Ms Riswan Saunders v OSI International Foods (Australia) Pty Ltd

[2012] FWA 6147

Note: An appeal pursuant to s.604 (C2012/4869) was lodged against this decision - refer to Full Bench decision dated 9 October 2012 [[2012] FWAFB 8640] for result of appeal.

[2012] FWA 6147

FAIR WORK AUSTRALIA

DECISION

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

Ms Riswan Saunders
v
OSI International Foods (Australia) Pty Ltd
(U2011/13908)

COMMISSIONER ASBURY BRISBANE, 19 JULY 2012

Application for unfair dismissal remedy - arbitration - application dismissed.

OVERVIEW

[1] This is an application under s.394 of the Fair Work Act 2009 by Ms Riswan Saunders, for an unfair dismissal remedy in relation to her dismissal by OSI International Foods Pty Ltd (OSI). Ms Saunders was employed as a Process Operator from 22 October 2007 until her dismissal on 15 November 2011. The application for an unfair dismissal remedy was made on 28 November 2011, within the time required in s.394(2) of the Act. Ms Saunders is a person protected from unfair dismissal as defined in s.382 of the Act. OSI is not a small business and the dismissal was not a redundancy.

[2] The matter was dealt with by way of a hearing, as it was considered that this was the appropriate course, taking into account the matters set out in s.399 of the Act and the views of the parties. OSI sought to be represented by a paid agent on the grounds that the Company’s Human Resources Manager at the time of Ms Saunders’ dismissal had recently ceased employment and had been replaced by a person with little knowledge of the relevant events.

[3] Ms Saunders was informed by me of her right to object to OSI being so represented and grounds upon which she could object. Ms Saunders was also given an explanation of the implications for her of OSI being represented by a paid agent, in the event that her application did not succeed and OSI sought an Order for costs. Ms Saunders stated that she did not object to OSI being represented by a paid agent, and on the basis that it would enable the matter to be dealt with more efficiently, Mr Cooper of Livingstones Australia was given permission to represent OSI.

[4] Ms Saunders gave evidence on her own behalf. That evidence was in the form of a witness statement and supporting documents, 1 and a Statement in Reply.2 Evidence for OSI was given by Mr Moses Gitau, Day Shift Production Co-ordinator. Mr Gitau has held that position for two years and six months.3

LEGISLATION

[5] By virtue of s.385 of the Act, a person has been unfairly dismissed if FWA is satisfied that:

“(a) the person has been dismissed;

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

[6] In deciding whether a dismissal is harsh, unjust or unreasonable, FWA must take into account procedural and substantive matters set out in s.387 of the Act as follows:

(a) Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees) and;
(b) Whether the person was notified of that reason; and
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal; and
(e) If the dismissal related to unsatisfactory performance – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) Any other matters FWA considers relevant.

[7] A valid reason for termination of employment is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.” 4 The reason for termination must also be defensible or justifiable on an objective analysis of the relevant facts5, and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.6 In determining whether a reason is valid:

“It is not the court’s function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the court to assess whether the employer had a valid reason connected with the employee’s capacity or conduct...”. 7

[8] A dismissal may be:

● Harsh - because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct;

● Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or

● Unreasonable - because it was decided on inferences which could not reasonably have been drawn from the material before the employer. 8

EVIDENCE

The reason for the dismissal

[9] The reason given by OSI for the dismissal of Ms Saunders was her failure to follow lawful and reasonable directions, and leaving OSI’s workplace without authorisation. OSI is a food manufacturing and distribution business, and prepares cooked and part-cooked products for wholesale sale. There are a number of areas of production relevant to this matter:

● Raw Materials where raw materials such as chicken are defrosted and inspected prior to being sent to other production and prepared for cooking or partial cooking;
● Pack Off area where cooked or partially cooked product is bagged and packed into boxes; and
● Palletising area where boxes of product are placed in other areas to suit operational needs.

[10] The incident giving rise to Ms Saunders’ termination occurred on 11 November 2011. Mr Gitau said that on that date, employees in the Pack Off room were packing cooked meatballs and needed additional help. Ms Saunders and other employees working in the Raw Materials area were instructed by Mr Gitau to go to the Pack Off room to assist. According to Mr Gitau, Ms Saunders refused to go and said that she would perform other work. Mr Gitau told Ms Saunders that she had to go to Raw Materials, and Ms Saunders asked if she could go home. Mr Gitau said that he told Ms Saunders that he could not physically hold her hand and stop her from leaving, but that there would be consequences if she did so.

[11] Ms Saunders left, and Mr Gitau said that he believed she had gone to the Pack Off room. Mr Gitau was then approached by Nathan, a leading hand who told him that Ms Saunders was sitting in the lunch room. Nathan asked Mr Gitau if Ms Saunders could be sent to the Palletising area instead of the Pack Off area and Mr Gitau agreed to this request. Mr Gitau said that he was aware that Nathan instructed Ms Saunders to go to the Palletising area. Mr Gitau later became aware that Ms Saunders had not gone to the Palletising area but instead had left the workplace. Mr Gitau said that Ms Saunders was not authorised to leave.

[12] Ms Saunders did not dispute that on 11 November 2011 she disobeyed an instruction to go and work in the Pack Off room. Ms Saunders stated that she was at her ‘wits end’ because management of OSI had not taken her allegations of bullying in the workplace seriously. Ms Saunders maintained that her supervisors knew that the Pack Off area would be a difficult one for her to work in, having regard to the bullying allegations she had made. Ms Saunders said that when she was requested to go to the Pack Off room, she panicked because she had been bullied in the past by two employees, Ms A and Ms K who were working in that room, and Ms A was the leading hand. Ms Saunders further said that she believed the Company had a duty of care towards her, and putting her in a room with Ms A and Ms K would create a situation that would jeopardise her employment.

[13] Ms Saunders conceded that she left the workplace without authorisation but gave evidence that by that time she was too upset and in emotional turmoil, and that leaving was the only option she felt was available. Ms Saunders said that she asked the Co-ordinator if she could leave if there was no other alternative and was told that she could leave. However, Ms Saunders said that the leading hands knew that she was on her last warning, and told her to wait while they asked the Co-ordinator for an alternative work area.

[14] While Ms Saunders was waiting for an alternative work area to be assigned, she had an altercation with an employee “Gayle”. Ms Saunders said that she was requested by a leading hand to take a pair of rubber gloves to one of her co-workers in the Pack Off area. While she was waiting for that employee to collect the gloves “Gayle” yelled at her that she needed a white coat. Ms Saunders said she yelled back that she may not be working in that area. The person told Ms Saunders that she had become a bitch since she had moved to Raw Materials and Ms Saunders responded by saying: “What - like you”.

[15] Ms Saunders said that after this altercation, she was trembling and upset and made her way back to Raw Materials, stating that she had had a confrontation with someone in Pack Off. Ms Saunders was told that she could work outside in Palletising or go to Pack Off and that these were the only options. Ms Saunders said that by this time she was too upset to go anywhere and although she knew it was her last warning, took the option of going home. Ms Saunders maintained that another employee was brought into Raw Materials when she could have stayed there.

[16] Ms Saunders maintained Mr Gitau did not speak directly to her and did not specifically refuse her request to work in another area. Ms Saunders also said that on 28 September 2011 when she had been requested to work in the Pack Off, Mr Gitau had agreed to her request to go home, rather than work in that area. Mr Gitau agreed that on 28 September 2011, when Raw Materials employees were assigned to the Pack Off area as there was insufficient work for them, he allowed Ms Saunders to go home at her request because there were sufficient employees in the Pack Off area.

[17] Mr Gitau said that Ms Saunders could not have stayed in the Raw Materials area on 11 November 2011, after other employees were directed to the Pack Off area. Mr Gitau said that although he required an employee to clean up the Raw Materials area and complete paperwork, Ms Saunders could not have done this job as she is not trained to use a pallet trolley to move stock or to complete the required paperwork.

Notification of the reason for the dismissal

[18] Mr Gitau gave evidence about two meetings with Ms Saunders on 14 November 2011 and 15 November 2011 at which allegations of leaving the workplace without permission were discussed with Ms Saunders. A record of a meeting with Ms Saunders commencing on 14 November 2011 and concluding on 15 November 2011, was provided to Fair Work Australia as an appendix to the Employer’s Response to Application for Unfair Dismissal Remedy Form F3, filed by OSI on 14 December 2011. Given the gaps in the evidence from both Ms Saunders and OSI in relation to these meetings, I have taken that document into account. The record indicates that Ms Lincoln, Mr Franke and Ms Tamakehu were present at the meeting. Although the record does not indicate that Mr Gitau was present, both Mr Gitau and Ms Saunders gave evidence about meetings on those dates confirming the presence of Mr Gitau.

[19] The record indicates that Ms Saunders was told that she had left the workplace without permission before the scheduled finish time, and that as a result, her employment was to be terminated effective from 15 November 2011.

Opportunity to respond to reason for dismissal

[20] Mr Gitau said that at the meeting on 14 November 2011, he asked Ms Saunders why she left the site, and had not gone to Palletising. According to Mr Gitau, Ms Saunders said that she had refused his instruction to go to Pack Off because she did not want to work there. Mr Gitau told Ms Saunders that he would speak to the Production Manager, Mr Mark Frankes. A subsequent meeting was held between Ms Saunders, Mr Gitau and Mr Frankes. During that meeting Ms Saunders said that after she was directed to go to Palletising, she had an argument with another employee named “Gayle”, and left the site. Mr Gitau said that Ms Saunders alleged that Gayle was picking on her, and that he told Ms Saunders that he would investigate the matter.

[21] Mr Gitau said that he met with “Gayle” to investigate this claim. “Gayle” claimed that she had seen Ms Saunders about to enter the fully cooked area in a coat from the Raw Materials area, which may have resulted in contamination. Mr Gitau considered that “Gayle” was correct in confronting Ms Saunders. “Gayle” claimed that Ms Saunders reacted angrily to the reprimand and an argument ensued, including inappropriate language. “Gayle” was given a warning for this incident.

[22] The meeting record appended to the Employer’s Response to Application for Unfair Dismissal Remedy Form F3, indicates the allegations that she had left work without permission and refused to work in the Pack Off and Palletising areas, were put to Ms Saunders at meetings on 14 and 15 November 2011. The meeting record also indicates that Ms Saunders’ response was that she did not want to work in Pack Off because of the way that they treat her, and that she had an incident during which she was called a “bitch” prior to being asked to work in Palletising, and was unable to continue working. There is an indication that the meeting adjourned at 10.45am on 14 November and resumed at 8.00am on 15 November 2011. It is then indicated that the Company decided to proceed with a warning for repeated failure to follow instructions without a valid reason, and that Ms Saunders was requested to provide specific information on bullying and discrimination to enable an investigation to be conducted. The outcome of the meeting is recorded as follows under the heading “corrective action”:

“4 weeks notice in lieu to be checked with service history and site agreement termination effective today.”

[23] Under cross-examination, Ms Saunders acknowledged that when she told her leading hand that she was leaving the premises he tried to talk her out of it and noted that she was on her last warning. Ms Saunders also agreed that instead of taking the opportunity at the termination meeting to put her case and allegations forward, she agreed with her managers that she had failed to follow a reasonable instruction. Ms Saunders stated that this was because she felt that she could not argue her point at the time, and did not have her diary with her so that she could refer to particular incidents.

[24] Ms Saunders also agreed that when she was requested to attend the meeting on 14 November 2011, she knew that she was on a final warning and that termination of her employment was a possible outcome.

Support person in dismissal meeting

[25] The meeting record indicates that Ms Saunders was asked if she wanted to have a witness present. Under cross-examination, Ms Saunders agreed that she brought a support person to the meeting.

Warning about performance prior to dismissal

[26] According to Mr Gitau there were constant issues with Ms Saunders’ work performance and her relationship with her colleagues and he had numerous discussions with her about these matters including:

● Using two hands to check product;
● Working at a pace so as to keep up with the production line;
● Breaching procedures by putting product from reject bins back on to the line; and
● Kicking a bag of product.

[27] Mr Gitau said that Ms Saunders is an experienced packer and has worked in quality control and understands the process. Mr Gitau said that supervisors were becoming increasingly frustrated with Ms Saunders. Ms Saunders’ evidence made it clear that she had been spoken to about such issues. However, Ms Saunders took a different view of the conduct and maintained that she was being picked on and/or had not been properly trained. In relation to kicking a bag of product, Ms Saunders said that she was moving it with her foot.

[28] On 16 June 2011, Ms Saunders had an issue with the afternoon shift supervisor in the Raw Materials area, where she refused to comply with a direction to move to the other side of the production line. Ms Saunders said that she refused the instruction because she did not think the supervisor’s request was necessary and felt she was trying to exert her authority over Ms Saunders. Ms Saunders also maintained that she had been working on a particular side of the line for 25 minutes doing the task perfectly well and had only five minutes until she was due to sign off. Ms Saunders also said she viewed the request as bullying and not a valid instruction. Under cross-examination, Ms Saunders agreed that there may have been 10 minutes remaining until the completion of her shift, and she knew that she was bound to follow the instructions of supervisors.

[29] Mr Gitau said that he was advised by Ms Saunders’ supervisor that she was working side by side with another employee on the line, and that they were positioned next to a 200 degree cooker. This had been identified as an unsafe practice and the leading hand had instructed Ms Saunders to move to the other side of the line which she refused to do.

[30] Mr Gitau met with Ms Saunders on 20 June 2011 in relation to this matter. Mr Gitau said that he asked Ms Saunders why she had not followed the instruction and her response was that the leading hand was picking on her. Mr Gitau said that in his view, the leading hand had given a reasonable instruction and was not picking on Ms Saunders.

[31] Ms Saunders maintained that she reported her allegations of bullying to Mr Gitau at this meeting and said that if it did not stop she would make a formal complaint. Ms Saunders said that Mr Gitau asked if she was sure and pointed out that this was a serious allegation. Ms Saunders said that at this point she was not prepared to take the matter any further and after that meeting was permanently rostered on to the Raw Materials area. Ms Saunders said that Mr Gitau told her that he would put her into the Raw Materials area where she would not get into trouble.

[32] Mr Gitau said that he did not recall telling Ms Saunders that he would put her in the Raw Materials area where she would not get into trouble, but did tell her that there was no one in that area that she did not like. Mr Gitau also confirmed that Ms Saunders told him she was thinking of making a complaint, and that he told her that this was a serious matter and she should make sure that she had all of her facts right.

[33] There is a “Performance Improvement Form” attached to Ms Saunders’ witness statement indicating that she attended a disciplinary meeting with Mr Gitau on 20 June 2011 and was advised of allegations of unsatisfactory performance in relation to her refusal to comply with a direction from her leading hand to move to the other side of the production line. The form records that Ms Saunders’ explanation was that she only had ten minutes to go until the completion of her shift. The recorded outcome of the meeting is that Ms Saunders agreed to follow all instructions given to her by a leading hand, co-ordinator or manager. According to Ms Saunders, she was also told that she was on her last written warning, and was aware that this was the case when she refused to go to the Pack Off area on 11 November 2011.

The impact of the size of OSI’s enterprise on the procedures followed in effecting the dismissal

[34] OSI indicated in the Employer Response Form F3 that it has 124 employees at its Eagle Farm site. There is no evidence to indicate that the size of the enterprise had an impact on the procedures followed in effecting the dismissal.

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

[35] There is evidence that at the time Ms Saunders was dismissed, OSI had a dedicated Human Resource Manager who was involved in the interview at which matters leading to the dismissal were discussed. Although that person is no longer employed by OSI there is no indication that the absence of dedicated human resource management specialists had any impact on the procedures followed in effecting the dismissal.

Other relevant matters

[36] Ms Saunders provided a detailed and extensive chronology of her work history; her perceptions about the way in which work was organised at OSI; and her views about work colleagues and supervisors. That chronology indicated that in April 2008, Ms Saunders suffered a workplace injury and amputated the tip of the middle finger on her left hand. In relation to workplace bullying, Ms Saunders also set out a series of incidents in her witness statement whereby she alleged that she was watched and picked on by leading hands and subjected to inappropriate comments and conduct by her co-workers. Mr Gitau provided alternative explanations in relation to some of the incidents cited by Ms Saunders as evidence that she was being bullied.

[37] On 9 November 2008, Ms Saunders wrote a letter to the Company 9 “airing concerns ... about suspected bullying” and trying to clarify her position in relation to a number of complaints that a leading hand L had made about her. The letter asserts that Ms Saunders has a thick skin and can tolerate nonsense, but has had enough of it. A complaint is made about Ms Saunders being taken off QA duties and associated concerns. The letter goes on to state that Ms Saunders is being bullied but cannot prove how this is being done because it is a “subtle form of bullying that is hearsay”. There is reference to three people who are said to be in a position to give Ms Saunders orders, but no names are provided. The letter concludes with Ms Saunders stating:

“I hope this makes my story clearer, if not then at least we have somewhere to start discussions.”

[38] In response to her letter, Ms Saunders gave evidence of being requested to attend a discussion with a co-ordinator Mr B. According to Ms Saunders, Mr B read her letter and said that he was also being bullied. Ms Saunders said that the meeting was futile; her concerns were not resolved; there were no real discussions and no action taken. Ms Saunders said that she did not know the procedure for dealing with this sort of thing and this was her first attempt at resolving her uncomfortable situation.

[39] Ms Saunders also gave evidence about a relationship she formed with a male casual employee, Mr S at some time in early 2009. Essentially that evidence was that Ms Saunders wished the relationship to become more than a friendship and her feelings were not reciprocated. Ms Saunders also contended that Mr S formed friendships with Ms K and Ms A and this lead to friction. In this regard, Ms Saunders contended that Mr S began to “play with her emotions” by ignoring her and talking to the other girls. Ms Saunders further contended that her feelings for Mr S became obvious to Ms K and Ms A and their friendship with Mr S was “like a slap in the face”.

[40] Ms Saunders began to keep a diary and between 16 June 2010 and 15 November 2011, made extensive notations about perceived workplace issues wherein complaints are made about co-workers. In early November 2011, Ms Saunders sought assistance from a psychologist who told her to visualise people she was having trouble with as animals. Drawings depicting Ms Saunders’ co-workers in this way were appended to her witness statement.

[41] Ms Saunders said that on 14 October 2011 she told Mr Gitau that she did not want to work with Ms K or Ms A. Mr Gitau said that he could not recall Ms Saunders telling him this. Ms Saunders said that on 14 November 2011, before the meeting in relation to the incidents on 11 November 2011, she submitted a second letter of complaint in relation to bullying, and told the Co-ordinator about the events of 11 November 2011. Ms Saunders was assisted in the preparation of the letter by her psychologist, who she saw on 12 November.

[42] That letter is in the following terms:

“To the Management of O.S.I.

I’m writing to inform you that I am seeing a psychologist to help me deal with a few issues.

I’m asking that you stop the bullying, harassment and intimidation that I have endured throughout the four years I’ve worked here. I now know I do not have to tolerate this kind of behaviour and I will now no longer tolerate it.

If you fail to take action against the bullying, harassment and intimidation towards me, I will consult with an anti-discrimination lawyer. Should she find I have a case she will represent me at the anti-discrimination tribunal.”

[43] Ms Saunders said that after handing this letter to the Co-ordinator, she had another meeting with the Co-ordinator and the Production Manager at which the letter of complaint and the events of 11 November 2011 were also discussed. Ms Saunders was told that the matters would be investigated and given the rest of the day off.

[44] Mr Gitau disputed the incidents and issues raised by Ms Saunders. A number of matters raised by Ms Saunders as evidence of being picked on were said to be matters that had been raised with all employees. Mr Gitau did not dispute that on 14 November 2011 Ms Saunders handed him a letter alleging bullying.

CONCLUSION

[45] It is clear from the evidence that on 11 November 2011, Ms Saunders left the workplace without permission in circumstances where she was told by her supervisor that there would be implications if she did so. Ms Saunders left the workplace notwithstanding her knowledge that she was subject to a final warning for previously disobeying the instructions of a supervisor. It is also the case that Mr Gitau initially directed Ms Saunders to work in the Pack Off area, but at the request of a leading hand allowed her to work in the Palletising area after she expressed concern about his initial direction. Ms Saunders left the workplace notwithstanding Mr Gitau accommodating her concerns, and giving her permission to work in the Palletising area. In my view, this conduct constituted a valid reason for her dismissal.

[46] Ms Saunders was notified of the reason for her dismissal at a meeting that commenced on 14 November 2011 and continued on 15 November 2011. Ms Saunders was given an opportunity to respond to the reasons for her dismissal. The evidence about the meeting on 14 November 2011 establishes that Ms Saunders stated that she did not want to work in the Pack Off area because of the way that they treated her and that she had an incident with “Gayle” that upset her so that she felt unable to work in the palletising area. The meeting adjourned to enable Ms Saunders’ responses about her treatment by employees in the Pack Off area and her altercation with “Gayle” to be considered and investigated. Ms Saunders was offered the opportunity to have a support person present during that meeting, and took that opportunity.

[47] There is evidence that Ms Saunders was warned about her conduct prior to her dismissal. Notwithstanding her perceptions about the validity of the warnings, Ms Saunders’ evidence makes it clear that she knew that she was on a final warning in relation to disobeying instructions from her supervisors. Ms Saunders’ reference to the incident on 16 June 2011, as “the first disobeyed legal instruction from a co-ordinator” is indicative of her knowledge that the instruction she received on that date was lawful. It is also clear that Mr Gitau investigated the incident and formed the view that Ms Saunders’ did not have a legitimate reason for disobeying the instruction and warned her of the implications of such conduct for the future.

[48] There is no evidence that the size of OSI’s business had an impact on the procedures followed in effecting the dismissal. OSI had a dedicated human resource manager at the time of the dismissal.

[49] In addition to the matters set out in s.385(a) to (g) of the Act, I have considered the allegations of bullying made by Ms Saunders. It is apparent from the incidents documented by Ms Saunders that she had a tendency to perceive directions or instructions given to her in the workplace as bullying. A significant number of incidents referred to by Ms Saunders are, on any view, reasonable directions provided to her by supervisors. For example, regardless of whether or not Ms Saunders was kicking a bag of product or simply moving it with her foot, it is reasonable for a supervisor to tell her to desist from such a practice, particularly when the product in question is cooked or partly cooked food. It is also reasonable for a supervisor to tell Ms Saunders to move to the other side of the production line because she was in close proximity to a hot vessel.

[50] It is also apparent that many of the matters referred to by Ms Saunders involved interpersonal relationships with her colleagues. For example, there is a significant amount of attention devoted by Ms Saunders in her diary notes, to the personal relationship she formed with Mr S and her perceptions about the friction with Ms A and Ms K arising from that relationship. While I have no doubt that these matters caused distress to Ms Saunders, they were not made known to the employer and it is doubtful that the employer could have taken any action in relation to them if it was aware of such issues.

[51] The written complaints made by Ms Saunders also lack specificity. The letter of 9 November 2008 does not contain sufficient details of the allegations upon which an investigation or other action could have been taken. Indeed, the letter acknowledges that Ms Saunders cannot prove how she is being bullied. A co-ordinator met with Ms Saunders to discuss the issues raised in the letter but there is no evidence that Ms Saunders provided any further detail at that meeting. In the absence of further details, it is difficult to understand what action Ms Saunders could reasonably have expected would be taken by the Company in response to that letter.

[52] There is no evidence of any further complaint at 11 November 2011 when Ms Saunders was directed to work in the Pack Off or Palletising areas. I do not accept that Ms Saunders’ supervisors knew, or should have known, that she had issues with Ms A and Ms K so that it was not reasonable for them to direct her to work in areas where those employees were working. Ms Saunders did not renew her complaints of bullying until 14 November 2011 after being directed to work in the Pack Off area. At that point, Ms Saunders knew that she had disobeyed a direction from a supervisor.

[53] The evidence about the second letter of complaint is unclear. Ms Saunders said that she provided the second letter of complaint to the Co-ordinator at 5.30am on 14 November 2011. Ms Saunders does not name the Co-ordinator to whom she gave the letter, and Mr Gitau did not give evidence in relation to whether or not he received it. The record of the meeting on 14 November 2011 states that Ms Saunders said that she did not want to work in the Pack Off area because of the way that they treat her, and goes on to state that Ms Saunders was invited to provide further information on bullying and discrimination. There is no reference in the record of the meeting to Ms Saunders using terms such as bullying and discrimination, yet it is recorded that she is asked to provide further information in relation to these matters to enable them to be investigated. The only reference to bullying and discrimination is in the letter Ms Saunders said that she gave to a Co-ordinator on 14 November 2011. I can only conclude that Ms Saunders did provide a letter to Mr Gitau setting out those allegations either before or during the meeting on 14 November 2011, and I accept her evidence on this point.

[54] Accordingly, before deciding to dismiss Ms Saunders, OSI was provided with a letter stating that she had sought treatment from a psychologist to help her deal with bullying, harassment and intimidation. It is also apparent from the report of the meeting that Ms Saunders was asked to provide specific information so that OSI could investigate her allegations. It is not clear whether this request was made on 14 or 15 November 2011. However, given that the request for more specific information is detailed under a heading “0800 15/11/11” it is more probable than not that it was made on 15 November 2011 - after the decision to dismiss Ms Saunders had already been taken.

[55] It is a matter of some concern that an employer the size of OSI, with a dedicated human resources manager, would dismiss an employee after being informed that the employee believed that she had been bullied, harassed and intimidated, and had sought treatment from a psychologist in relation to such matters, without giving the employee a reasonable opportunity to provide further details about those allegations.

[56] However, I am also of the view that this does not, on balance, make the dismissal of Ms Saunders unfair. Workplace bullying is difficult to establish and often involves the word of one employee against that of another, in circumstances where there are no witnesses. Ms Saunders provided exhaustive detail about the alleged bullying, in the form of diary notes setting out her perceptions about various events. I have read all of that material and considered it.

[57] I have also considered the responses provided by OSI to those allegations involving directions to Ms Saunders given by supervisory staff. While it is clear that Ms Saunders genuinely believes she has been bullied, when all of the evidence is considered, it is equally probable that much of the alleged bullying was simply Ms Saunders’ perceptions of reasonable directions given to her by supervisors and leading hands.

[58] Further, I have considered the material provided by Ms Saunders about her interpersonal disputes with co-workers. It appears that many of the interpersonal issues arose from unrequited feelings that Ms Saunders had for Mr S and the friendship he formed with Ms A and Ms K. While this is unfortunate, and undoubtedly caused distress to Ms Saunders, the circumstances do not provide a basis for a finding that her dismissal was unfair. I am unable to accept that OSI could have taken any steps in relation to this matter without a specific complaint from Ms Saunders. There was no complaint until after the refusal on the part of Ms Saunders to comply with directions from her supervisor. When the complaint was made, it was not specific and had been overtaken by subsequent events.

[59] I am also of the view that Ms Saunders was on a final warning and had significant issues with supervisors and colleagues, such that her employment would have come to an end sooner rather than later. In short, Ms Saunders had issues with so many of her colleagues that her position was rapidly becoming untenable. OSI paid Ms Saunders four weeks wages in lieu of notice on termination of her employment.

[60] I dismiss the application by Ms Saunders for an unfair dismissal remedy. An Order to that effect will issue with this decision.

COMMISSIONER

Appearances:

Ms R. Saunders on her own behalf.

Mr B. Cooper on behalf of the Respondent.

Hearing details:

2012.
Brisbane:
March 13.

 1   Exhibit 1 - “Witness Statement for Riswan Saunders, Chronology of Events, October 2007 to November 2011”.

 2   Exhibit 2.

 3   Witness Statement Exhibit 4.

 4   Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 5   Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.

 6   Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.

 7   Walton v Mermaid (1996) 142 ALR 681 at 685.

 8   Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-468 per McHugh and Gummow JJ.

 9   Exhibit 1 Annexure A

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