Ms Nektaria Natoli v Anglican Community Services t/a Anglicare
[2018] FWC 2180
•14 MAY 2018
| [2018] FWC 2180 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s 394 - Application for unfair dismissal remedy
Ms Nektaria Natoli
v
Anglican Community Services t/a Anglicare
(U2017/10636)
DEPUTY PRESIDENT SAMS | SYDNEY, 14 MAY 2018 |
Application for an unfair dismissal remedy – dismissal of supervisor at aged care facility – allegations of serious misconduct – breaches of social media and bullying and harassment policies and the Agreement – offensive and threatening text messages and Facebook post sent by the applicant in response to partner’s damaged car – no evidence that recipient of text messages and subject of Facebook post caused the damage to the car – admissions of applicant – assumption of guilt based on earlier incidents – applicant the employee’s supervisor – investigation of allegations – meetings with applicant and Union representative – no contrition or apology – applicant claimed no training on social media policies or bullying and harassment policies – claims of excessive workload not made out – incident not ‘heat of the moment’ in anger – deliberate intention to scare employee – priority on harshness of dismissal – one prior warning now disputed – long period of exemplary service – awards and commendations – valid reason for dismissal – breaches of policies and Agreement – options other than dismissal such as mediation inappropriate – comparable alternative employment – no issues of procedural unfairness – mitigating factors do not outweigh seriousness of the allegations and lack of contrition – dismissal not harsh, unjust or unreasonable – application dismissed.
BACKGROUND
[1] Ms Nektaria Natoli commenced employment with Anglican Community Services (‘Anglicare’ or the ‘respondent’) on 26 September 2006 at its 123 bed residential aged care facility in Taren Point, New South Wales, known as Goodhew Gardens. Her employment was covered by the Anglican Retirement Villages Diocese of Sydney (ARV) Staff Agreement 2008 [AE314769] (the ‘Agreement’). The applicant was dismissed from her employment as a Servery Supervisor (Level OS4) on 13 September 2017. The reasons for the applicant’s dismissal were set out in a letter of termination from Mr Mark Aros, Residential Manager, dated 19 September 2017, in which it was said:
1. We believe that your actions constituted misconduct and in breach of Anglicare's policies around use of Social Media relating to the workplace.
2. It was determined that you had sent inappropriate text messages to one of your staff members making allegations you could not substantiate or prove. The messages were extremely upsetting as Charlene was adamant she was not the cause of the damage.
3. It was determined that you posted highly offensive and threatening messages on Facebook and whilst they have not intended to be seen by Charlene, the posts were seen by her causing significant distress and concern for her safety.
4. As a supervisor, you have a responsibility to ensure that staff under your control are kept safe. We believe you have not met the requirements of your position accountabilities.
5. We believe that your actions are not in keeping with the Anglicare values of justice in that you have made assumptions about the actions of another staff member with no proof and made no attempt to manage this situation through other means such as involving the police. We also believe that during this process there has been little signs of remorse or compassion about how your actions have impacted on the health and safety of another staff member.
6. We finally believe that it would be a completely untenable situation for you to return to Anglicare, particularly Goodhew Gardens and it would be impossible to have a Supervisor looking after staff that they had threatened. We feel that you have crossed the line of what the organisation could tolerate in terms of poor behaviours.
[2] On 29 September 2017, Ms Natoli (hereinafter the ‘applicant’) filed an application for an unfair dismissal remedy (seeking reinstatement, continuity of service and compensation), pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). The application was unable to be resolved at conciliation and remitted to me for hearing. In accordance with my usual practice, I convened a further face to face conference of the parties, but no settlement of the applicant’s claim was able to be achieved.
[3] The matter was listed for arbitration and directions were issued in preparation for the hearing on 7, 14 and 21 February 2018. Mr Toby Warnes, from the Health Services Union, NSW Branch appeared for the applicant and Mr Ben Gee and Ms M Paterson, Solicitors (FCB Workplace Law), appeared for Anglicare, with permission being granted, pursuant to s 596 of the Act. I note Mr Warnes did not oppose Mr Gee’s appearance. Both parties accepted that the applicant is a person protected from unfair dismissal, in accordance with s 382 of the Act. That concession is appropriately made and to the extent I need to make relevant findings under s 385 and 396 of the Act, I intend to do so later in this decision.
Agreed statement of facts
[4] The parties helpfully provide the Commission with an agreed statement of facts which I reproduce below:
Background
1. On 26 September 2006, Ms Nektaria Natoli (the applicant) commenced employment with Anglican Community Services (the respondent) at the respondent's Taren Point facility known as ‘Goodhew Gardens’.
2. On 13 September 2017, the applicant was informed of a decision by the respondent to terminate her employment.
3. By letter dated 19 September 2017, the respondent informed the applicant in writing of the decision to terminate her employment, with payment in lieu of notice.
4. The applicant was dismissed by the Respondent, within the meaning of s.386 of the Fair Work Act 2009 (Act).
5. From 2008 and until the employment ceased, the applicant was covered by the Anglican Retirement Villages Diocese of Sydney (ARV) Staff Agreement 2008 [AC314769] (the Agreement).
6. On 28 September 2017, the applicant's Unfair Dismissal Application was filed in the Fair Work Commission.
7. The applicant is a person who is protected from unfair dismissal, per s.382 of the Act.
Other Agreed Facts
8. On or around 20 May 2009, the applicant was issued with a copy of the respondent's ‘ARV Staff Handbook’.
9. In 2017, the respondent issued a warning to the applicant in respect of her conduct.
Note:
(a) The applicant says the warning letter is dated 7 June 2017.
(b) The respondent says the warning letter is dated 28 April 2017.
Whereas the documents, other than the date, are identical and refer to the same conduct and events.
10. On 29 August 2017, the applicant interacted with Ms Charlene Jerusalem Oconer in the course of a servery shift at Goodhew Gardens. The applicant was at that time the Servery Supervisor. Ms Oconer was at that time a Servery employee.
11. On 1 September 2017, at 10.37am, the applicant sent a series of text messages to Ms Charlene Jerusalem Oconer.
12. On 1 September 2017, at 10.56am, the applicant made a post on Facebook, the content of which is in evidence at:
(a) applicant Statement at paragraph 25 and annexure P; and
(b) first Aros Statement at paragraph 13 and annexure C.
13. On 1 September 2017, the applicant sent a text message by telephone to Ms Lyn Nicholas, Operations Manager of the respondent.
14. On 4 September 2017:
(a) Mark Aros of the respondent rang the applicant's mobile phone, and had a short telephone discussion with Mr John Macros, who is the applicant's partner;
(b) Mr Aros and the applicant spoke by telephone.
15. On 5 September 2017, the respondent advised the applicant by email and letter of an investigation into her conduct on 1 September 2017, during which she would be on paid leave and not required to attend work.
16. By letter dated 6 September 2017, the respondent advised the applicant of a meeting to be held on 8 September 2017, and the nature of the allegation regarding her conduct on 1 September 2017.
17. On 8 September 2017, the applicant, Ms Sarah Gleeson of the HSU, Mr Aros and Ms Buckley of the Respondent met at the respondent's facility in Kirrawee, known as ‘Donald Robinson Village’.
18. On 13 September 2017, the applicant, Ms Gleeson, Mr Aros and Ms Buckley of the respondent met again. At the conclusion of this meeting, the applicant was informed by the respondent of the decision to terminate her employment.
19. The applicant accepts there was no evidence Ms Oconer damaged her partner’s car.
[5] At this point, I set out the relevant extracts from Anglicare’s policies and the Agreement covering the applicant’s employment.
[6] The Agreement at cl 3.3 reads:
3.3. Employee Duties
(a) Employees shall diligently perform all duties and responsibilities assigned by ARV, including any incidental or peripheral duties, provided they are within the Employee's skill and competence.
(b) Employees shall comply with all lawful and reasonable directions given by ARV or any manager or other person nominated by ARV from time to time.
(c) Employees shall comply with all ARV policies and procedures as amended from time to time (although these do not form part of this Agreement).
(d) ARV maintains a ‘zero tolerance’ for certain types of behaviour that are considered totally unacceptable because they may seriously compromise the duty of care ARV has to its clients or residents, or the duty of care Employees have to each other. These behaviours include but are not limited to:
(i) wilful failure to follow ARV policies and procedures including but not limited to those relating to care, occupational health and safety, and a lawful and reasonable direction of a Supervisor;
(ii) lying, misrepresenting or deceiving conduct at commencement of employment relating to personal history, work experience or medical history, or during employment;
(iii) violence (threatened or actual, physical or verbal) toward a client, resident, another Employee, volunteer or contractor;
(iv) theft whether from a client, resident, another Employee, volunteer, contractor, or from ARV including (but not limited to) improper recording of attendance and/or leave;
(v) harassment, bullying or sexual misconduct towards a client, resident, another Employee, volunteer or contractor;
(vi) working under the influence of alcohol or illegal drugs, or having illegal drugs in your possession whilst at work; and
(vii) giving and/or receiving any gifts, or involvement in resident or client financial or legal transactions, contrary to ARV policy. [my emphasis]
[7] Serious misconduct is referred to at cl 3.6(e) and states:
Serious Misconduct: At any time ARV may summarily terminate an Employee's employment in the event of serious misconduct. Summary termination means that ARV is not obliged to provide notice or to make a payment in lieu of notice. Serious misconduct may include, but is not limited to, conduct in breach of the Employee Duties in clause 3.3 of the Agreement including breach of zero tolerance behaviours listed.
[8] The Staff Handbook sets out corresponding references to the Policies and Procedures document. Section 6.23 reads:
Purpose To describe the procedure for handling allegations of harassment, sexual harassment and bullying, in accordance with the Unacceptable Behavior Policy
Scope All ARV employees, contractors, volunteers and visitors to ARV sites.
Zero Tolerance Bullying, harassment and sexual harassment at ARV are considered to be zero-tolerance behaviour in accordance with the Sta ff Agreement and ARV policy.
Definition Harassment is unwelcome or unsolicited behaviour that unfairly or unreasonably puts down, belittles, undermines, controls, scares, intimidates, excludes, offends or embarrasses ("offended") another person.
It is largely defined by the offended person. To establish whether or not a matter involves harassment, the 'reasonable bystander' test is used. That is, whether or not a 'reasonable person' would have anticipated that the behaviour would have offended the person.
Intent is not relevant to whether or not harassment has occurred, although it may be relevant for determining action that results from the behaviour.
Sexual harassment is a form of harassment as defined above that is of a sexual nature, usually delivered in a verbal, written or physical action towards another person.
Bullying is a form of harassment as defined above that can be a one-off incident although it usually involves a pat tern of behaviour. To be able to bully, the offender often has organisational or personal power over the victim. Bullying is usually intended and is considered to be a more serious form of harassment.
Harassment and bullying can occur outside of work, for example at work related events or through comments and content posted on social media.
Harassment and bullying of any form are against ARV's values, ARV policy and will not be tolerated. This behaviour is also against the law and employees can be held personally liable for breaches. See list of relevant legislation below:
• Sex Discrimination Act 1984
• Work Health and Safety Act 2011
• Anti-Discrimination Act 1977 (NSW)
Responsibility All staff
Must demonstrate behaviour that is consistent with ARV's values and that is completely free of bullying and harassment, including sexual harassment.
Respectfully address any instances of harassment, sexual harassment and bullying that they have witnessed or experienced, in accordance with this procedure.
The best results are usually obtained when the offended employee addresses the matter directly with the person who has offended them. This is to be done calmly and respectfully. If the staff member does not believe that they can address the matter directly with the person who has offended them, or is unwilling to, they should next consider whether they can take someone with them to help them respectfully discuss and resolve their concern. If the staff member does not believe that they can do this, or is unwilling to, refer to 6.24 Complaint Resolution and Investigation procedure and the section below on 'Support'.
Managers
Ensure ARV's work sites are free from harassment, sexual harassment and bullying.
Be available to discuss matters of this nature with staff, and take reasonable steps to ensure that complaints brought to them are resolved, with reference to this procedure and 6.24 Complaint Resolution and Investigation Procedure as applicable.
Ensure staff are educated on harassment, sexual harassment and bullying. Human Resources and Q&D staff are available to assist.
Education ARV has produced an educational video 'Understanding and Preventing Harassment, Sexual Harassment and Bullying'. The video is mandatory viewing for all staff.
Managers are to ensure that each of their staff have viewed the video and to notify Q&D for inclusion on the staff member's training record.
Support The following support is available for staff who have witnessed or experienced harassment or bullying:
• Your supervisor
• Your manager
• Your manager's manager
• Human Resources [number omitted]
• Employee Contact Officer [number omitted] (see note below)
• Chaplaincy [number omitted] (see note below)
• Employee Assistance Program - [number omitted] (see note below)
The primary means of support is your line management (supervisor, manager, manager's manager) and matters should be referred to these staff in the first instance.
The secondary means of support is Human Resources. HR staff can help you resolve your concern in consultation with line management and relevant stakeholders.
Employee Contact Officers. Like HR, the role of Employee Contact Officer is to listen to staff concerns and advise on the options available to resolve the matter. Unlike HR, the role is limited to advice, with the responsibility to resolve any concerns remaining with line management, with the support of HR where necessary. The role is to provide staff with a further avenue of support, if they do not wish to contact line management or HR in the first instance.
Chaplains. Chaplains are available for past oral and spiritual support.
Employee Assistance Program (EAP). The EAP is provided by PPC Worldwide. The EAP is available for all staff and members of their immediate household to discuss any personal or work related concerns.
Process The complaint should be managed without undue delay according to this procedure and 6.24 Investigation and Complaint Resolution Procedure as applicable.
Actions Including
Disciplinary Action
The actions taken in response to an incident of harassment or bullying will depend on the circumstances and severity of the matter. It may involve a direct resolution between the staff involved, informal or formal resolution by line management, mediation, education, and/or disciplinary action. Disciplinary action may include action up to and including termination of employment (see 6.21 Disciplinary and Termination Procedure for more information).
External Complaints
The appropriate external agency is responsible for ascertaining the validity of the allegation. This could range from the offender's employer for contractors to NSW Police for resident families and visitors.
The ARV Manager is responsible for ensuring the allegation is raised with the appropriate external body in accordance with that body's requirements. The alleged offender may be removed from the AR V site, immediately if appropriate, to ensure the ongoing safety of residents, clients and staff.
Victims may also report the complaint directly to the relevant external agency, Department, Ombudsman or service.
[9] Email and Internet Usage is referred to at page 30 of the Staff Handbook as follows:
ARV will provide E-mail and internet access to those employees who require this as a business tool. E-mail and internet access are provided for business related purposes. It is recognised that such access may be used from time to time for private purposes
…
ARV does monitor usage. Inappropriate use of email or the internet may result in disciplinary action, termination or Police intervention.
[10] Section 7.82 of Anglicare’s Managing our People Policy deals with Anglicare and non-Anglicare emails, internet and social media. I set out the relevant section below:
Purpose
The purpose of this policy is to ensure:
• All employees are aware of the organisation's policy for the use of email, the internet and telecommunications. This includes out of hours and private use whenever the use relates to ARV, its staff, clients or residents;
• All employees use email, the internet and telecommunications in a manner that is consistent with this policy;
• There are minimal disruptions to the organisation as a result of the use of email, the internet and telecommunications.
Scope
This policy applies to all employees and contractors of ARV.
General Information
ARV will provide information technology and communications systems to employees and contractors who require these for ARV work. They include but are not limited to email, internet, telecommunications, mobile and desktop devices ("systems").
Each employee who uses the ARV network is to sign their acknowledgment that they have read and understood this policy. A section will be included in the Staff Handbook on out-of-hours and private use, where the use relates to ARV, residents, clients or staff. That section is to be signed and acknowledged by all staff.
ARV systems may be used from time to time for occasional private use in accordance with this procedure. Private use is not to affect work time negatively and must not be
inconsistent with ARV's values and ethos.
Use of ARV and Non ARV Property
In the course of their work, ARV employees and contractors may gain information about ARV, its staff, clients or residents. This information is considered confidential.
Staff must not use any email, internet or telecommunications systems: either ARV or non-ARV systems or devices:
• to communicate any confidential information for non-work purposes about residents, clients or staff, or
• to communicate anything relating to an ARV resident, client or staff member that may cause unreasonable offence to the resident, client or staff member, or
• to communicate anything that may impugn the reputation of ARV, or any part of ARV.
As a guide, if your manager would deem it unnecessary for the information to be communicated for work purposes, do not communicate it. Alternatively, gain the permission of your manager to communicate the information. This includes through social media.
Some common examples of social media are:
• Social network
• king sites, e.g. Facebook, MySpace, Bebo, Friendster
• Professional networking sites, e.g. Linkedln
• Video and photo sharing web sites, e.g. Flickr, YouTube, Blip.tv
• Micro-blogging and activ'1ty stream sites, e.g. Twitter, Jaiku, Yammer
• Blogs and blogging platforms, e.g. WordPress, Blogger, Tumblr
• Forums and discussion boards, e.g. Trove Forum, Yahoo! Groups, Google
• Groups
• Online encyclopaedias, e.g. Wikipedia
• Any other web sites that allow individual users or companies to use simple publishing tools, e.g. wikis
The following also applies when using ARV's email system:
• All emails remain the property of ARV.
• All emails are recorded on a database including those emails that have been deleted. Access to a user's email database can be given to another user by ARV IT staff if required.
• Emails are not private. Email systems record timestamps for all messages received and sent. Emails can be traced and attributed to ARV.
• The use of emails to download computer software is strictly prohibited.
• Emails are not to contain inappropriate material or language including:
● Profanities
● Sexual discrimination or sexual content
● Racial discrimination or related content
● Other discriminatory, defamatory or libellous remarks
• ARV has software installed that scans all emails for viruses, attachments, junk mail and other content that breaches policy. Any email that breaks any of the above rules is quarantined, and will be reviewed for compliance with this policy.
• Employees should not transmit highly confidential or sensitive information by Email. Instead use other means of communication, such as facsimile transmissions, that are more secure.
• Emails are admissible as evidence in legal proceedings.
• The distribution of emails to "everyone" should be used sparingly. It may be more appropriate to publish such information on ARV's intranet.
• To limit impact on the system, the use of graphics should be limited.
• Users are required to regularly clear their mailboxes.
• Employees are not to use the email account of other employees unless the approval of the manager and IT Operations Manager is given.
• Limited personal use of email is permitted provided its use is consistent with policy.
ARV systems must not be used to access internet sites, or to communicate anything that ARV considers offensive, or that is contrary to the ethos and values of the organisation. This includes, but ·,s not limited to: offensive language, sexual or violent content, and anything that is harassing, bullying or illegally discriminating in nature.
Monitoring
ARV will maintain software systems that allow compliance at work with this policy to be monitored and may use these as needed. This will include scanning devices to identify breaches and inappropriate material.
Counselling and disciplinary action
This policy forms a part of the terms and conditions of employment at ARV.
ARV reserves the right to take action to ensure compliance with this policy.
Breaches of this policy will be reported to the employee's manager and may result in disciplinary action. Serious or multiple breaches may lead to termination of employment.
Further information
Employees who require further information in relation to the above should speak to their supervisor, manager or to Human Resources.
Other Stakeholders
• IT Manager
• IT Operations Manager
THE EVIDENCE
[11] The following persons gave oral and statement evidence in the proceedings:
• Ms Nektaria Natoli, the applicant;
• Mr John Macris, the applicant’s partner;
• Ms Sarah Gleeson, Organiser, Health Services Union;
• Ms Vendula Matechova, ex-employee of Anglicare;
• Ms Charlene Jerusalem Oconer, Servery Staff Member;
• Ms Lynette Nicholas, Operations Manager;
• Ms Juliet Buckley, Human Resources;
• Ms Dolyn Nath, Registered Nurse;
• Ms Man Shi, Carer;
• Ms Irene Jerusalem Delaney, Servery Staff Member; and
• Mr Mark Aros, Residential Manager;
Ms Nektaria Natoli
[12] Ms Natoli is an active member and delegate of the Union. She described her early roles working at the facility until her appointment as Servery Supervisor in June, 2012. It is common ground that the applicant received several awards and commendations during her employment, including a CEO Award for Excellence. She claimed to have received regular praise for her work from residents and their families and had received positive performance reviews throughout her employment. The applicant said she had been encouraged to apply for the Operations Manager role in early 2017. It was the applicant’s evidence that she had never been trained in, and was not aware of any social media policies of Anglicare.
[13] The applicant described a number of issues raised by Management in April 2017, which were set out in a letter from Mr Aros dated 17 April 2017. The letter reads as follows:
I am writing to advise you that a meeting has been arranged for you to attend at 3.30 pm on Wednesday 19 April 2017 in my office. The purpose of the meeting is to give you an opportunity to respond to the following matters.
• For fortnight ending 26 March, 2017, you made a claim for approximately 10 hours of over-time which you failed to get proper approval prior to undertaking the over-time. In doing so, you ignored previous instructions you had received about over-time claims, including in the presence of Juliet Buckley from Human Resources.
• When asked to explain why you hadn't got approval for the over-time you blamed Pierra Bell, poster coordinator, for telling you that it was fine for you to do over-time. This was contra to clear instruction given to you previously with regards to over-time claims.
• You take multiple unauthorised cigarette breaks during the day, even though you and all staff have been advised to adhere to break times as per Staff Agreement.
• On at least 1 occasion you have left the facility for 3 hours, without seeking prior approval, to attend the funeral of a resident at Woronora cemetery.
• You attempted to bypass the Contract Change procedure and told Pierra Bell that you had authorised a contract change for a servery staff member reducing her shifts from 3 days to 2 days. This was contra to the Anglicare's commitment to RoL whereby continuity of care is central to improving care and services for residents. You do not have authority to approve contracts and your actions gave the worker false hope that this was acceptable to Anglicare. Now the matter is in dispute with the HSU.
• Your behaviour as servery supervisor and as someone in the leadership team should be an example to others. Instead, it has been observed that you have regularly shown and expressed a negative attitude towards management and Anglicare. This is not in keeping with Anglicare's values and ethos.
Juliet Buckley (HR manager) and I will be present in the interview. You may have a support person with you if you wish.
Given the nature of the matter, I must advise you that disciplinary action is a possible outcome of the meeting. You will be given the opportunity to respond to the matters in detail during the interview, and the outcome will depend on the responses given at the interview and consideration of any other relevant information.
Please note that it is a requirement for you to attend the interview. This means if you do not attend it without notifying management with a reasonable explanation, further action may be taken.
This matter is of course confidential, and I would remind you that it must not be discussed with anyone other than me.
Finally, you might be aware of the availability of the Employee Assistance Program on XXXXX X, and you are welcome to contact the program should you wish to.
[14] The applicant attended the meeting with her Union representative and Management on 19 April 2017 and offered explanations and responses to each of the issues set out in the above letter. However, she now disputes both the allegations and the minutes of that meeting. Anglicare issued her with a written warning which read, in part:
1. Failing to get proper approval prior to undertaking the over-time – as mentioned in the minutes, this has been discussed with you on many occasions.
2. Taking multiple unauthorised cigarette breaks during the day, even though you and all staff have been advised to adhere to break times as per Staff Agreement.
3. Bypassing the Contract Change procedure by advising the Roster Coordinator that you had authorised a contract change for a servery staff member reducing her shifts from 3 days to 2 days.
[15] It was the applicant’s evidence, that prior to August 2017 she had a good relationship with Charlene Jerusalem Oconer (‘Ms Oconer’ or ‘Charlene’). They had a professional relationship and she had acted as her support person when Charlene was alleged to have bullied Mr Aros’s nephew, who also worked at the facility. He has an intellectual disability. (There were no adverse findings against Charlene).
[16] The applicant described two incidents on 29 August 2017, in which she claimed Charlene had expressed frustration with her work (‘I’m sick of this shit’). She was also criticised by another employee (Eva Heuong) for not providing enough servings of puree for the residents. When she raised this matter with Charlene, she walked away. She heard Charlene say, she was ‘picking on her’. The applicant then observed her crying, and when she went to give her a hug, Charlene stormed off. This incident was reported to the Operations Manager, Ms Lyn Nicholas later that day. The applicant explained to Ms Nicholas what had happened and Ms Nicholas agreed to speak to Charlene.
[17] In describing the incident involving the damage to her partner’s (John) car, the applicant said that on 31 August 2017, she drove his car, a distinctive bright blue Ford Ranger Ute, to work and parked it two spots from the smoking area. She believed the car was well known to the staff as her partner’s vehicle. When she finished her shift, she drove to Waterloo to pick up her partner. As she was exhausted, John drove the car home. She did not notice the damage when she got into the passenger’s side. The car was garaged at home all night. The next day, her partner called her at home, (as she was not rostered on), and told her that his workmates had noticed scratch marks from the back passenger door to the rear bumper. He sent her photos of the damage.
[18] The applicant said she was furious at this news and the photos of the damage. Her mind turned immediately to the events of 29 August 2017 with Charlene. She claimed she was not thinking straight due to her anger and this influenced her later actions. The applicant sent a photo of the damage to Charlene by text message and they engaged in the following exchange from 10:37am to 11:20am on 1 September 2017:
Applicant [after inserting picture of what appears to be the damaged car door]: Why would you do this to someone else’s car? You’re a nasty piece of work
Ms Oconer: Why would you accuse me of something I didn’t do?
Applicant: Because I went straight from work to pick up John and then the car was garaged all night and we see this damage this morning! I have 5 pictures. Would you like to see all 5?
Ms Oconer: What evidence do you have it was me?
Applicant: You’re the only one giving me grief at work, it was parked at work all day and it was parked near the smoking area which you utilised yesterday! You selfishly damage a 60 grand vehicle and caused 6 grand damage because of your childish behaviour. This isn’t over Charlene. You have no idea how furious John is!
Ms Oconer: That doesn’t mean that I’m giving you grief, I would go and ruin someone’s car, and especially at work. How dare you message me and accuse me for something I didn’t do. And like I said what evidence do you have it was me. Like seriously Nikki, I’m, not that stupid to do something like that at work placement.
Applicant: I think you are that vindictive!
[19] At 10:56am, the applicant posted some of the photos on Facebook and expressed her anger at what happened. She explained the Facebook post as expressing her anger at the damage. She explained the Facebook post could only be seen by her 63 Facebook contacts and she did mention any names. It reads:
A nasty piece of work in my workplace decided she would teach me a lesson by scratching John’s 60 thousand dollar vehicle, which I was borrowing yesterday. The little fucker didn’t like being told to complete her duties before month end so this is the result. John’s rightfully furious and so am I. Watch out. This is over 6 grand damage!
[20] That day, at 11:24 am she text messaged Ms Nicholas as follows:
Applicant: I’m sending you photos. Charlene damaged John’s car yesterday, which I borrowed yesterday
Ms Nicholas: How?
Applicant: [inserted photos] Car was scratched down the whole side.
[21] On 4 September 2017, at 6.53pm Mr Aros advised the applicant, by phone, that she was suspended with pay, pending an investigation. Mr Aros was sympathetic as to her anger and said he would be angry too if it had happened to his car. He told her she had every right to pull up Charlene, but there was a ‘way to do things and a way not to’. The applicant received a suspension letter that day which read:
I am writing to advise that we are in the process of investigating a serious incident reported to me on Friday 1st September 2017. This investigation will commence immediately and during the course of the investigation you will be on paid leave and will not be required to attend work effective Tuesday 5th September 2017.
It is alleged that on Thursday 31st August 2017, you sent threatening text messages to one of your co-workers - Charlene Jerusalem-O'Connor [sic]. It is further alleged that you posted additional threatening and intimidating messages on Facebook which were shared with former and existing staff members. It is also noted that your partner (John Macris) also posted hostile comments on the same Facebook feed.
The investigation may take a few days and I anticipate that we will be able to meet with you later in the week. I will be providing you with specific details of the issue when we meet and will send you an invitation to attend a meeting when all the relevant information has been gathered.
I want to emphasise that in you being on paid leave, there is no presumption of wrongdoing on your part.
This matter is of course confidential, and must not be discussed with any staff, residents or their families or clients of Anglicare.
Finally, you might be aware of the availability of the Employee Assistance Program on XXX and you are welcome to contact the program should you wish to.
[22] On 7 September 2017, after she was directed to attend an interview the next day, the applicant called Mr Aros and they had the following conversation:
Applicant: Mark can I come in and collect my belongings as judging by the letter I just received, my fate is predetermined?
Mr Aros: No, I wouldn't say that. Are you thinking about resigning and calling it quits?
Applicant: No, this is my career.
Mr Aros: I can't give you details, but I can guarantee that Charlene doesn't walk away scot free. You're pre-empting things. This is really crap, I wish you hadn't dealt with it this way. If worst case scenario tomorrow, I want you to know that we care and we'll give you a chance to leave in a dignified way. You deserve that.
[23] The applicant took the Facebook post down a week later on 8 September 2017. That day, the applicant’s partner called the police and received an event number for his complaint about the damage to his car. Later that day, the applicant attended a meeting at another of Anglicare’s facilities in Kirrawee with the HSU Organiser, Ms Sarah Gleeson. Mr Aros and Ms Juliet Buckley represented Anglicare. The applicant claimed she was ‘open’ in the meeting about the Facebook post and the text messages. When Ms Gleeson raised mediation with Charlene as an outcome (from the investigation), Ms Buckley flatly rejected the suggestion.
[24] A further meeting was held on 13 September 2017. This time, Ms Gleeson explained that work related stress is a growing problem that can affect a person’s behaviour. The applicant said that cutting her days from five to three had been extremely stressful and she had raised the matter in two emails to Management in July, 2017. Mr Aros raised a point about domestic violence and Ms Gleeson had asked her if she was experiencing domestic violence at home. She denied this.
[25] When Ms Buckley dismissed her, the following conversation occurred:
Ms Buckley: Do you have anything further to add from the last meeting?
Applicant: Yes I do. On 29/03/17 Juliet, Mark & I discussed the changes to my role. In this meeting you said that the Operations Manager will take on some of my responsibilities. Prior to Lyn taking 4 weeks annual/eave, I asked Lyn for help twice. I don't have the dates as my computer access has been revoked. In one email for help I told Lyn I was struggling & 'frazzled'. Both my requests for help were met with 'this is your job' and 'this will remain your job'. Assistance from my direct Supervisor to alleviate some of the stress was not forthcoming. I ask now, going forward, that you bestow more courtesy towards your new Servery Supervisor so that he or she doesn't have a public meltdown, like I did.
Ms Buckley: What does this have to do with this case?
Ms Gleeson: Work related stress is a growing problem that can affect people's behaviour.
Applicant: Having my days cut from 5 days to 3 days and receiving no assistance from my immediate supervisor as promised by both of you was extremely stressful on my person.
Ms Buckley: Why didn't you escalate this to Mark?
Applicant: Mark was aware of the situation. I can't remember the dates of the emails, but there were 2 emails in July.
Mark then volunteered the contents of the emails sent. Another thing that sticks out to me is that at this point Mark raised a point about domestic violence. I cannot recall the context, but the meeting was put on hold and Sarah asked me whether I was experiencing domestic violence at home. I told her I was not.
Ms Buckley: Anglicare is terminating your employment as you showed no remorse for your conduct and Charlene fears for her safety around you. This matter is confidential and should not be spoken about with staff, residents, or their families.
[26] The applicant said she kept contemporaneous diary notes throughout this period and attached these notes to her statement.
[27] The applicant gained full time administrative work on 30 October 2017 at another local aged care provider on similar pay and conditions. However, she seeks reinstatement, as she had lost long service leave and sick leave accruals. She claimed that in the first four weeks after her dismissal, she struggled to cope. The dismissal had been ‘very hard’ on her.
[28] In cross examination, the applicant was questioned on a number of documents relating to her employment, including two letters offering her employment (21 September 2006 and 23 August 2011), her Employment Contract Update (17 April 2013) and a change of contract when she went full time in February 2014, and when her classification was changed from Operations Support (OS3 to OS4). The applicant agreed that these documents included a reference to the respondent’s Vision, Values and Policies as follows:
You agree to abide by and support Anglican Retirement Villages' vision, mission and values, together with all policies and procedures.
[29] The applicant also agreed that the respondent’s policies and procedures were all available on the respondent’s intranet (but not in hard copy) by double clicking on the appropriate icon.
[30] The applicant was questioned on the Agreement covering her employment. She accepted that cl 3.3(c) and (d) required her to comply with all Anglicare’s policies and procedures, as amended from time to time; see: para [6] above.
[31] The applicant further accepted that on 20 May 2009, she had signed and acknowledged receipt and understanding of the contents of the Staff Handbook, including the reference at page 24; see: para [8] above. She understood these requirements had not changed since then.
[32] The applicant claimed she had not accessed the respondent’s policy which referred to Harassment and Sexual Misconduct and which reads:
It is the policy of Anglican Retirement Villages that any form of harassment or sexual misconduct in our facility services is unacceptable and will not be condoned or tolerated.
However, she understood that Anglicare had zero tolerance to ‘threatened or actual violence’ and she had read the reference on page 30 to Email and Internet Usage; see: para [10] above.
[33] The applicant acknowledged having attended Bullying and Harassment training on 16 September 2014, which involved watching a DVD. Mr Gee referred her to her statement in which she claimed:
‘I was never provided with any training in either policy stated although I did have access to them. I would say that it is very hard to navigate the intranet to find them.’
She maintained this evidence and denied accessing the intranet was as simple as double clicking on a subject matter. Mr Gee further reminded her of her statement evidence in which she had said ‘I have never been trained in, nor am I aware of any social media policies’. She claimed she had only watched a DVD and the Handbook was not handed out at the same time.
[34] Turning to the warning letter issued to her on or around 19 April 2017, the applicant acknowledged that not all of the issues initially raised by Management, were the subject of the warning. She conceded that she had not challenged the warning letter, or disputed the meeting minutes, until the statement she had prepared for this case.
[35] The applicant was questioned about her recollection of the incident involving Ms Oconer in the Servery on 29 August 2017. She rejected Ms Oconer’s version of events, but did recall she had said ‘watch yourself young lady’. While she denied touching her shortly thereafter, she claimed to have made an attempt to hug her, which Ms Oconer rejected. She denied saying ‘you are like this because you are getting your period’.
[36] The applicant was queried about her email to Mr Aros on 12 April 2017 which read:
Hi Mark
I’m tired of arguing with you. My memory is fine and my documentation is even better.
The October meeting you mention was in September 2015. As I have Juliet’s Remuneration statement and it is dated 02/10/2015, not October 2016.
We met 08/02/2017 regarding the supervision of Laundry and your appointment of an Ops Manager.
The meeting you claim we had 17/03/17 couldn’t have happened as I was on Sick Leave.
I authorise HSU to deal with you further, in this regard, as your continuing falsehoods are very stressful on my person.
[37] The applicant believed Mr Aros had never liked her. She did not accept that this email to her boss was inappropriate. Rather, she claimed Mr Aros had reneged on a prior arrangement he had with her concerning the working of overtime.
[38] Mr Gee closely cross examined the applicant about the events surrounding the damage to her partner’s car. On the morning of 1 September 2017, neither she, nor her partner had noticed any damage to the car. It had been in a locked garage overnight. She accepted that the car could have been damaged on the previous day and had not been noticed. Because of the nature of the scratching, she believed it was highly unlikely the damage was caused by another vehicle.
[39] It was the applicant’s evidence that she left work on Thursday (31 August 2017), sometime between 3.00pm and 3.30pm. Having worked in the laundry all day, she was exhausted at the time. Laundry work is more physically draining than the kitchen shift. It was daylight and she drove about 20km to Waterloo to pick up her partner. Neither of them noticed any damage at the time. As her partner drove his car to work the next day, he would not have seen any damage on the passenger side. She could not say if it was possible the car was damaged after her partner parked it at his workplace.
[40] The applicant could not say if Ms Oconer had known the blue ute was her partner’s car or that she had driven it to work that day. As to the text messages; see: para [19] above) the applicant agreed she had intended to offend her because ‘she is nasty’. However, she had not intended to scare or intimidate her. While Ms Oconer denied inflicting the damage, the applicant gave two reasons why she was accusing her:
• Ms Oconer gave her ‘grief at work’ on 29 August 2017; and
• Ms Oconer smoked and the car was parked in the smoking area of the carpark.
[41] The applicant acknowledged that the car park is a ‘high traffic area’ and other staff go there to smoke. The distinction the applicant drew was the altercation they had two days earlier. She denied trying to hurt or ‘put down’ Ms Oconer, by describing her as ‘selfish’ and engaging in ‘childish behaviour’ and calling her ‘vindictive’. While conceding these comments were insulting, she was angry. She denied wanting to scare Ms Oconer by saying ‘you have no idea how furious John is’.
[42] The applicant then sent a text message to Ms Nicholas; see: para [20] above. She agreed she did not tell Ms Nicholas that Ms Oconer had twice denied her allegation. She denied this omission was unreasonable, as she did not know what she was thinking at the time. However, she was adamant Ms Oconer had inflicted the damage. The applicant was referred to cl 3.3(d)(ii) of the Agreement (‘zero tolerance behaviour including lying, misrepresenting or deceiving conduct… during employment’). She accepted that in circumstances where she was aware Ms Oconer denied her allegations, and she had no evidence that Ms Oconer had damaged her partner’s car, she had misrepresented the position to Ms Nicholas.
[43] Turning to the reference to Anglicare’s zero tolerance towards threatened verbal violence at cl 3.3(d)(iii) of the Agreement, the applicant acknowledged the comment about how furious her partner was, amounted to a threat of violence. She believed that scaring someone is not violence, but she conceded her texts were harassment/bullying.
[44] Mr Gee then questioned the applicant over the Facebook post. She acknowledged the post could be shared with others, through any of her Facebook friends, whether they were her Facebook friends or not. She conceded that once the post was made, she had no control over what her friends decided what to do with it. The applicant agreed she had ‘liked’ her partner’s comment ‘wait till I get my hands on you, you fat piece of shit’.
[45] The applicant conceded that the reference to ‘little fucker’ was to Ms Oconer. However, other employees would not have known it was her, notwithstanding that Ms Fletcher, who was her Facebook friend, had shown the post to Ms Oconer. The applicant acknowledged that Ms Oconer would have known the Facebook post was about her, because of the earlier text messages. She now conceded that the Facebook post was ‘entirely unreasonable’.
[46] The applicant said that Mr Aros’s door was closed all day on 4 September 2017 and she felt she could not interrupt him (to report the damage). She accepted she could have emailed him, as she had done in the past. The applicant also claimed Ms Oconer would leave her work area all the time, even though she was her Supervisor, notwithstanding there was no record of Ms Oconer being counselled or warned about this claim. The applicant said she had applied for leave on 31 August 2017 to deal with stress and her leave was refused. While accepting this was a verbal request, she later formulated her application on 3 September 2017, and left it in Mr Aros’s drawer in the photocopying room. Mr Aros denied ever receiving her leave application.
[47] As to her new employment, it was the applicant’s evidence that she now works 75 hours a fortnight – one hour short of full time employment. She is earning similar pay to when she was employed by Anglicare. She agreed she did not have accrued Long Service Leave (‘LSL’) and will eventually accrue Personal Leave. The applicant acknowledged she was out of work for six or seven weeks and had been paid five weeks’ notice by Anglicare when she was dismissed. When asked about why she had told a prospective employer that ‘I was working for a nursing home but due to budget cuts my position was cut from five days to three and my position downgraded’, she agreed that this was not the reason why her employment with Anglicare had ended.
[48] In re-examination, the applicant said there were thousands of documents on the respondent’s intranet. She had never been told by Anglicare to go through all the documents and, in any event, there would be no time to do so.
[49] In respect to the tone of the email to Mr Aros; see: para [36] above, the applicant said Mr Aros was out by a year when he was trying to put her on a salary. The applicant also said that Mr Aros was wrong when he said she had had a meeting with him and Ms Buckley on 17 March 2017 to discuss her role. She was on sick leave that day. He had also reneged on an agreement he had with her in respect to the working of overtime.
Mr John Macris
[50] Mr Macris responded to his partner’s Facebook post with this:
‘Wait till I get my hands on you, you fat piece of shit!’
The applicant posted a ‘like’ of this comment.
[51] Mr Macris’s statement dealt with a phone call from Mr Aros around 7.00pm on 4 September 2017, to the applicant’s mobile when she was at home. Mr Macris had answered the phone as she was in the shower. When Mr Aros said he wished to speak to the applicant, Mr Macris said she would call him back. However, during their conversation, Mr Macris asked him if anything had been done about the damage to his car, as the repair quote was around $6,000. He added ‘It doesn’t take a brain surgeon to work out who damaged my car and I’m fuming’. It was Mr Macris’s evidence that Mr Aros described the car as a ‘beautiful looking vehicle’ and he understood his anger as he would be furious too (if this had happened to his vehicle).
[52] In cross examination, Mr Macris denied saying to Mr Aros in the conversation that he was so angry last Friday that he felt like coming to Goodhew Gardens to ‘bash Charlene’s head against a wall to extract a confession from her’. While he claimed he did not use this kind of language, he agreed he had replied to his partner’s Facebook post with the words ‘Wait till I get my hands on you, you fat piece of shit!’. He acknowledged this was a reference to Ms Oconer. Taken back to his conversation with Mr Aros, Mr Macris said he would have said something like ‘I was so angry, you know, I felt like tearing her head off and shitting down her throat’.
Ms Sarah Gleeson
[53] Ms Gleeson said that she takes notes whenever she participates in a member’s disciplinary process. She did so during the two meetings she had with the applicant and Management on 8 and 13 September 2017. She attached these notes to her statement.
[54] During the meeting on 8 September 2017, Ms Gleeson had asked Mr Aros and Ms Buckley if Anglicare had investigated the ‘keying’ of the car. The answer was no. There were brief discussions about the allegations against the applicant and her complaints about workload issues.
[55] Mr Gleeson said that at the second meeting, Anglicare noted that the applicant had taken steps to remove herself from any conflict with Ms Oconer. Ms Glesson said that this was a reasonable response. She also said that the Facebook post was never intended to be publically available and it was essentially the applicant ‘blowing off steam’.
[56] Ms Gleeson claimed that the applicant had expressed to her, on several occasions, that she knew she should have differently handled her response to the car damage.
[57] In cross examination, Ms Gleeson explained why her notes have later date references. This was because she modified the original notes, when she added further information on later dates. However, the first entry was created on 18 September 2017 and modified on 19 September. This was five days after the second disciplinary meeting, because she had been travelling in the meantime and had difficulty in accessing a computer. These entries were verbatim copies of her handwritten notes (since destroyed).
[58] Ms Gleeson said she had responded to the statements of Mr Aros and Ms Buckley when Mr Warnes read them to her over the phone. She had read their statements later. Ms Gleeson had expressed the view that the text messages and Facebook post were not of a threatening nature and that based on all these factors and considering the extent of the damage, the applicant’s response was unacceptable, but reasonable.
Ms Vendula Matechova
[59] Ms Matechova resigned from her employment with Anglicare on 5 October 2017. During her two years of employment in the Servery Department, the applicant was Ms Matechova’s Supervisor. She described their professional relationship as ‘great’. The applicant was a nice person with good morals and an easy going approach. She had provided her with a lot of guidance, support and training.
[60] Ms Matechova said she was surprised Anglicare had dismissed such a valuable employee, as she had an excellent relationship with the residents and staff. Due to her caring nature and initiative, the residents’ menu grew in quality. She claimed to have never worked in a better organised kitchen.
[61] Ms Matechova said that when she worked with Ms Oconer she had observed that she had never finished her jobs which left her with extra work. When she complained to the applicant she had observed how patient and supportive she was with Ms Oconer. The applicant always acted professionally towards Ms OConer. Ms Matechova accepted that there were occasions in which employees had disagreements, but these were always sorted out by talking through the issues.
[62] In cross examination, Ms Matechova agreed she had no knowledge of the applicant’s interaction with staff during the morning shift, as she had worked the dinner shift which commenced at 2pm. However, she had occasionally worked the morning shift. There was also around a 20 minute turnaround of the shifts and regular monthly staff meetings, during which she interacted with the applicant, and observed her interactions with other staff.
For the respondent
Ms Charlene Jerusalem Oconer
[63] Ms Oconer has worked at Goodhew Gardens since April 2013 in the Servery Department.She described her work experience with the applicant. They had their ‘ups and downs’, but generally got on okay. However, she felt that the applicant spent a lot of time in her office, rather than in the workplace.
[64] Ms Oconer set out her version of events of 29 August 2017. The applicant ‘barged’ into the serving area around 7.40am, when she was making toast for the residents and loudly questioned her about the cleaning schedules not being done. The applicant had raised her voice in an area where she could be overheard by other staff, the residents and visitors. Ms Oconer responded by saying ‘why are you attacking me, I am not the only one who works here’. At around 12.15pm the same day, as Ms Oconer was preparing lunch, the applicant ‘stormed in’ and the following conversation took place:
Applicant: Why are you giving out the incorrect meals? Joy Marks (resident) isn't on a specific puree-only diet.
Ms Oconer: Yes she is on that diet.
Applicant: No she's not, I didn't get confirmation from the Registered Nurses.
Ms Oconer: You never listen to me.
Applicant: Watch yourself young lady.
[65] Ms Oconer walked away from the area crying and the applicant approached her. The following conversation ensued:
Ms Oconer: Get off me, I don't want you coming near me. Leave me alone.
She was hugging me at this point against my will. I tried to walk back to the Bay and Sands side [sic].
Applicant: You are like this because you are getting your period.
Ms Oconer: No, I'm not. Why don't you come and work on Level 1 and see the pain that we all have to go through.
[66] After her shift that day, Ms Nicholas approached her and asked what was wrong. When she explained what had happened, Ms Nicholas asked what she wanted her to do about the incident. She replied:
‘I don't mind doing the job, I just don't like the way she talks to me and treats me.’
Ms Oconer worked the following two days with the applicant, but they did not speak to each other.
[67] It was Ms Oconer’s evidence that when she received the text messages around 10.30am on 1 September 2017, she had felt attacked and upset. She did not know what to do. She came to work early and reported the matter to Mr Aros, who told her he would take care of it. Later that day, when other staff asked her what was wrong, Ms Fletcher showed her the Facebook post. Ms Fletcher then agreed to show it to Mr Aros. Ms Oconer said she now felt her safety was being threatened and she was upset. Mr Aros advised her to report the matter of her safety to the Police. She attended Miranda Police Station at 1.45pm that day. The Police informed her that they could not do anything, as no names were mentioned in the Facebook post. The Police suggested she go to Sutherland Court on Monday 4 September and seek an AVO against the applicant and her partner. When she did so, she was informed that because she did not know the applicant’s address in order for an AVO to be served, the Court was unable to process her AVO application. Nevertheless, she had kept the paperwork the Court had given her that day.
[68] Ms Oconer insisted she did not damage the car and could not understand why the applicant would accuse her of doing so. She knew the applicant drove to work and parked in a clearly visible staff carpark. Prior to the text messages, she did not even know what John’s car looked like. She had never seen it before and the applicant never described it to her. The only car she had known about was a small blue sedan, which the applicant had driven to work. She occasionally gave her a lift, as she did not have a licence. Ms Oconer said she usually arrived at work before the applicant, so as to have a cigarette prior to commencing her shift. She did not see the applicant drive into the carpark that day, or on any other day.
[69] In her reply statement, the applicant denied Ms Oconer’s version of their conversations on 29 September 2017, notably, that she did not say anything when she tried to hug her to console her. They did not actually physically connect, as Ms Oconer completely moved away. On the following two days, they had worked on different levels, which is why they did not speak to each other.
[70] The applicant claimed she had never heard anything about an AVO, or any other application against her. She said that she would regularly give Ms Oconer a lift from work, as would her son when he picked her up to take her home. Ms Oconer agreed the applicant would occasionally give her a lift home (since July 2017 maybe once or twice).
[71] In her reply statement, Ms Oconer said she was not subject to any disciplinary outcome in early 2017. Her responses to that incident were accepted by management at the time.
[72] Ms Oconer again denied damaging the car. She did not know what John’s car looked like, and the incidents on 29 August 2017 were not particularly unusual or significant, for the applicant to conclude that she would retaliate in such a way.
[73] Ms Oconer expressed concern as to retribution from the applicant, if she was reinstated to Goodhew Gardens. It was Ms Oconer’s view that the workplace is now more peaceful, happier and running smoother, since the applicant had left.
[74] In cross examination, Ms Oconer agreed that at times the work in the Servery is busy and can be difficult to handle. While this was stressful, she had not raised any concerns with Management about workload issues. Ms Oconer said she did not have access to the intranet. She was unaware of Anglicare’s policies and was not aware specifically of any social media policy. She could recall an earlier session in which she had watched a DVD on bullying and harassment. However, since the applicant had left, there had been further training on workplace bullying, harassment and social media usage.
[75] It was Ms Oconer’s evidence that although she responded to the applicant’s text messages, she was worried about the content, as she had felt threatened. Under closer questioning, Ms Oconer agreed she was concerned, but not worried by the first text messages, until she became slightly worried, when the applicant accused her of being ‘vindictive’.
[76] Ms Oconer said Ms Fletcher showed her the Facebook post after she had mentioned the text messages to her. Ms Fletcher had told Mr Aros and then she emailed the Facebook post to him. After this, no one from management spoke to her about the matter.
[77] As to the AVO, Ms Oconer agreed that she did not make any inquiries as to the applicant’s address and gave up pursuing the AVO. However, she was still very worried. She said that she would have still reported the threat to the Police, regardless of Mr Aros having suggested she do so.
[78] Ms Oconer acknowledged that the applicant was a hard working employee who had received various workplace awards and commendations and had received good performance reviews. She agreed that given their relationship, and the incidents, she would have been interested in mediation, if it had been offered to settle their differences.
[79] As to the two 29 August 2017 incidents, Ms Oconer reaffirmed the applicant did make contact with her when she tried to hug her. She insisted the applicant mentioned ‘getting her period’ as the reason she was upset. The reference to the ‘pain’; see: para [65] above, was a reference to the workload issues. Ms Oconer rejected the assertion that she had only said the workplace was happier now, because she did not like the applicant and their relationship had broken down. Ms Oconer acknowledged that she was good friends with Ms Shi, Ms Nath and the other witness was her grandmother. However, she insisted they had not spoken to each other about their evidence.
Ms Lynette Nicholas
[80] Ms Nicholas is responsible for the efficient and effective management of all non-clinical services at Goodhew Gardens, including laundry and servery staff as well as administration. Prior to taking up her current role in 2017, Ms Nicholas was the Workplace Trainer and had delivered all the required regulatory and compliance training to all staff. Ms Nicholas attached a number of the training sessions attended by the applicant during her employment.
[81] It was Ms Nicholas’s evidence that prior to lunchtime on 29 August 2017, Mr Aros advised her of two incidents earlier that day involving the applicant and Ms Oconer; the first was said to involve the applicant yelling at Ms Oconer, which was overheard by another staff member and the second resulted in Ms Oconer crying.
[82] Ms Nicholas held separate meetings that day with both the applicant and Ms Oconer. The applicant had said that cleaning duties had not been completed. She added that Ms Oconer was frequently ‘missing’ at times during the buffet breakfast. She claimed Ms Oconer did not respect her. The applicant agreed that Ms Nicholas would speak to Ms Oconer about her concerns. In a reply statement, Ms Nicholas said that, at no time prior to 29 August 2017, had the applicant raised her claims that Ms Oconer regularly left her work area.
[83] In her meeting with Ms Oconer, she had claimed that the applicant ‘picked on her’. The issue of uncompleted duties was directed to her, and not to the other team members. Ms Oconer requested that the matter not be taken further. In light of this feedback, Ms Nicholas organised a full Servery team meeting on 5 September 2017 to discuss how the team interacted with each other and arranged for ‘refresher’ bullying and harassment training for all staff. Ironically, neither the applicant or Ms Oconer was on duty on 5 September 2017.
[84] Ms Nicholas said that on 1 September 2017 at 11.06am the applicant sent her a text message; see: para [20] above. On 2 September 2017, Ms Nicholas was advised by the Care Supervisor, Ms Sharman of the Facebook posts. Ms Sharman had described the postings as inappropriate.
[85] Ms Nicholas disagreed that it was well known the ‘big blue car’ was the applicant’s partner’s car. The applicant regularly drove a compact Lexus to work. Ms Nicholas did not know what the applicant’s partner’s car looked like, until she received the photos of the damage. Ms Nicholas had no recollection of:
(a) the applicant requesting leave around 31 August 2017, due to the stress of workload issues. If she had, leave would have been approved; or
(b) the applicant reporting the incidents on 29 August 2017 to her, or that she did not want these matters taken further.
[86] Ms Nicholas claimed she would be extremely concerned if the applicant was reinstated. In the meeting she held with the Servery Staff to advise the applicant had left, ‘a couple of staff became particularly emotional’. One employee’s eyes welled up with tears when she described some of the treatment she had been subject to by the applicant. She was so stressed by the applicant yelling at her, that she would go home crying. Other employees nodded in agreement. When she had asked why they did not report this treatment, the employees said that as the applicant was their boss, they were concerned about how she might react.
[87] In cross examination, Ms Nicholas agreed there were no problems in her relationship with the applicant before August 2017. Ms Nicholas did not agree that the workload at Goodhew Gardens was a problem. However, she agreed the applicant had raised workload issues with her in July 2017, and that such issues could be stressful.
[88] During Ms Buckley’s oral evidence, the bullying and harassment training DVD was shown and she answered questions about it. She said the DVD was first used in 2013. Ms Nicholas acknowledged that Anglicare’s bullying and harassment training only required employees to watch the DVD. This was usually on an annual basis and at orientation. The training is no longer given by DVD. Ms Nicholas accepted that the original DVD did not reference the social media policy. This was because social media was not as prevalent as it is now. Ms Nicholas accepted that the original DVD did not point staff towards Anglicare’s policies, or the intranet. Ms Nicholas could not say why the applicant had not received further training since 2014. Ms Nicholas did not accept there were deficiencies in the original training, which is why there was further training after the applicant’s dismissal. It was a good opportunity to ensure everyone was reminded of the policies and procedures of Anglicare. The training was presented by HR, rather than the Workplace Trainer.
[89] As to the text from the applicant to her on 1 September 2017, Ms Nicholas said it was unusual for her to communicate by text. However, it was normal for the applicant to contact her as her direct supervisor, rather than Mr Aros. Ms Nicholas conceded that the applicant worked hard, always got the job done, and had won at least one award for her work and other Certificates of Appreciation. Ms Nicholas accepted that she would not have had a problem with the applicant returning to the workplace, if she and Ms Oconer had sorted out their problems.
Ms Juliet Buckley
[90] Ms Buckley provides HR support to all of Anglicare’s residential aged care facilities in NSW.
[91] Ms Buckley said that around 2pm on 1 September 2017, she received an email from Mr Aros having spoken to him shortly beforehand. The email read:
‘As discussed, I have a situation whereby our servery supervisor, Nikki Natoli, has accused a co-worker, Charlene Jerusalem Oconer of intentionally damaging her car. Nikki is Charlene's supervisor and earlier this week there was a report of animosity between the two which culminated in some yelling. Lyn Nicholas spoke to both staff members and we thought it was finished.
Earlier this afternoon, Charlene came to see me about some text messages which she had received from Nikki. The crux of the messages is that Nikki had driven her partner's car to work the previous day and someone damaged it. She directly accused Charlene of causing the damage. The problem was exacerbated by Nikki posting her allegations on her ‘Facebook’ page.’
[92] Mr Aros sent her the text messages and Facebook post, which had been provided to him by a Registered Nurse, who was the applicant’s friend on Facebook. Both Ms Buckley and Mr Aros agreed that the applicant should be suspended on full pay, pending an investigation. She understood Mr Aros conveyed this decision to the applicant through her partner, who answered her mobile phone on 4 September 2017. Mr Aros recorded their conversation in an email to her shortly after it happened:
‘I called Nikki at 1900hrs to inform her that she was being stood down pending investigation of the incident involving her and Charlene. Unfortunately, John Macris (Nikki's partner) answered Nikki's phone. When I identified myself he said that Nikki was in the shower and he would get her to call me later. He also asked me if Nikki had spoken to me about the incident between her and Charlene. I said that Nikki hadn't but that I was aware of what was happening. I explained my reason for calling was because the incident had been escalated. John said problem had nothing to do with Nikki because it had been his car that had been damaged by Charlene. John also said that he didn't have proof that Charlene had damaged his car; it didn't take a brain surgeon to work out that it had been her. He said he became so angry last Friday that he'd felt like coming to Goodhew Gardens to bash Charlene's head against a wall in order to extract a confession from her that she had damaged his car.
John asked for further details as to why I was calling and re-affirmed that it was his problem not Nikki's problem. I explained to John that I couldn't provide him with specific details of Anglicare's investigation and management of the situation. I asked him to get Nikki to call me instead.’
[93] Ms Buckley set out her version of the meeting with the applicant and Ms Gleeson on 8 September 2017. Ms Buckley had set out the purpose of the meeting and the allegations against the applicant. She explained it was unlikely a final decision would be made that day and a further meeting would need to be scheduled. The applicant acknowledged sending the text messages, as she believed Ms Oconer had deliberately damaged a $60k car as retaliation for their arguments on 29 August 2017. When asked what proof she had, the applicant said ‘no one saw it, it was circumstantial’. Ms Gleeson had said:
‘I didn’t believe the messages were of a threatening nature and were somewhat justified due to the extreme cost to a very expensive vehicle’.
The applicant was asked if she had reported the damage to the Police or escalated the issue to her Manager. The applicant claimed that she had not been supported in the past and this was why she had not escalated the issue.
[94] As to the Facebook post, Ms Gleeson had explained that the post was sent to a private group, and was not intended to be seen by others. Ms Buckley explained that anything on Facebook is not private and, in any event, is in breach of Anglicare’s policies. Ms Gleeson claimed the applicant was unaware of these policies and the posts were the same as a ‘rant at the pub’, and could not be taken seriously. Ms Buckley responded that the information had been seen by many other people and as a direct result, threats were made by others. Ms Gleeson replied ‘Nicki cannot be held responsible for others that commented’. Ms Buckley had said that, it was disappointing the applicant had shown no remorse for her admitted action and no compassion for a staff member who reported directly to her.
[95] In the second meeting on 13 September 2017, Ms Gleeson had sought to clarify the escalation process, because she did not believe the earlier altercation between the applicant and Ms Oconer had been dealt with appropriately. Ms Buckley confirmed the sequence of events on 29 August and 1 September 2017 and stressed the issue is not about the car, but how the applicant handled a situation, involving a person she had responsibility for to ensure their wellbeing. After a break of 20 minutes the meeting reconvened and Ms Buckley said:
‘We believe that Nikki's actions constituted misconduct and in breach of Anglicare's policies around use of Social Media relating to the workplace.
It was determined that Nikki had had sent inappropriate text messages to one of Nikki's staff members making allegations Nikki could not substantiate or prove. The messages were extremely upsetting as Charlene was adamant she was not the cause of the damage.
It was determined that Nikki posted highly offensive and threatening messages on Facebook and whilst they have not intended to be seen by Charlene, the posts were seen by her causing significant distress and concern for her safety.
As a supervisor, Nikki has a responsibility to ensure that staff under your control is kept safe. We believe you have not met the requirements of your position accountabilities.
We believe that Nikki's actions are not in keeping with the Anglicare values of justice in that Nikki has made assumptions about the actions of another staff member with no proof and made no attempt to manage this situation through other means such as involving the police. We also believe that during this process there have been little signs of remorse or compassion about how Nikki's actions have impacted on the health and safety of another staff member.
We finally believe that it would be a completely untenable situation for Nikki to return to Anglicare, particularly Goodhew Gardens and it would be impossible to have a Supervisor looking after staff that they had threatened. We feel that Nikki has crossed the line of what the organisation could tolerate in terms of poor behaviours.’
[96] Ms Buckley believed that Anglicare had lost all trust and confidence in the applicant’s ability to perform her role, in that she had sent intimidating and highly offensive remarks to a subordinate. It would make their working relationship untenable. The applicant’s poor leadership demonstrated an inability to follow, and work in accordance with Anglicare’s policies and procedures as well as its mission and values.
[97] The applicant responded in her statement by stating:
● that she had never been asked if she wanted to take the 29 August 2017 matters further;
● she had not seen any social media policy;
● her statement of service, separation certificate and training records were not provided to her until she asked for them; and
● she believed Ms Buckley’s comments about a loss of trust and confidence in her was contrary to her performance over 11 years of employment.
[98] In a reply statement, Ms Buckley said in respect to the applicant’s 19 April 2017 warning that :
(a) the applicant’s overtime was not authorised and not approved. She had been previously advised, in writing, that she must seek prior approval before working overtime;
(b) the allegations in the warning letter were found to be substantiated;
(c) neither the applicant, nor her Union, challenged the warning letter at the time, or any time subsequently; and
(d) the applicant had never challenged the accuracy of the minutes of the meeting, which had discussed the allegations in the warning letter.
[99] In respect to the 8 September 2017 meeting, Ms Buckley denied telling the applicant she was obliged to report her bullying and harassment to the authorities. She did not say Ms Oconer had gone to the Police to apply for an AVO.
[100] In response to Ms Gleeson’s statement, Ms Buckley said that when Ms Gleeson had asked in the meeting on 8 September 2017, if the investigation included the ‘keying’ of the car, she had said it was a matter for the Police. During the meeting Ms Gleeson had said the car was not insured. There had been no document produced to establish the damage at $6,000.
[101] Ms Buckley emphasised that in the meeting on 13 September 2017, she had said the applicant had made no attempt to contact her direct supervisor, prior to sending the text messages and the Facebook post. Ms Buckley said that Mr Aros did not ask the applicant about any domestic violence issues at home. Rather, he had made a general comment about taking such matters seriously, particularly in light of the community focus on domestic violence.
[102] Ms Buckley also demonstrated the steps required to access Anglicare’s policies on the internal intranet available to all staff. No special access code or login is required. Ms Buckley said a new intranet page was set up about six months ago. All staff were advised by email, that there is a link between the old and new intranet. There are two similar bullying and harassment policies, while the policies are being reviewed to become one. Ms Buckley explained that the old policies are retained in the new intranet link. Access is obtained by going to the HR Department link and then clicking on Managing our People Procedures. There are a number of files in 12 folders. She agreed there could be hundreds of documents sitting behind each folder. Searches also can be made by inputting a word which will link to relevant documents. Ms Buckley said new employees are taken through the procedure during their orientation.
[103] In cross examination, Ms Buckley acknowledged that mediation was raised by Ms Gleeson in the meeting on 8 September 2017. It was rejected because it was believed it would be untenable for the applicant to continue managing Ms Oconer. Ms Buckley agreed Ms Oconer was not asked about mediation. However, she had said she could not work with her again (Ms Buckley had not mentioned this in her statements). Ms Buckley conceded she had not personally spoken to Ms Oconer. Ms Buckley agreed the applicant had not denied sending the text messages or making the Facebook post. However, she was unaware if the applicant was offered an opportunity to apologise to Ms Oconer.
[104] At the second meeting, although the applicant had said the way she dealt with the incident was not ideal, Ms Buckley did not regard this was an expression of remorse. Ms Buckley said that although workload issues were raised at the second meeting, it was a consideration in mitigation. This was not significant in respect to the seriousness of her conduct.
[105] While Ms Buckley agreed the applicant had raised the car damage incident with Ms Nicholas, she did not do so before sending the text messages or the Facebook post. Mr Aros had informed her that three staff members had told him they knew the Facebook post was about Ms Oconer.
[106] Ms Buckley said that Anglicare’s social media policy was introduced in November 2013. It deals with how staff communicate with residents, and each other, using electronic means. While not mentioning social media in a private setting Ms Buckley agreed that social media was only mentioned once throughout the entire training DVD. However, she stressed the DVD is to be read together with Anglicare’s policies and procedures.
[107] It was Ms Buckley’s evidence that she had observed the applicant’s outbursts in the past (this was not mentioned in her written statements). Ms Buckley denied that the implication of the words ‘Watch out’ in the text message meant ‘watch out I’m going to report this to Lyn Nicholas’. Ms Buckley was of the view that the Facebook post was ‘threatening’.
• At no time, until this case, did the applicant tell anyone in Management that Ms Oconer was often away from the workplace.
• Why the applicant raised an incident in which Ms Oconer had been accused of bullying Mr Aros’s nephew, is not entirely clear - although I have my suspicions. In any event, this matter was irrelevant to her own behaviour and the issues to be determined in this case. I note that the applicant omitted to mention that no disciplinary action had been taken against Ms Oconer, as Management had accepted her explanation of the incident.
• While acknowledging she did raise her voice in incidents recorded by Ms Shi, Ms Nath and Ms Delaney, the applicant believed she was justified in doing so. I accept the applicant was prone to yell or shout at staff (more than ‘just raised her voice’), in front of other staff, residents and visitors. This was an inappropriate way of communicating with staff or chastising subordinates. There are no circumstances in which yelling at employees by a Supervisor, is either necessary or appropriate.
• The applicant claimed she did not immediately tell Mr Aros about the car damage because he was ‘unapproachable’. This was inconsistent with the evidence that the applicant regularly communicated with him verbally and by email; moreover, in a tone that was sometimes ‘prickly’ and argumentative; see: the Red Rooster emails.
• The applicant did text Ms Nicholas about the car damage and that Ms Oconer was responsible. Tellingly, she did not inform Ms Nicholas that Ms Oconer denied damaging the car. This was not an unintended omission.
• The applicant sought to explain each of the issues she was warned for in April 2017 (including claiming Mr Aros was at fault because he had reneged on an agreement about overtime). She further claimed the minutes at the meeting about this meeting were incorrect. The applicant was forced to concede that at no time, until these proceedings, did she or her Union representative (who participated in the meeting) challenge the issuance of the warning letter or the veracity of the minutes. This was an attempt at recreating history to call into question justifiable criticisms of her performance.
• There was criticism by the applicant of the respondent’s investigation (and Mr Aros) for not speaking to Ms Oconer after she had informed him of the text messages on 29 September 2017. In my view, it was unnecessary to further involve Ms Oconer in circumstances where:
• Management had clear evidence from other employees as to the Facebook post;
• the applicant had not (and could not have) denied her conduct; and
• Mr Aros had coincidentally spoken to Mr Macris when he answered the applicant’s phone on 4 September 2017. I accept Mr Aros’s version of their conversation; see: par 142 above, and accept Mr Aros’s understandable alarm at Mr Macris’s highly offensive and threatening comments. It my view, the intent of the texts and Facebook post was to scare (as the applicant conceded) and threaten Ms Oconer.
In other words, there was not much to investigate where the evidence was incontrovertible and the conduct was acknowledged. The investigation was more about seeking an explanation from the applicant for her conduct and to provide her with an opportunity to put anything in her defence. She availed herself of this opportunity on two occasions and in the presence of her Union official.
• Although not strongly pressed, there was criticism of Management for not investigating Ms Oconer and the damage to Mr Macris’s car. Firstly, Ms Oconer had consistently denied the damage. Secondly, the issue for Management was not the damage to the car, or who was responsible; rather it was the conduct of the applicant in response to the damage. Thirdly, Management made clear the damage was a matter for the Police. I agree. I note the Police were not notified until a week after the damage was discovered.
• The applicant argued that she could not be responsible for her partner’s threatening and appalling response to her Facebook post which was ‘wait till I get my hands on you, you fat piece of shit’. Of course, this is strictly correct. I may have had some sympathy for that proposition, if she had not posted a ‘like’ of her partner’s comment. It would seem that she agreed with Mr Macris’ comment and then took a week to take the post down.
• The applicant sought to explain that the words ‘Watch out’ in one of the text messages was not a threat; merely a warning to Ms Oconer that she would take the matter to Management. I do not agree. Given the applicant accepted she was angry at the time and the words were not qualified in any way, I am satisfied that a reasonable person, reading this text, would consider the words ‘Watch out’ to be a threat. Her interpretation was weak and ‘grasping at straws’. Moreover, the words appear in the same context as the other words ‘You have no idea how furious John is’.
• Some point was sought to be made that because the applicant had not directly mentioned Ms Oconer by name, that this made her Facebook post not as serious as it might otherwise be. This is nonsense. Apart from acknowledging the reference to that ‘little fucker’ was a reference to Ms Oconer, it was clear that other employees, without speaking to Ms Oconer, knew exactly who she was referring to and conveyed their concerns to Mr Aros. This was another example of the applicant attempting to minimise the seriousness of her conduct and defend the indefensible.
• It was implied in the applicant’s case that there was some doubt as to the seriousness of how Ms Oconer viewed the text messages and Facebook post, because she did not pursue an AVO against the applicant and Mr Macris. Ms Oconer was so concerned with the text messages that she reported them to Mr Aros. I accept his evidence that, at the time, she appeared concerned and not her usual self. Her evidence in the proceedings, which I accept, was:
When you were reading the text messages and replying were you worried at the time about what the text messages were saying?---Yes.
What caused that worry? Was it the fact that you were being accused of something that you didn't do?---Yes.
But there was no - you weren't worried about your safety or anything, were you? It was just - - -?---I was worried.
Okay. What made you worried about your safety? What, in yours and Ms Natoli's relationship would make you worry about your safety?---Because I was threatened. I felt threatened.
• A striking example of the applicant recreating history to cast herself in the best possible light, was when she falsely told her a prospective employer that she had left Goodhew Gardens because of a reduction in her hours of work; see: para [47] above.
[219] I found Ms Oconer to be a reliable and credible witness whose concern with the texts and the Facebook post were understandable and genuine. Indeed, I cannot imagine any person, let alone a young woman, who received such grossly offensive comments, would have reacted in any other way. The fact that she did not pursue the AVO, because she did not know the address of the applicant is explicable in circumstances where she may have felt naturally apprehensive of causing further conflict with the applicant if she took legal action against her and Mr Macris.
[220] I do not intend to make specific findings on the evidence of Ms Shi, Ms Nath or Ms Delaney. Their evidence was largely irrelevant to the question of whether there was a valid reason for the applicant’s dismissal. Mr Gee accepted that their evidence was sought to be admitted on the limited basis going to the practicability of the applicant’s reinstatement. In my opinion, ‘tit for tat’ character references, particularly from employees, former employees, friends or relatives, who have not been directly involved in the incidents or conduct leading to an employee’s dismissal, are not determinative of whether there was a valid reason for dismissal.
[221] That said I can make a general observation (as acknowledged by the applicant herself) that the applicant felt justified to raise her voice in criticism of others, and in the presence of other staff, residents and visitors, I find this behaviour unacceptable and inappropriate conduct, particularly for a Supervisor. This finding is generally consistent with my opinion, that the applicant’s communication skills with subordinates, and even with her superiors, was invariably inappropriate and left much to be desired. Had this been the only criticism of the applicant, and if her stern, ‘prickly’ demeanour had been addressed in an orderly and fair way through a performance review process or otherwise, I believe that she may still be employed at Goodhew Gardens. However, that was not to be. The texts and Facebook post raised the bar to a significantly higher level of serious concern for Management. I agree with this characterisation.
[222] Much was made by Mr Warnes of the alleged lack of training provided to the applicant and limited access to the respondent’s policies, notably the social media policy. I reject the submission that access to the intranet, in order to access Anglicare’s policies was difficult to navigate. As demonstrated in the proceeding, it takes no more than a few steps of clicking into key words and prompts. Even putting aside the fact that the applicant had never complained, in a decade of employment, of any difficulty in accessing the intranet, it is obvious she is not technologically illiterate. Her texting and Facebook usage demonstrates this fact. In her statement, the applicant said ‘I have never been trained in, or am I aware of any social media policies’. This was untrue. I consider that the applicant was well aware of Anglicare’s intranet and the capacity to access the policies and procedures in the system. She had viewed the bullying and harassment DVD in September 2014. Moreover, I believe the applicant was well aware of Anglicare’s social media policy. In addition, Mr Warnes’ attempted to lessen the seriousness of the Facebook post, because she did not name Ms Oconer, or the employer. On the contrary, to my mind, this demonstrated the applicant was clearly aware of what she believed she could not post on her Facebook, and carefully worded it, knowing full well her Facebook friends would know exactly where she worked and who she was referring to, as that ‘little fucker’. In any event, as I said in Little, one hardly needs training on the common sense, self evident expectation that one does not use social media to threaten or harass a subordinate employee, particularly without any evidence Ms Oconer was responsible for the damage to the car.
[223] It never ceases to amaze me that employees often plead a lack of training of self-evident unacceptable conduct, such as bullying or harassment, to justify, in some bizarre way, their behaviour. This is particularly so given the extensive media and community focus on the effects of threatening or harassment behaviour in life generally and the workplace specifically. In my view, an employee does not need training to know that you do not accuse a subordinate of damaging your vehicle, without a skeric of evidence. Further, an employee does not need training to know that you do not scare or threaten a young subordinate by using expressions such as ‘Watch out’ and ‘you don’t know how furious John is’. No employee needs training to know that it is wrong, offensive and inappropriate to Facebook friends to accuse a subordinate of malicious damage, without any evidence and refer to that person as a ‘little fucker’ (knowing that your Facebook friends will know who it is referring to). To then ‘like’ a reply message of the type Mr Macris’s posted exacerbated the applicant’s inappropriate and unacceptable behaviour. I continue to be baffled by employees who use social media to adversely comment on other employees or Management, when they would not dream of saying such things ‘face to face’. To do so, when it is common knowledge a Facebook post can be passed on to others, by anyone who receives it, is just incomprehensible and foolish in the extreme.
[224] In my opinion, Mr Warnes’ emphasis on an alleged lack of knowledge or training on the social media policy, was misconceived. It was little more than a ‘red herring’ designed to deflect what any reasonable person would believe to be offensive and threatening conduct. During the course of the applicant’s defence, it was inferred because the respondent had updated its Bullying and Harassment Policy as a result of this incident, that this demonstrated deficiencies in the original policy. This too was a ‘red herring’. It is common place for employers to review a policy as a direct result of that policy being called into question from an incident in the workplace. It does not necessarily follow that the original policy was unclear or wrong. This is particularly so in this case, where I have observed, it doesn’t take a written social media policy for a reasonable person to know, that what the applicant had done, was contrary to common sense and acceptable behaviour.
[225] Of course, there can be no doubt that up to the warning the applicant received in April 2017, her record of employment was without recorded blemish. Her performance reviews were good. She had received awards and commendations for her performance and diligence to her duties. I am not entirely convinced that all the awards and commendations that the applicant included in her evidence, were for ‘individual performance’, or were more team based, of which she was a part. In any event, the fact that an employee might be a very competent and have no issues relating to their performance, does not mean the employee can rely on that history to exculpate a serious incident of poor judgment, or a breach of policy, or an inability to get on with others in the workplace, or treat them with disrespect and bad temper. As I said in Nakasone v Salvation Army[2017] FWC 2182 at [157]:
‘[157] In my experience, there is always a temptation for a dismissed employee to conflate good work performance to explain or exculpate unacceptable conduct. Just because the applicant had good references and commendations from customers, does not mean that his aggressive behaviour and poor interactions with fellow employees and his supervisor, can just be ignored or dismissed because he was a good performer. In short, performance is not analogous to behaviour/conduct. Put another way, an employee can be a first rate, excellent performer, but have such poor interrelationship skills or contempt for authority, which makes their ongoing employment problematic, if not ultimately, untenable. So it was here.’
[226] Mr Warnes criticised the respondent for not accepting Ms Gleeson’s suggestion that mediation should have been offered in an effort to resolve the differences between the applicant and Ms Oconer. While this might be viewed as a sensible option after the two incidents on 29 August 2017, by taking matters into her own hands by texting and sending the Facebook post, the applicant ensured that their relationship had gone beyond that of an ordinary workplace spat, capable of resolution by mediation. It was open for Management to have assessed the situation as having been elevated to a very serious question of whether the applicant’s ongoing supervision of Ms Oconer was untenable. In addition, the test is not whether the employer could have done more, or something different to address workplace conflict, the test is whether it took reasonable steps to investigate a serious incident and whether its actions and response were proportionate, objective and whether the applicant was afforded procedural fairness. I do not apprehend that Mr Warnes alleged that ss 387(b)-(g) of the Act were not complied with. He submitted these were neutral factors.
Meaning of harsh, unjust and unreasonable
[227] I earlier set out the matters the Commission is required to take into account under s 387 of the Act when determining this matter. I commence with ‘valid’ reason.
[228] The meaning of valid reason in s 387(a) of the Act is drawn from the judgement of North J in Selvachandran. This meaning has been considered and applied by members of the Commission, and its predecessors for many years. For example, in Rode v Burwood Mitsubishi [1999] AIRC 23, a Full Bench of the then Australian Industrial Relations Commission (AIRC) discussed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996, and cited Selvachandran. The following is an extract from the Full Bench’s decision at para [17]-[19]:
“• In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:
“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.
In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. 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 reason 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 each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”
[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).
[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.
See also: Nettleford v Kym Smoker Pty Ltd (1996) 69 IR 370.
[229] In Browne v Coles [2014] FWC 3670, Hatcher VP adopted the ratio of the majority of the Full Bench in B, C and D v Australian Postal Corporation T/A Australia Post in respect to breaches of the employer’s policies in the context of s 387(a) considerations. His Honour said at para [62]-[63]:
‘[62] The Full Bench majority (Lawler VP and Cribb C) in B, C and D v Australian Postal Corporation T/A Australia Post discussed the significance of breaches of employer policies in the context of a consideration of whether there was a valid reason for dismissal in the following way:
“[35]... as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct, on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a “valid reason” should not impose a severe barrier to the right of an employer to dismiss an employee”.
[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.”
[63] I respectfully adopt the above reasoning. There could be no doubt that any act of physical violence (which would include pushing someone) would be a substantial breach of the Code. Mr Browne’s conduct was “wilful” in the sense of being intentional. As I have found, his sense of judgment would have been affected by Mr Hearne’s earlier harassing behaviour and his apprehension that Mr Hearne might strike him. However, that is a matter which I consider (consistent with the reasoning in B, C and D) should be considered in the context of s.387(h) as a relevant matter going to whether the dismissal was harsh, unjust or unreasonable rather than under s.387(a). I therefore find that there was a valid reason for Mr Browne’s dismissal.’
[230] In B, C and D v Australian Postal Corporation, a majority of the Full Bench (Lawler VP and Cribb C) dealt with breaches by a number of employees of Australia Post’s IT policies in respect to the sending, receiving and sharing of pornographic material. In discussing the significance of an employee’s compliance with an employer’s policies and procedures, the Full Bench said at para [61] – [67]:
[61] The formulation, implementation, dissemination and enforcement of polices are a matter within the prerogative of management. The almost infinite variety of businesses and their circumstances necessarily leads to great variability in employer approaches to those matters. In particular, there is great variability in the approach of employers to:
• The form and content of policies. (Employer policies come in all shapes and sizes. Some employers have voluminous policies filled with detailed prescription. Others have polices expressed in broad terms.)
• They way in which employees are educated as to the content of polices.
• The way in which polices are enforced (some employers enforce their policies rigorously, other employers allow a situation to develop where particular breaches of policy go unanswered) and in disciplinary procedures and the approach to disciplinary decision making.
[62] Breaches of policy can often cover a spectrum from the trivial, minor or technical to the very serious.
[63] All or virtually all medium to large employers have a range of policies that employees are required to observe, including a policy against the accessing, transmission or storage of pornography and other unacceptable or inappropriate material and a policy against harassment and victimisation. Most employers train employees in the employer’s policies. Many if not most employers require employees to familiarise themselves with the employer’s policies. Many if not most employers have logon notices reminding employees using the employer’s IT system that they are bound by the employer’s policies. Common experience dictates that such policy training often does not result in enduring employee familiarity with the policies and that logon reminders become, as it were, part of the wallpaper.
[64] The nature of material that will come within descriptors such as “inappropriate”, “unacceptable” or “pornographic” and the like will present as a spectrum. The lines of delineation between appropriate and inappropriate or acceptable and unacceptable are not sharp because they are broad, even amorphous, terms in respect of which reasonable minds might differ. Emailing pornography to a friend or other willing recipient is objectively a less serious breach of policy than emailing pornography to unwilling recipients or for the purposes of harassment.
[65] Particular conduct may breach a policy so as to constitute a valid reason but dismissal for that conduct without prior specific warning may be harsh. For example, an employer may have a policy against swearing in the workplace. Such a policy is supported by the same key reason justifying an anti-pornography policy. Swearing in a workplace can lead to an environment where the risk of abuse, harassment and victimisation, and thus the potential legal liability of the employer, is increased. In each case the policy furthers the legitimate interest of the employer to maintain a workplace where conduct that may cause offence to other employees is minimised. However, one can readily hypothesise a case where the breach of a swearing policy would not be seen by any reasonable person as justifying dismissal. In a workplace where swearing occurs without warnings or disciplinary response, selecting a single instance of swearing by a stressed employee with long and unblemished service as a basis for dismissal would be seen by any reasonable person as harsh and unfair.
[66] In Byrne McHugh and Gummow JJ endorsed the decision in Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 at 456 in the following terms (1995) 185 CLR 410 at 467:
“...von Doussa J considered the example of the dismissal of an accountant who held a position of trust where it was discovered after the dismissal that the accountant had been systematically embezzling money from the employer. His Honour said it would be astonishing if the employer could not resist an allegation that the dismissal was harsh, unjust or unreasonable, within the meaning of the relevant award, by pointing to those facts discovered after the dismissal, so long as they concerned circumstances in existence when the decision was made. His Honour concluded: “Whether the decision can be so justified will depend on all the circumstances. A circumstance, likely to favour the decision to dismiss, would be that fraud or dishonesty of the employee had caused or contributed to the employer’s state of ignorance. A circumstance likely to weigh against the decision would be that the employer had failed to make reasonable inquiries which would have brought existing facts to its knowledge before the dismissal occurred.”(underline emphasis added)
[67] Thus, a failure to monitor compliance or enforce a policy can be a relevant factor that weighs against a finding that a dismissal for breach of the policy was not harsh, unjust or unreasonable. If widespread breaches of policy, of the sort that occurred in this case, occur without an employer response then this weighs against a decision that the dismissal was justified and not harsh, unjust or unreasonable.
[231] I agree with the Vice President and respectfully adopt the reasoning in B, C and D v Australian Postal Corporation.
Was the applicant’s dismissal harsh, unjust or unreasonable?
I turn now to each of the matters the Commission is required to take into account under s 387 of the Act in the context of this case.
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) (s 387(a))
[232] I am satisfied that the content and motivation of the applicant’s text messages and Facebook post were intended to scare, intimidate and threaten Ms Oconer. They are offensive and unacceptable. The applicant’s conduct cannot be explained as a ‘spur of the moment’, single incident, expressed in a fit of anger. They were deliberate acts in circumstances where the applicant was at home (without the diversion of work) and had time to consider how she would respond over the course of an hour. The first text message was at 10.37am and the Facebook post was at 11.45am. The applicant had around an hour to reflect on the facts that Ms Oconer had denied damaging the car and there was no evidence that she had done so. Moreover, I repeat that it took a week before the Facebook post was taken down. I reject Mr Warnes’ characterisation of the incident, as a ‘slip up’, deserving of her being forgiven. Given these findings, it follows that the applicant had breached the employer’s policies and Cl 3.3 of the Agreement. The applicant’s conduct and her breaches of Anglicare’s policies and the Agreement were valid reasons for her dismissal. These reasons were ‘sound, defensible and well founded’.
Whether the person was notified of reason (s 387(b))
[233] The applicant was notified of the reason for dismissal in the ‘show cause’ letter of 4 September 2017 and the subsequent letter terminating her employment. This factor tells against a finding of unfairness.
Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person (s 387(c))
[234] The applicant had two opportunities to respond to the allegations in meetings with Mr Aros and Ms Buckley on 8 September and 13 September 2017. On each occasion, her Union official, Ms Gleeson was present and was actively responding to the allegations against the applicant. She proposed alternative outcomes, such as mediation. This factor tells against a finding of unfairness.
Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal (387(d))
[235] As mentioned the applicant had not only a support person present at the two disciplinary meetings, but had an advocate in her cause, in the person of Ms Gleeson. This is a neutral factor in this matter.
If the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal (s 387(e))
[236] This is a neutral factor in this case as the reason for the applicant’s dismissal was serious misconduct. Nevertheless, there was considerable focus in the evidence on the warning letter of April 2017 for unrelated conduct and performance issues; see: para [13] above. I note that the respondent did not rely on the warning. Anglicare accepted that the conduct criticised at the time, did not recur. That said, the warning cannot be overlooked in the context of the applicant challenging, for the first time in these proceedings, the issues for which she received a warning and the accuracy of the minutes of the meeting held to discuss these issues. Given this attempt to recreate history, no doubt in order to somehow suggest that the warning did not count for anything, and therefore she could justifiably claim an unblemished employment record, I do not accept that the warning has no bearing in this case. However, I acknowledge it does not go to establishing a valid reason for the applicant’s dismissal, based on her misconduct. I propose to consider the warning under s 387(h).
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 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 (ss 386(f) and (g))
[237] The respondent is a reasonably large employer as a provider of aged care facilities and services. As might be expected, it has internal human resources and employment advisors which were consulted by Mr Aros during the investigation of the applicant’s conduct and the disciplinary process. I do not apprehend Mr Warnes to have taken serious issue with the disciplinary process and Management’s handling of the applicant’s conduct and her responses; save perhaps for the criticism of Management not interviewing Ms Oconer; see: para [182] above. In my view, the applicant was treated fairly and given ample opportunity to respond to the allegations against her. In short, she was afforded due process and natural justice. This factor tells against a finding of unfairness.
Any other matters that the FWC considers relevant (S 387(h))
[238] There is no doubt that the applicant’s dismissal has had adverse consequences for her materially and personally, in terms of her career and reputation. I have weighed the various matters Mr Warnes cited as impacting on the ‘harshness’ of the applicant’s dismissal. These include her:
• relatively long service (11 years);
• unblemished work history up to at least April 2017;
• commendations and awards for performance;
• one warning in 11 years of employment; and
• loss of accrual of LSL and personal leave credits.
Together with these factors, I have also taken into account that:
• the applicant was paid five weeks notice, when no notice was payable in the circumstances;
• the applicant secured alternative employment on 30 October 2017, in the same industry and the same local area. Her remuneration and conditions of employment are commensurate to the wages and conditions she received at Goodhew Gardens. The applicant’s actual economic loss was little more than one weeks salary; and
• it may be assumed the applicant did not lose her accrual of LSL, as it was payable pro rata after 10 years’ service. Commencing a new period of service for the eligibility of future LSL credits and personal leave is not unusual and would not ordinarily be viewed as a significant factor going to ‘harshness’.
[239] In balancing all these matters with the seriousness of the misconduct of the applicant on 1 September 2017, and her lack of contrition, I am not satisfied that the applicant’s dismissal was ‘harsh, unjust or unreasonable’, either substantively or procedurally, within the meaning of s 387 of the Act. Accordingly, pursuant to s 385 of the Act, the applicant’s dismissal on 13 September 2017 was not unfair. It follows her application for an unfair dismissal remedy must be dismissed. I order accordingly.
DEPUTY PRESIDENT
Appearances:
Mr T Warnes, of the Health Services Union for the applicant.
Mr B Gee, Solicitor (FCB Workplace Law for the respondent).
Hearing details:
2018.
Sydney.
January 12.
February 15 and 21.
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