ms Cain to even approach Ms Richman in relation to any statement the complainant may have made or any action taken by management in interviewing her about any statement. 157

[63] I have considered all of the material before me. It was not disputed by Ms Cain that she rang Ms Richman at home on 2 December 2010. It was also common ground that Ms Cain offered Ms Richman the phone number of Mr Bolano from the union. It is also apparent from the evidence that Ms Richman did not query as to why she was being offered Mr Bolano’s number nor did she tell Ms Cain that she was not a union member.

[64] Ms Cain’s explanation for calling Ms Richman was that she was very concerned about her and believed that she was a union member. With respect to Ms Cain’s belief that she believed that Ms Richman was a union member, her evidence during the hearing changed from, having assisted Ms Richman fill in the paperwork but she took it away with her to, that she had signed her up as a member. In terms of Ms Cain’s motivation that she was concerned for Ms Crocker and that was why she had called her, I have not been persuaded by Ms Cain’s evidence that that was the reason.

[65] On 17 November 2010, Ms Cain received the letter from Mr Davis which made her aware that Ms Richman had made a complaint about the medication incident in March 2010. Accepting Ms Cain’s version of events, then, on 29 November 2010, she received a call from Ms Hunt who told her, amongst other things, that Ms Richman had told her that management had made her put in a complaint about Ms Cain and Ms Bazin. On 2 December 2010, it is common ground that Ms Cain telephoned Ms Richman. Given this background, I find Ms Richman’s version of the conversation more probable. It is more than likely that Ms Cain did say to Ms Richman that the union would help her get out of the mess that she had gotten herself into. It was Ms Richman’s evidence that she thought that Ms Cain was referring to her complaint about the medication incident. However, as Ms Cain denied saying these things to Ms Richman, it is unclear as to whether the “mess” she referred to was both the medication incident complaint and the one that Ms Hunt told Ms Cain that Ms Richman had been made to make. It was Ms Richman’s evidence that she was upset to have received the call and felt intimidated as there had been the medication incident four months earlier. 158

[66] Therefore, I find that, in ringing Ms Richman at home on 2 December 2010, the essence of what Ms Cain said to Ms Richman was for the purpose of trying to persuade Ms Richman to speak to the union and thereby not proceed with her complaint about Ms Cain.

Breaches of confidentiality agreement

[67] It was alleged by Ottrey Homes that Ms Cain, in telephoning Ms Dunn on 17 September 2010 and Ms Richman on 2 December 2010 had contravened the confidentiality agreement that she had signed on 22 September 2010. As well, the telephone calls were said to be in breach of Mr Davis’ letters of 6 September 2010 and 17 November 2010 which directed Ms Cain not to discuss the correspondence with any other employee and not to victimise any employee as a result of information they provided or allegations they made.

[68] It was argued by Mr Langmead that the directions set out in the letter of 6 September 2010 regarding confidentiality were not lawful. This was on the basis that the direction in the letter was imprecise and no consideration was exchanged for the signing of the confidentiality agreement. 159 Further, it was submitted that the phone call to Ms Crocker was neither intimidation nor victimisation nor a breach of confidentiality.160 This was on the basis that Ms Cain did not tell Ms Richman to change her story or not to tell the truth. It was contended also that Ms Richman had admitted that the conversation was not victimisation or intimidation.

[69] On the other hand, it was argued by Ottrey Homes that Ms Cain was provided with lawful and reasonable directions not to victimise employees because of information they had provided. Secondly, on 22 September 2010, Ms Cain, in the presence of her union representative, signed the confidentiality agreement and thereby agreed not to discuss the investigation with other staff members. As well, Ms Cain admitted that she was aware that the investigation was confidential and that she should not contact witnesses with a view to intimidating them or persuading them not to cooperate with the investigation. Mr Jacobs submitted that, Ms Cain in telephoning Ms Dunn on 17 September 2010 had breached the confidentiality agreement. 161

[70] With respect to Mr Langmead’s argument that the confidentiality agreement was not operative because no consideration was exchanged for signing it, Mr Jacobs argued that Ms Cain received the benefit/reassurance of PCM promising that the staff interviews were only for the purposes of the investigation and not for any extraneous purpose -as set out in the first paragraph of the confidentiality agreement. 162

Considerations

[71] The letter dated 6 September 2010 sent by Mr Davis to Ms Cain contained the following paragraph:

“Please note, this investigation is being conducted on a purely confidential basis and you are required to retain all information, including this correspondence, on that basis. Any breach of confidentiality by any staff member could result in disciplinary action. Further, any staff member who victimises any person due to their participation in this investigation will also be disciplined. Disciplinary action may involve the termination of employment.” 163

[72] The confidentiality agreement that was signed by Ms Cain, on 22 September 2010, indicated the following:

“I have been advised that I may be asked specific questions re current staff members and these discussions shall not be discussed with any current or past Ottrey Homes staff member.

I understand that any discussions that are entered into during this or future interviews are to remain confidential.

I have been advised by the PCM representative that if any part of the interview (s) is discussed the management of Ottrey Homes reserves the right to take any reasonable action which they may be permitted to take under any relevant law for breach of confidentiality.” 164

[73] The letter dated 17 November 2010 sent by Mr Davis to Ms Cain stated as follows:

“Failure to respond to all questions in a full, frank and truthful manner, or providing all details with reasons as to why you cannot provide full details, will be considered a failure to comply with a lawful and reasonable direction and may, of itself, be a basis for the termination of your employment......

I direct you to retain all enclosed documents and this correspondence, on a strictly private and confidential basis...... You are also not permitted to victimise any employee of Ottrey Homes as a result of any information they have provided or allegations they have made.” 165

[74] In terms of Mr Langmead’s submission that the confidentiality agreement was not operative, I accept the respondent’s submissions that the consideration exchanged was the benefit/reassurance that the interviews were only for the purpose of the investigation and no other purpose.

[75] With respect to the alleged breach by Ms Cain (by ringing Ms Dunn) of the requirement for confidentiality set out in the letter of 6 September 2010 and the confidentiality agreement, I find that, in telephoning Ms Dunn and telling her that she should not talk about staff but to blame Mr Davis for the issues and to be careful as to what she said in the interview as she was not in the union and asking her as to whether she had received two letters, constitutes a breach of the confidentiality agreement and the letter of 6 September 2010.

[76] In terms of Ms Cain’s call to Ms Richman on 2 December 2010, I find that it was designed to victimise/intimidate Ms Richman to withdraw her complaint about Ms Cain and so was in breach of the direction in the letters of 6 September 2010 and 17 November 2010 that Ms Cain was not to victimise any person due to their participation in the investigation, any information provided or any allegations made. However, I do not find that Ms Cain breached the confidentiality requirements or agreement as she did not disclose any information or discuss the investigation.

2 (d) Dishonesty to Ms Robinson

[77] It was submitted by Mr Langmead that Ms Cain had not been dishonest in her interview with Ms Robinson and that Ms Robinson’s report was in fact seriously flawed. This was said to be on the basis that her notes were an inaccurate record of what the employees told her in the interviews or she had subsequently interpreted the notes in a particular way which may not have reflected what was said. 166

[78] Ottrey Homes argued that Ms Cain was required, by the letter of 17 November 2010, to respond to all questions from Ms Robinson in a full, frank and truthful manner. On the basis of Ms Robinson’s findings that the allegations made by Ms Dunn and Ms Richman were substantiated, the respondent contended that Ms Cain had not been honest in her responses to Ms Robinson’s questions.

[79] As the Tribunal has found that Ms Cain did speak to Ms Dunn on 17 September 2010 and that the conversation was as alleged by Ms Dunn and also that Ms Cain telephoned Ms Richman on 2 December 2010 and that the content of the conversation was as alleged by Ms Richman, it is only possible to find that Ms Cain was not honest in her answers during the interview with Ms Robinson.

CONCLUSIONS

[80] Section 396 of the Act sets out four matters which must be decided in applications of this kind before the merits are considered. These matters are:

“(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(d) whether the dismissal was a case of genuine redundancy.”

[81] The application was made 14 days after the termination which is within the period required in subsection 394(2). With respect to the requirements of s.396(b), the applicant was covered by an enterprise agreement (Ottrey Homes - Cobram and District Retirement Village Inc. (Trading As Ottrey Lodge), ANF and HSU Enterprise Agreement 2009). 167 Therefore, the applicant was protected from unfair dismissal within the meaning of s.383 of the Act. Sections 396(c) and (d) have no relevance in this matter.

[82] Section 385 of the Act provides that a person has been unfairly dismissed if Fair Work Australia is satisfied that:

“(a) the person has been dismissed; and

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

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

In this matter, s.385(a) has been met and s.385(c) and (d) have no relevance. Therefore, what remains to be determined is whether or not Ms Cain’s dismissal was harsh, unjust or unreasonable (s.385(b)).

Was the dismissal harsh, unjust or unreasonable?

[83] In order to determine whether Ms Cain’s dismissal was harsh, unjust or unreasonable, Fair Work Australia is required to take into account the factors set out in s.387 of the Act. Those factors are as follows:

“Section 387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that FWA considers relevant.”

I will deal with each of these factors in turn.

Valid reason – s.387(a)

[84] It was submitted, on behalf of Ms Cain, that Ottrey Homes did not have a valid reason for dismissing her. This was on the basis that Ms Cain did not speak to Ms Dunn on 17 September 2010 and that the phone call to Ms Crocker was not a breach of confidentiality nor was it intimidation or victimisation. In the alternative, it was argued that the directions about confidentiality were not lawful as the direction in the 6 September 2010 letter was not lawful and no consideration was exchanged for the signing of the confidentiality agreement. The conduct of the respondent was said to be unjust and unreasonable and in breach of its duty under the contract of employment. Further, it was contended that Ms Cain’s behaviour did not amount to serious and wilful misconduct. It was said that the real reasons for Ms Cain’s dismissal were the perception that she was a difficult employee, in part, due to the way she conducted herself as an HSU delegate and OH & S representative. 168

[85] Ottrey Homes contended that there was a valid reason for Ms Cain’s dismissal based on her serious misconduct. The serious misconduct was that, on 6 September 2010 and 17 November 2010, the respondent had specifically directed Ms Cain not to victimise any person due to their participation in the confidential investigation. Contrary to those directions, Ms Cain had telephoned Ms Dunn on 17 September 2010 and sought to influence what she said to the investigator and to intimidate her. Secondly, it was contended that, when Ms Cain telephoned Ms Crocker on 2 December 2010, she sought to intimidate her to no longer complain about Ms Cain and to instead speak to the union. 169

Conclusions

[86] On the basis of the findings set out above in paragraphs 39 - 45, 63 - 66 and 71 - 76, I find that there was a valid reason for the dismissal of Ms Cain. Ms Cain contravened the confidentiality agreement and the letter of 6 September 2010 when she rang Ms Dunn and sought to influence what she said to the investigator and to intimidate her. Secondly, in calling Ms Richman at her home, on 2 December 2010, and offering the phone number of the union to help her get out of the mess she had gotten herself into is also intimidation. Further, it was inappropriate behaviour on the part of Ms Cain to call Ms Richman on her home phone when she had not been provided with that number by Ms Richman.

Notification of the reason – s.387(b)

[87] On the basis of the evidence, it would appear that, in the letter of 17 November 2010, Ms Cain was advised of the allegations regarding the call to Ms Dunn on 17 September 2010. 170 Further, the complaint by Ms Richman about Ms Cain’s telephone call on 2 December 2010, was put to Ms Cain during her interview with Ms Robinson.171

[88] Therefore, I am satisfied that Ms Cain was notified of the reasons for her dismissal.

Opportunity to respond – s.387(c)

[89] It was submitted by Mr Langmead that Ms Cain was not afforded procedural fairness. Ottrey Homes was said to have embarked on a witch hunt following an incident between Ms Madgwick and Ms Cain in March 2010. The witch hunt included Mr McCarthy’s report and then Mr Aivaliotis’ investigation. The process adopted by the respondent was not only designed to bring about identification of the “witches” but it was also unjust, unreasonable and unconscionable. It was also said to be in breach of the respondent’s duty under the contract of employment of good faith and fairness. The whole intention of the process was to get Ms Cain and any other “witches” that were caught up in the process. 172

[90] Further, it was argued that, ultimately, Ottrey Homes could not get enough out of the various investigations to get rid of Ms Cain. Mr Langmead stated that Ottrey Homes wanted to get rid of Ms Cain because she was an active union representative and an active occupational health and safety representative or just a pain. They, therefore, set about implementing a process that would achieve this result. 173

[91] For Ottrey Homes, Mr Jacobs contended that Mr Davis was justified in being concerned about the tenseness and level of conflict in the workplace. It was argued that, even without recourse to the Aviallotis Report, there were sufficient issues occurring in the workplace to validate Mr Davis’ concerns eg the moving of the tables issue and the March 2010 roster issue. 174 Mr Aivaliotis’ Report was said to have found the existence of serious workplace conflict and instances of bullying and harassment carried out by Ms Cain. This was stated to confirm Mr Davis’ concerns about the workplace which led to the letter of 17 November 2010 being sent to Ms Cain.175 On this basis, therefore, Ottrey Homes argued that the allegations made on behalf of Ms Cain of a plot/conspiracy to get rid of her were unfounded.176

[92] I have considered all of the submissions before me. Prima facie, the number of investigations held between August 2010 and April 2011 would seem to be unusual. However, on closer examination of the context and reasons for each of them, it may not necessarily be so. I accept Mr Davis’ evidence that, because he was unsure of the extent of the problems in the workplace, he arranged for Mr McCarthy to conduct an independent assessment of what the issues were. 177

[93] On the basis of the issues raised in Mr McCarthy’s report, Mr Davis arranged for Mr Aivaliotis to conduct an investigation. Letters were sent to six employees, including Ms Cain, setting out the allegations against them. Mr Aivaliotis’ Report was completed in November 2010. As the result of that Report, formal allegations were sent to Ms Cain in Mr Davis’ letter of 17 November 2010.

[94] The HSU filed a dispute application with Fair Work Australia regarding the questions attached to this letter. The outcome of the union’s application appears to have been agreement that an appropriate independent investigator investigate the allegations. Agreement was reached that the additional allegations (including Ms Crocker’s complaint of 2 December 2010) would also be investigated. 178 It was further agreed that Mr Davis would not make any decision arising from the investigator’s findings - rather, the Chairman of the Board, Mr Howard, would do this. There also appears to have been agreement between Ottrey Homes and the HSU that Ottrey Homes would act on the findings of Ms Robinson’s report.179 Ms Robinson was the person agreed to undertake the investigation.

[95] On the basis of the sequence of events set out above, I have not been persuaded that the process was designed to get rid of Ms Cain. Therefore, in that sense, I do not find that Ms Cain was not afforded procedural fairness.

[96] In terms of the complaint that Ms Cain should have been shown Ms Robinson’s findings before her report was submitted, there is no evidence before me that there was agreement between the union and Ottrey Homes that Ms Robinson would do this.

[97] Further, except for Mc McCarthy’s exercise, Ms Cain was interviewed by both Mr Aivaliotis and Ms Robinson. During the interview with Ms Robinson, Ms Cain was able to respond specifically to the allegations about the two incidents and to provide her side of the story.

[98] Therefore, I am satisfied that Ms Cain was given an opportunity to respond to the reasons for her dismissal.

Support person – s.387(d)

[99] The evidence indicates that Ms Butler from the HSU attended the interview with Mr Aivaliotis with Ms Cain. As well, Mr Bolano from the HSU was present with Ms Cain at the interview with Ms Robinson on 15 February 2011.

[100] There is no material before me that would support a finding that Ottrey Homes unreasonably refused Ms Cain a support person.

Previous warnings regarding the unsatisfactory performance – s.387(e)

[101] As the reasons for Ms Cain’s dismissal related to her conduct, this factor is not relevant.

Impact of the size of the business/absence of dedicated human resources – s.387(f) and s.387(g)

[102] No submissions were made by the parties about the impact of the size of the business on the procedures followed in effecting the dismissal.

Any other matters – s.387(h)

[103] It was submitted by Mr Langmead that the consequences for the personal and economic situation of Ms Cain are harsh, given her age and that she resides in country Victoria. 180

[104] On the other hand, the respondent contended that the following matters were relevant:

It is important that Ottrey Homes be able to take steps to prevent and stop victimisation and intimidation of its employees. 181

In the aged care industry, it is critical that employees are able to confidentially raise issues with their fellow employees and also with their employer without fear of retribution or reprisals. 182

Serious account should be taken of Ms Cain’s dishonesty. 183

[105] Account will be taken of all of these other matters.

Conclusion

[106] In all of the circumstances of this matter and, having taken account of each of the factors in s.387 of the Act, I determine, on fine balance, that Ms Cain’s summary dismissal was harsh. On the one hand, there was a valid reason for Ms Cain’s dismissal and it was procedurally fair. However, her summary dismissal was harsh given that issues regarding Ms Cain’s conduct in the workplace were first raised with Ottrey Homes in 2010 beginning with Mr McCarthy’s Report.

[107] With respect to remedy, I have considered all of the requirements of section 390 and 392 of the Act. I do not consider that reinstatement is appropriate but that an Order for payment of compensation is appropriate.

[108] In all of the circumstances of this matter, I determine that Ottrey Homes pay Ms Cain five weeks’ pay in lieu of notice, taxed according to law, within 14 days of this decision.

[109] An Order 184 to this effect will be issued separately.

COMMISSIONER

Appearances:

D Langmead, of Counsel for the Applicant

T Jacobs, of Counsel for the Respondent

Hearing details:

2011.

Shepparton:
October 26, 27;
November 21, 22.

2012.
Melbourne:
February 10.

1 Exhibit R10 at paragraph 1

2 Exhibit R13 at Attachments CM1 and CM2

3 Exhibit A2 at Attachment LC4

4 Transcript PN 446 and 458

5 Ibid PN 489 - 502

6 Exhibit R10 at Attachment PD8

7 Exhibit R8 at Attachment TC1

8 Transcript PN 535 - 550

9 Ibid PN 559 - 565

10 Exhibit A2 at Attachment LC1

11 Ibid at attachment LC4

12 Ibid at Attachment LC5

13 Ibid at Attachment LC6

14 Ibid

15 Ibid

16 Ibid at Attachment LC4, Exhibit R9 at paragraph 4 and Transcript PN 2861 - 2862

17 Ibid at Attachment LC4

18 Transcript PN 618 - 619

19 Ibid PN 624 - 632

20 Ibid PN 633

21 Ibid PN 637 - 667

22 Ibid PN 670 - 673

23 Ibid PN 698 and 701 - 707

24 Ibid PN 693 - 697, 715 and 1955

25 Ibid PN 724 - 725

26 Ibid PN 727

27 Ibid PN 1941 - 1948, 1952 - 1957, 1978

28 Ibid PN 734 - 756

29 Ibid PN 692

30 Ibid PN 694

31 Ibid PN 707 - 711

32 Ibid PN 713 - 714

33 Ibid PN 717

34 Ibid PN 1008 - 1009

35 Ibid PN 1010

36 Ibid PN 1976

37 Ibid PN 1941 - 1948 and 1953

38 Ibid PN 1965 - 1967

39 Ibid PN 1970 - 1972

40 Ibid PN 1955, 1944 - 1948 and 1953

41 Ibid PN 1988 - 1990, 1999 - 2001 and 2003 - 2006

42 Ibid PN 1960 - 1962 and 1964

43 Ibid PN 1545 - 1547, 1621 and 1580

44 Ibid PN 1548 - 1549 and Exhibit A4 at paragraphs 3 - 4

45 Ibid PN 1557 – 1560 and 204 - 206 and ibid at paragraphs 8 - 9

46 Ibid PN 1550 - 1551 and 1566 - 1567

47 Ibid PN 2089 - 2090

48 Exhibit A4 at paragraph 2

49 Transcript PN 1575

50 Ibid PN 1584 - 1586

51 Exhibit A4 at paragraph 10

52 Ibid and Transcript PN 1589

53 Transcript PN 1553 - 1556 and 1563 - 1568

54 Ibid PN 1568 - 1570

55 Exhibit A4 at paragraphs 6 - 7

56 Transcript PN 2034 - 2035 and 2037 - 2038

57 Ibid PN 2041 - 2047 and Exhibit A4 at paragraph 9

58 Ibid PN 2065 - 2062

59 Ibid PN 2065 - 2068

60 Ibid PN 2071 and 2073

61 Ibid PN 1580

62 Ibid PN 1778 - 1780, 1803 and 2099 - 2102 and Exhibit A5 at paragraphs 1 - 2

63 Ibid PN 2110

64 Ibid PN 2135 and 2120

65 Ibid PN 2122

66 Ibid PN 2132

67 Ibid PN 1791 - 1797

68 Exhibit A5 at paragraphs 3 - 5

69 Transcript PN 1781 - 1783, 1787 - 1789 and 2151

70 Ibid PN 1800 - 1802 and Exhibit A5 at paragraph 7

71 Ibid PN 2853 - 2854

72 Ibid PN 2861 - 2862 and Exhibit R9 at paragraph 4 and 6

73 Ibid paragraphs 5 and 8

74 Ibid at paragraphs 2 - 3 and Transcript PN 2863

75 Ibid at paragraph 3

76 Transcript PN 2855 - 2866

77 Ibid PN 2865 - 2866

78 Ibid PN 2414 - 2415, 2417 - 2423 and 2222

79 Ibid PN 2224, 2340, 2342 - 2343 and 2500 - 2505

80 Ibid PN 2339

81 Ibid PN 2355 - 2358

82 Ibid PN 2381

83 Ibid PN 2408, 2411, 2327 - 2337

84 Ibid PN 3224 - 3226

85 Ibid PN 3247 - 3248 and 3286

86 Exhibit A2 at Attachment LC1

87 Exhibit R10 at paragraph 34

88 Transcript PN 3165 and 3167

89 Exhibit R10 at paragraph 36

90 Exhibit A2 at Attachment LC4

91 Exhibit R10 at paragraphs 40 - 42

92 Transcript PN 3360 and 3454

93 Exhibit A9 at paragraphs 7(a)(i) and 45 and Transcript PN 3798

94 Ibid PN 3930

95 Exhibit A9 at paragraph 51

96 Transcript PN 3931

97 Ibid PN 3933 - 3934

98 Ibid PN 640 - 667 and 3864 - 3865 and Exhibit R15 at paragraph 8

99 Ibid PN 3868 and ibid at paragraph 9

100 Ibid PN 3869 and ibid at paragraph 11

101 Ibid PN 3877 and 3880 and ibid at paragraphs 19(b) and 28

102 Ibid PN 3879 and ibid at paragraph 23

103 Ibid at paragraph 19(a)

104 Ibid at paragraph 39 and Transcript PN 3883

105 Ibid at paragraph 41

106 Exhibit A8 at page 14

107 Ibid at page 14

108 Ibid at page 15

109 Ibid at page 20

110 Exhibit A2 at Attachment LC5 at page 14

111 Ibid

112 Exhibit A4 at paragraphs 6 and 9

113 Exhibit A2 at paragraph 30 and Transcript PN 927 – 930

114 Ibid at paragraph 30

115 Transcript PN 941 and 943

116 Exhibit A2 at paragraph 32

117 Transcript PN 931 and 934

118 Ibid PN 932

119 Ibid PN 933, 935 - 937 and Exhibit A2 at paragraph 33

120 Ibid PN 938

121 Ibid PN 942, 944, 947 and 956 - 959 and Exhibit A2 at paragraph 34

122 Ibid PN 945 and 949

123 Ibid PN 1618 - 1620 and Exhibit A4 at paragraph 14

124 Ibid PN 1625 - 1626

125 Ibid PN 1624 and 1627

126 Ibid PN 1628 and Exhibit A4 at paragraph 15

127 Ibid PN 1629 and ibid at paragraph 16

128 Ibid PN 2747 - 2749 and Exhibit R8 at paragraph 10

129 Ibid PN 2758 and 2764

130 Ibid PN 2759

131 Ibid PN 2761

132 Ibid PN 2762

133 Ibid PN 2765 - 2771, 2785, 2789 and 2810 and Exhibit R8 at paragraphs 11 - 12

134 Ibid PN 2761 - 2764

135 Ibid PN 2750 - 2752

136 Ibid PN 2754 - 2755

137 Ibid PN 2774 - 2779

138 Ibid PN 2780 - 2781

139 Ibid PN 2782 - 2783

140 Ibid PN 2229 - 2230

141 Ibid PN 2391 and 2393

142 Ibid PN 2383, 2387 and 2448

143 Ibid PN 2385 - 2386

144 Exhibit R13 at paragraph 27 and Attachment CM8

145 Exhibit R10 at paragraph 49

146 Exhibit R12 at paragraph 25 and Transcript PN 3453

147 Ibid PN 3385 - 3387

148 Ibid PN 3800

149 Ibid PN 3801

150 Ibid PN 3929

151 Exhibit A9 at paragraph 74

152 Ibid at paragraph 72

153 Ibid at paragraph 75

154 Exhibit R15 at paragraph 77 and Transcript PN 3882

155 Ibid PN 3882

156 Exhibit R15 at paragraph 76

157 Exhibit A2 at attachment LC5 at pages 15 - 16

158 Transcript PN 2765 - 2771

159 Exhibit A1 at paragraphs 14 and 23(d) and Exhibit A9 at paragraph 7(c)

160 Ibid at paragraph 7(a)

161 Exhibit R15 at paragraphs 70 - 71

162 Ibid at paragraph 80

163 Exhibit A2 at attachment LC1

164 Ibid at attachment LC3

165 Ibid at attachment LC4

166 Exhibit A9 at paragraphs 77 - 79

167 Exhibit R10 at Attachment PD2

168 Exhibit A9 at paragraph 7

169 Exhibit R15 at paragraphs 3 and 70 - 86

170 Exhibit A2 at Attachment LC4

171 Ibid at Attachment LC5

172 Transcript PN 33 - 35

173 Ibid PN 36

174 Exhibit R15 at paragraphs 42 and 122 - 124

175 Ibid at paragraph 126

176 Ibid at paragraph 129

177 Exhibit R10 at paragraphs 14 - 15

178 Exhibit R6

179 Transcript PN 3251 and 3265

180 Exhibit A9 at paragraph 8

181 Exhibit R15 at paragraph 114

182 Ibid at paragraph 115

183 Ibid at paragraph 117

184 PR527264

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