Ms Vivien Killick v Southlakes Refuge Association Inc

[2016] FWC 2121

[2016] FWC 2121

FAIR WORK COMMISSION

DECISION

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

Ms Vivien Killick
v
Southlakes Refuge Association Inc.
(U2015/14024)

COMMISSIONER SAUNDERS NEWCASTLE, 3 MAY 2016

Application for relief from unfair dismissal.

[1] This decision relates to an unfair dismissal application made by Ms Vivien Killick pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act) against her former employer, Southlakes Refuge Association Inc (the Refuge).

[2] The Refuge is a self-funded charity whose primary role is to provide short term accommodation and support to victims of domestic violence. It does not rely upon government funding; instead its main source of income is derived from four opportunity shops operated by the local Seventh Day Adventist Church community. The Refuge has a yearly budget of $220,000. 1

[3] An employed Director manages the Refuge and is immediately answerable to a voluntary Management Committee. The Board of the Refuge oversees the Management Committee. 2 At the time of Ms Killick’s dismissal, the Board of the Refuge was chaired by Mr Robert Dale and Pastor Kevin Amos was the Deputy Chairperson. Pastor Amos became the Chairperson of the Board in November 2015, and remains in that position.

[4] Ms Killick was initially engaged as a volunteer at the Refuge in or around 1999. In 2001, Ms Killick was employed by the Refuge as the Deputy Director and, in May 2011, was promoted to the employed position of Director of the Refuge. 3 She was dismissed by the Refuge on 12 October 2015.

[5] The Refuge contends that it was a small business employer at the time of the dismissal and Ms Killick’s dismissal was consistent with the Small Business Fair Dismissal Code (the Code). This decision deals only with the question of whether Ms Killick’s dismissal was consistent with the Code.

Chronology of events leading up to dismissal

[6] The relevant events leading up to the termination of Ms Killick’s employment with the Refuge may be summarised as follows:

(a) In May 2013, the Refuge engaged the services of NHN Investigations (NHN) to conduct an investigation into allegations of bullying and harassment that had been made against Ms Killick. Mr John Bacon was the investigator at the time. During this investigation Ms Sallyann Price was Ms Killick’s support person. At the conclusion of the 2013 investigation, Mr Bacon found that the allegations against Ms Killick were unsubstantiated;

(b) On about 31 January 2015, Mr Dale and Pastor Amos received a written complaint from Ms Price, who was at that time the Deputy Director of the Refuge, raising allegations against Ms Killick in relation to, amongst other things, inappropriate comments, verbal abuse and aggressive conduct by Ms Killick towards a number of the Refuge’s clients and a carer;

(c) On 23 March 2015, Mr Dale received a further written complaint by a client of the Refuge, Ms X 4, against Ms Killick;

(d) On 10 April 2015, there was an alleged incident between Ms Killick and another client of the Refuge, Ms Y, regarding Ms Y’s possible relocation away from a safe house run by the Refuge. Shortly after this alleged incident, Mr Dale met with Ms Killick, together with Mr Neil Myers (Treasurer), and Ms Elizabeth Jacobson (Ms Killick’s Assistant) to discuss the situation;

(e) Mr Dale again met with Ms Killick on 21 April 2015, this time with Pastor Amos. There is a dispute about what specific details were discussed during this meeting, however I am satisfied that there was a general discussion between the parties about serious allegations that had been made against Ms Killick. 5 Ms Killick was informed she could either (i) accept a redundancy package6 or retire7, or (ii) choose to have the matters investigated. Ms Killick chose for an investigation to be conducted.8 Ms Killick was informed by the Refuge that she was being stood down on full pay, pending the outcome of the investigation;

(f) On about 24 April 2015, Mr Dale received a written complaint from Ms Y, raising allegations of verbal abuse, threatening and intimidating behaviour and bullying towards her by Ms Killick;

(g) The Refuge confirmed Ms Killick’s suspension of her employment in a letter to her dated 27 April 2015. In this letter, the Refuge confirmed that they had met with Ms Killick on 21 April 2015 to “discuss some serious complaints made by our clients against you concerning alleged bullying and other misconduct”. In addition the Refuge informed Ms Killick in their letter that they had “engaged a private organisation with previous experience with usto conduct an independent investigation of the complaints and associated circumstances” (emphasis added). The private organisation engaged by the Refuge to conduct the investigation was NHN and the investigator was again Mr Bacon, a former police officer;

(h) Mr Bacon conducted an interview with Ms Y on 30 April 2015, Ms X on 5 May 2015 and with Ms Price on 12 May 2015. Ms Jacobson witnessed Mr Bacon commence and conclude the interview with Ms Price, made note of the times of his arrival and departure, and informed Ms Killick of this information approximately one week later; 9

(i) Ms Killick instructed her solicitor, Mr David Predny, to send a letter to the Refuge dated 19 May 2015, setting out her response to the incident with Ms Y on 10 April 2015, and requesting a further opportunity for Ms Killick to respond to the allegations;

(j) Ms Killick was overseas on pre-arranged leave for the period from 21 May 2015 to 7 July 2015;

(k) By letter dated 29 May 2015, the Refuge informed Mr Predny that: “No conclusions will be drawn by the Refuge until such time as the investigation is completed. This includes providing Vivien with a reasonable opportunity to timely respond to specific allegations. If the Refuge were to subsequently propose any disciplinary action against her as a consequence of her response and consideration of the whole matter, she would be afforded an opportunity to ‘show cause’ why such action should not proceed”;

(l) Mr Predny wrote to the Refuge on 1 June 2015, 15 June 2015 and 16 July 2015, requesting particulars of the allegations against Ms Killick;

(m) On 12 July 2015, Mr Dale made a formal complaint against Ms Killick, regarding allegations that Ms Killick had provided misleading information in relation to the incident with Ms Y on 10 April 2015;

(n) The Refuge informed Mr Predny on 20 July 2015 that Mr Bacon would be contacting Ms Killick to provide her with details of the allegations and to arrange an interview within a reasonable time, so that Ms Killick “can provide her considered response to the allegations”. However, the Refuge received the following response from Mr Predny dated 24 July 2015: “Let us make this very clear – our client does not wish to be contacted by your investigator in the manner suggested in your letter… The particulars which we have sought from you on no less than 4 previous occasions should be provided to us. Those particulars can be provided either by you or by the organisation you have commissioned to undertake an independent investigation. Please ensure that in future all communications with Ms Killick whether by you or by your investigator, pass via our office”;

(o) On 5 August 2015, Mr Predny received a bundle of documents from NHN, enclosing the written complaints against Ms Killick, transcripts of the interviews conducted by Mr Bacon with Ms X, Ms Y and Ms Price, and a summary table of the allegations condensed down to the following ten allegations against Ms Killick:

(1) Bullied, intimidated and harassed some clients and staff;

(2) Displayed unprofessional and aggressive behaviour towards some client/s;

(3) Displayed unprofessional behaviour and inappropriate familiarity with client/s and/or their children by encouraging them to refer to her (the Applicant) as “Nanna”;

(4) Breached privacy and confidentiality protocols;

(5) Acted in an improperly demeaning manner towards client/s and staff;

(6) Failed to keep client case management notes in accordance with reasonably expected/accepted refuge management practices;

(7) Provided false and/or misleading information to government agencies and to the Refuge’s Management Board;

(8) Displayed unprofessional and inappropriate conflict management and conflict resolution conduct;

(9) Failed to consistently supply an acceptable level of support and/or show expected compassion for vulnerable clients; and

(10) Failed to employ proper management and operational processes at the Refuge.

The letter also requested for Ms Killick to attend a meeting with Mr Bacon before 14 August 2015;

(p) On 25 August 2015, Ms Killick was directed by the Refuge, through her solicitor, to attend an interview with Mr Bacon prior to 29 August 2015. The Refuge stated:

“On 5 August 2015 you were served with the information and transcripts the independent investigator had obtained from a number of complainants against your client…

Neither we nor the investigator appear to have received any response …

Since 21 August 2015, the investigator has on a number of occasions attempted without any success to speak with you concerning your client’s anticipated response date.

Accordingly, we advise that your client has until close of business on Friday 29 August 2015 to attend an interview with the investigator to provide her response. We have requested the investigator to prepare his independent report after this date. He therefore will have no alternative other than to rely upon your letter of 18 May 2015 that outlined your client’s alleged actions and refuted all assumed allegations.

We believe that your client has been afforded reasonably sufficient time to prepare and present her response to the allegations of serious misconduct against her. We confirm she continues to be paid during this investigation period.” (Emphasis added)

(q) In response to this letter, Mr Predny informed the Refuge on 28 August 2015 that Ms Killick had:

“… only just recently returned from overseas and she had been extremely distressed by this matter. Since her return we have met with her once already to discuss the statements provided by your investigator earlier this month… We are meeting with our client again next week and we will contact you shortly thereafter in order to move this matter forward.”

(r) Ms Killick had in fact returned from overseas on 7 July 2015;

(s) Despite the requests by NHN and the Refuge, no contact was made by Ms Killick or Mr Predny with the investigator to arrange for Ms Killick to attend an interview with the investigator prior to 29 August 2015, or at any other time;

(t) On about 7 September 2015, Ms Killick met with her solicitor and they had a discussion about a perceived pre-existing relationship between Mr Bacon and Ms Price. In letters dated 7 and 21 September 2015, Mr Predny wrote to the Refuge raising allegations of perceptions of bias on the basis that Ms Killick believed that Mr Bacon and Ms Price are both former police officers and know each other from their time in the police force. The Refuge did not receive the letter dated 7 September 2015 until about 21 September 2015;

(u) Ms Killick and Mr Predny did not receive a response from the Refuge in relation to these allegations of perceived bias prior to the termination of Ms Killick’s employment;

(v) On 18 September 2015, the Refuge received the investigator’s report from NHN which concluded that nine of the ten allegations had been substantiated based on Mr Bacon’s assessment of the available information and in the absence of any contradictory information from Ms Killick, apart from the letter from her solicitor dated 19 May 2015; and

(w) On 12 October 2015, Ms Killick received a letter from the Refuge terminating her employment without notice.

Small Business Fair Dismissal Code

[7] Section 388 of the Act provides:

“388 The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”

[8] Section 23 of the Act provides a definition of a “small business employer” for the purpose of the Act. Relevantly, section 23(1) provides that “A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time”.

[9] For the purpose of calculating a number of employees employed by the employer at a particular time:

(a) all employees employed by the employer at the time (including the dismissed employee who has made the unfair dismissal application) are to be counted subject to the caveat that a casual employee is not to be counted unless, at the time, he or she has been employed by the employer on a regular and systematic basis (ss.23(2) & (4) of the Act); and

(b) associated entities are taken to be one entity (s.23(2) of the Act). The expression associated entity has the meaning given by section 50AAA of the Corporations Act 2001 (Cth) (Corporations Act).

[10] At the time of Ms Killick’s dismissal, the Refuge employed three employees 10 - Ms Killick (Director), Ms Price (Deputy Director of the Refuge) and Ms Jacobson (Assistant to the Director). I am satisfied on the evidence, and there is no dispute, that the Refuge employed no more than three employees as at 12 October 2015. There was no suggestion that the Refuge had any associated entities at the time of Ms Killick’s dismissal.

[11] Accordingly, it is not disputed and I am satisfied on the evidence that, immediately before the time of Ms Killick’s dismissal, the Refuge was a small business employer within the meaning of the Act.

[12] The Code declared by the Minister pursuant to section 388(1) of the Act is in the following terms:

“Summary dismissal

“It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[13] In Pinawin v Domingo 11, the Full Bench considered whether, in the context of a summary dismissal under the Code, the Commission had to be satisfied that the serious misconduct which was the basis for the dismissal actually occurred:

“[29] … There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.

[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. The circumstances include the experience and resources of the small business employer concerned.
…

[38] Normally in order to hold a belief on reasonable grounds it will be necessary to have a discussion with the employee about the perceived serious misconduct and pay regard to the explanations and views given by the employee. We are concerned in this case that no discussions took place about the implications of Mr Domingo’s conduct for his future employment. However this is a very unusual case. The employer was very small. The owners knew Mr Domingo well …”

[14] Another Full Bench of the Commission recently examined the summary dismissal part of the Code in detail in Ryman v Thrash Pty Ltd 12and concluded as follows:

“[41] In summary, drawing on the conclusions stated above and the ratio in Pinawin, we consider that the “Summary dismissal” section of the Code operates the following way:

(1) If a small business employer has dismissed an employee without notice – that is, with immediate effect – on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the “Summary dismissal” section of the Code. All other types of dismissals by small business employers are to be considered under the “Other dismissal” section of the Code.

(2) In assessing whether the “Summary dismissal” section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal, and second whether the employer’s belief was, objectivity speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element.”

Reasons for Ms Killick’s dismissal

[15] In the letter of termination dated 12 October 2015, the Refuge informed Ms Killick that her employment was being terminated because they had reached the conclusion that Ms Killick had “engaged in serious and sustained misconduct and poor performance that has caused us to lose trust and confidence in your continuing employment”. The investigator engaged by the Refuge had found that Ms Killick behaved in a bullying, threatening and intimidating way towards clients who were seeking support and protection at the Refuge, in particular, by shouting inappropriately, threatening to take a client’s children away, displaying aggressive behaviour, acting in a demeaning manner by referring to some clients as “prostitutes”, “needy, “inadequate” and “ex-druggies”, and amongst other things, was failing to keep accurate client case management records and was failing to fulfil her role as Director. 13

[16] The investigation report of 18 September 2015 concluded that nine of the ten allegations against Ms Killick had been substantiated in the absence of any contradictory evidence, apart from the letter from Ms Killick’s solicitor dated 19 May 2015. Based on the substantiated allegations, the observations made by the investigator, and Ms Killick’s lack of participation in the investigation (apart from a letter dated 19 May 2015 from her solicitor), the Refuge formed the view that Ms Killick had breached their Code of Conduct and this warranted her instant dismissal. 14

[17] On the question of whether the conduct on the part of Ms Killick relied upon by the Refuge to warrant her instant dismissal meets the definition of “serious misconduct” in regulation 1.07 of the Fair Work Regulations 2009 (Cth), the Refuge relies upon the principle expressed by the Privy Council in Jupiter General Insurance Co Ltd v Andeshire Bomanji Shroff in determining whether an employee’s conduct is serious misconduct: “…it must be remembered that the test to be applied must vary with the nature of the business and the position held by the employee.” 15 The Refuge also submits that consideration must be given to how the complainants might have felt by Ms Killick’s behaviour and whether a reasonable person might also have felt intimidated and abused.16

[18] Pastor Amos gave the following relevant evidence on this point:

“When you talk about clients, what sort of clients do you have at the refuge?---We have women coming out of domestic violence and---

Can I just stop you there? What sort of domestic violence?---Extreme domestic violence, physical and abuse, as in verbal abuse, as well as harassment and the whole range of abuse. And to come to a place where they were then subject to that by a staff member is not acceptable to us. We cannot tolerate or have an abusive staff member working with those who are already abused.” 17

[19] I am satisfied that, if a Director of a Refuge that provides assistance to victims of domestic violence engages in bullying, harassment and/or intimidation of clients of the kind asserted against Ms Killick, such conduct would satisfy the definition of “serious misconduct” in regulation 1.07, in that such conduct:

(a) is wilful and deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment (reg 1.07(2)(a)). In particular, such conduct is inconsistent with the employee’s implied duty of care and, in this case, the Code of Conduct;

(b) causes serious and imminent risk to the health and safety of persons who are victims of domestic violence (reg 1.07(2)(b)(i)); and

(c) causes serious and imminent risk to the reputation and (potentially) profitability 18 of the employer’s organisation (reg 1.07(2)(b)(ii)).

[20] It is important to note that it is the risk to reputation and profitability which must be considered, not whether the reputation or profitability of the employer’s business was in fact damaged. In my view, any conduct by an employee of a Refuge in bullying and harassing clients of the Refuge would give rise to a serious and imminent risk to the operation of the association and to their reputation in the community. I accept Pastor Amos’ evidence in this regard, to the effect that there was a risk of the Refuge being refused referrals, or even being closed down, if a staff member was found to be engaging in misconduct, because such misconduct would jeopardise the Refuge’s obligation to ensure the ongoing safety, welfare and professional support for their vulnerable clients. 19

Was Ms Killick dismissed without notice?

[21] The parties agree that Ms Killick was notified of her dismissal on 12 October 2015 and her dismissal took effect on that day. Prior to this Ms Killick was stood down on full pay for the period between 21 April 2015 and 12 October 2015, pending the outcome of the investigation.

[22] There is no dispute that Ms Killick was dismissed without notice. 20 In addition, the letter of termination confirms that Ms Killick’s employment was terminated without notice effective 12 October 2015.

[23] Therefore I am satisfied that, on 12 October 2015, the Refuge dismissed Ms Killick without notice – that is, with immediate effect – on the grounds that Ms Killick had committed “serious and sustained misconduct and poor performance”.

Did the Refuge believe that Ms Killick had engaged in conduct sufficiently serious to justify immediate dismissal?

[24] Whether the employer genuinely held the belief that the employee’s conduct justified the immediate dismissal is a question of fact. 21

[25] Pastor Amos gave evidence, which I accept, that Pastor Amos, in his capacity, at that time, as Deputy Chairperson of the Board of the Refuge, and Mr Dale, in his capacity, at that time, as Chairperson of the Board of the Refuge, were the decision makers in relation to Ms Killick’s dismissal. 22 They each signed the letter of termination. It is clear that each of Mr Dale and Pastor Amos had actual or apparent authority to make a decision to dismiss Ms Killick.23 By reason of section 793(2) of the Act, it follows that the state of mind of Mr Dale and Pastor Amos in deciding to dismiss Ms Killick can be attributed to the Refuge.24

[26] The Refuge received a copy of the investigation report on 18 September 2015 and reviewed this material before ultimately deciding to terminate Ms Killick’s employment. After reviewing the report, and in consultation with Mr Dale 25, Pastor Amos formed the following view:

“---To us, the allegations were of such a significant and serious nature, we believed that they were the basis of termination, because serious allegations of bullying and misconduct and name-calling, as they are outlined on that matrix, are not the kind of behaviour that we can have for the boss of the running of our refuge.
…

Because this is the second time the allegations had been raised and because of the serious nature of the 10 issues that were addressed we felt it was something that we could not have, and we were of the opinion that we had reasonable grounds for instant dismissal.  It was not an aspect of you can come back and try and do things better, because these were the people that she had dealt with very harshly, and I don't believe we needed to practise Vivien developing better skills on people that she had already dealt partially with.  And we believed, your Honour, that we had grounds for dismissal because the code of conduct says any person who physically abuses or verbally abuses should be dismissed.” 26

[27] The Refuge asserts that the substantiated allegations of bullying, harassment and intimidating behaviour contravened their Code of Conduct insofar as they believed that Ms Killick did not “observe health and safety requirements, and co-operate with all procedures and initiatives taken by the Management Committee in the interests of workplace health and safety”. 27 I note that the Code of Conduct also states that “all staff and volunteers are expected to conduct themselves in a professional and courteous manner” and that “any form of physical or verbal abuse is unacceptable and is ground for dismissal.”28

[28] The termination letter dated 12 October 2015 expresses the reasons for termination as “our conclusion that you have engaged in serious and sustained misconduct and poor performance that has caused us to lose trust and confidence in your continuing employment with the Refuge”. The letter of termination also states that the Refuge based its conclusion on Ms Killick’s response of 18 May 2015, the bundle of documents dated 5 August 2015, the observations of the investigator and the “common underlining pattern of evidence of alleged bullying, manipulative behaviour, and poor performance and disrespect for the management, clients, staff and government authorities.” I accept the proposition that a termination letter provided to an employee at the time of the dismissal may, but will not always, provide the best evidence of the employer’s true belief as to the reasons for dismissal and the grounds for that belief. 29 Whether or not a reason for termination stated in a termination letter is ultimately found to be a true reason for termination will depend upon other evidence.

[29] Ms Killick asserts that the Refuge did not hold a genuine belief that her conduct was sufficiently serious to justify immediate dismissal because Pastor Amos and Mr Dale offered her an ultimatum back on 21 April 2015, to either “retire” or have the matter investigated. Ms Killick asserts that the investigation was prejudiced from the outset insofar as she believed the Refuge colluded and premeditated her termination. 30

[30] Pastor Amos rejected those assertions in his evidence and I accept his evidence in that regard based on my assessment that he gave truthful and reliable evidence as to the Refuge’s true reasons for dismissing Ms Killick. In particular, Pastor Amos believes, amongst other things, that Ms Killick has bullied, intimidated and harassed clients and staff, displayed unprofessional and aggressive behaviour towards clients, and, as a result of that conduct, Pastor Amos no longer has any trust or confidence in Ms Killick as the Director of the Refuge. The letter of termination is consistent with that evidence. I am satisfied that Pastor Amos is, and was on 12 October 2015, of the view that Ms Killick’s employment had to come to an immediate end on the basis of her misconduct.

[31] I also reject the suggestion that the option given to Ms Killick back on 21 April 2015 to either have the matters investigated or “retire” (or resign) constituted either a threat or bullying behaviour towards Ms Killick. The Refuge had already decided that it would engage an investigator to investigate the serious allegations made against Ms Killick. 31 The Refuge was simply providing Ms Killick with a choice between participating in an investigation or bringing her employment to an end. I am satisfied on the evidence that Ms Killick was not pressured to bring her employment to an end. She made the choice to proceed with the investigation and that is what happened. Further, I reject the assertion that the options proposed to Ms Killick on 21 April 2015 demonstrated, or gave weight to the contention, that the Refuge had predetermined the outcome of the investigation. The choice presented to Ms Killick was a genuine one, as was the investigation which was undertaken after she made her choice.

[32] For the reasons set out above, I am satisfied that the Refuge genuinely believed that Ms Killick’s conduct was sufficiently serious to justify her immediate dismissal.

Was the Refuge’s belief based on reasonable grounds?

[33] A relevant consideration to the question of whether the employer’s belief was based on reasonable grounds is whether the employer carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. 32

[34] The Refuge commenced an investigation into the allegations made against Ms Killick in April 2015 and stood her down on full pay so that she was not financially disadvantaged. 33 Notwithstanding the small size of the Refuge and its limited budget ($220,000 per year)34, the Refuge decided to engage, and pay for, an experienced independent investigator to investigate the allegations against Ms Killick. The Refuge took this course due to the serious nature of the allegations and to ensure the investigation was conducted in an impartial manner.35 Mr Bacon, the investigator, interviewed the complainants during the months of April to July 2015 and prepared a transcript from those interviews, together with a summary of the allegations against Ms Killick.

[35] Ms Killick asserts that the investigation was not reasonable because Mr Bacon made observations without speaking to her or other witnesses and further asserts that she was not provided with an opportunity to respond to the allegations. Ms Killick also submits that the investigation was one-sided, biased and prejudiced.

[36] Ms Killick gave evidence during the hearing that there were two reasons why she did not participate in an interview with Mr Bacon or provide any further written response to the allegations: first, Ms Killick had not finished reviewing the 200 plus pages of allegations and complaints; and secondly, her perceived allegation of bias towards the investigator, Mr Bacon. 36

[37] As to Ms Killick’s assertion that she was not provided with a sufficient opportunity to respond to the allegations, Ms Killick had the transcripts of interview, summary table of allegations and letters of complaint in her possession from 5 August 2015 until the decision to terminate was made on 12 October 2015. That was a total period of 9.7 weeks for Ms Killick to review the allegations, meet with her solicitor, and to provide a written response and/or attend an interview with the investigator. Ms Killick gave the following evidence when asked how long it took to read through the documentation:

“It took me a long time, because first of all I was getting so upset every time I picked them up to read. When you’re reading these disgusting things said about you, things I hadn’t done, and things which had been made up, I just – you know, you just can’t do it all the time. I sat there one Sunday for eight hours looking through the statement from [Ms Y], and going through every paragraph with my response which – my version of what did in fact happen, because I knew I’d need that.” 37

[38] In circumstances where Ms Killick was suspended on full pay during the investigation and therefore had no other employment obligations during this time, had received full particulars of the allegations on 5 August 2015, had met with her solicitor on six occasions between 5 August and 12 October 2015, 38 had not agreed to an employer’s direction to attend an investigator’s interview, and still had not provided any response 9.7 weeks later by 12 October 2015, I am satisfied that Ms Killick had a reasonable period of time to respond to the allegations.

[39] The second reason relied on by Ms Killick for not responding to the allegations or participating in an interview with Mr Bacon was due to her allegations of perceived bias. Ms Killick asserts that Mr Bacon had a previous professional relationship with Ms Price and this led to a one-sided and biased investigation.

[40] During the May 2013 investigation, Ms Killick recalls Mr Bacon entering the room and Ms Price saying: “Hi, John, how’s your wife?” Mr Bacon gave evidence that he did not recall Ms Price making such a statement. 39 Ms Killick gave evidence that, at the time (2013), she asked Ms Price, “oh, you knew him [Mr Bacon]?” to which Ms Price responded, “yes, we used to work together in the police force”.40 It was also Ms Killick’s evidence that she believed Ms Price worked in the police force from around the 1980s to the early 2000s.41

[41] Mr Bacon gave evidence that he was a member of the New South Wales police force from 1970 until he resigned in 1990. 42 Mr Bacon denied that he knew Ms Price from his time in the police force.43 Mr Bacon gave evidence that he first met Ms Price when she was acting as a support person for Ms Killick in the 2013 investigation.44 I accept the truthfulness and accuracy of Mr Bacon’s evidence that he did not work with Ms Price in the police force and he did not know her prior to his investigations into the 2013 allegations. Mr Bacon gave direct and responsive answers to the questions put to him in cross examination, and struck me as a witness of truth. He had no reason to lie, and I am satisfied that he would have recalled if he had worked with Ms Price in the police force. I find, on the balance of probabilities, that Ms Killick is mistaken in her recollection of the statements she says Ms Price made in 2013, as set out in the previous paragraph. Those conversations occurred some time ago and there is no contemporaneous note or record to support Ms Killick’s recollection of them.

[42] For the reasons set out in the previous paragraph, I find, on the balance of probabilities, that Mr Bacon did not know, or have a prior relationship with, Ms Price, other than in connection with his investigation into the 2013 allegations. Accordingly, there was no proper basis for Ms Killick to have any perception of bias, although I note, and find that, Ms Killick genuinely believed that Mr Bacon worked with Ms Price in the police force.

[43] In addition, I am satisfied that Ms Killick’s perception of bias against Mr Bacon was not a reasonable basis for her not to respond to the allegations against her, or agree to participate in an interview with Mr Bacon, for the following reasons:

(a) First, although it is regrettable that the Refuge did not respond to the letters sent on behalf of Ms Killick dated 7 and 21 September 2015 alleging perceptions of bias, this issue was raised very late in the process by Ms Killick. In particular, Ms Killick was aware from as early as May 2013 of her belief that Mr Bacon and Ms Price had a prior working relationship. Ms Killick was aware in April 2015 that Mr Bacon had been engaged to conduct the investigation. Ms Killick was told by Ms Jacobson in May 2015 that Mr Bacon had spent about 4 hours interviewing Ms Price. Although Ms Killick was not aware at that time that Ms Price had made a complaint about her, the fact that Mr Bacon had conducted a lengthy interview with Ms Price in May 2015 was sufficient knowledge for Ms Killick to raise any concerns of bias she had about Mr Bacon at that time. Instead, no such allegations were made until the letters dated 7 September 2015 (which the Refuge did not received until about two weeks later) and 21 September 2015. By that time, Ms Killick had already had over a month to respond to the detailed allegations and the deadlines for her to respond had passed;

(b) Secondly, even if it were true that Mr Bacon had worked with Ms Price at some time earlier in the police force, that fact, without more, would not, in my view, cause a fair minded lay person to reasonably apprehend that Mr Bacon would not bring an impartial or unprejudiced mind to the matter being determined. Ms Killick did not give any evidence to suggest that she was aware of (i) when Mr Bacon worked with Ms Price, (ii) for how long Mr Bacon worked with Ms Price, (iii) what was the nature of the working relationship between Mr Bacon and Ms Price (for example, was one the manager of the other?), or (iv) whether Mr Bacon and Ms Price worked closely or in the same location or region. Taking Ms Killick’s case at its highest, she says that Ms Price must have known Mr Bacon quite well because she asked about his wife in 2013. Asking a person how their wife is does not, in my view, necessarily establish a close relationship. Many people in modern society have worked with others in different organisations throughout their career. The mere fact of a prior working relationship does not, in my view, create a reasonable perception of bias;

(c) Thirdly, Mr Bacon investigated the allegations against Ms Killick in 2013 and found them not to be substantiated. Ms Killick did not have any complaints about the fairness or otherwise of Mr Bacon’s investigation in 2013. Although the 2013 investigation did not include allegations by Ms Price against Ms Killick, the fact that Mr Bacon undertook that investigation and made findings without any complaint by Ms Killick should have provided her with a level of comfort that he would bring an impartial and unprejudiced mind to the investigation in 2015; and

(d) Fourthly, Ms Killick says that she first raised her concerns about perceptions of bias with her solicitor in early September 2015. 45 By that time, Ms Killick had already had a reasonable time to respond to the allegations provided to her on 5 August 2015. At the very least, Ms Killick could have responded in August 2015 to the summary table of allegations, and requested further time, if she needed it, to respond to any particular statements contained in the transcripts of interview or letters of complaint.

[44] When considering whether a reasonable investigation has been carried out, it is also relevant to consider the experience and resources of the small business employer. 46 The Refuge stood Ms Killick down for a period of five months and three weeks, and continued to pay her salary throughout this time. In my view this is a significant amount of time for a small business to continue an employee’s salary, especially given the evidence produced in relation to how the Refuge derives its income and manages a budget of $220,000 annually. Furthermore, the Refuge does not have the expertise or assistance of an internal dedicated human resources specialist and, instead, paid for NHN, an external investigation company, to conduct an independent investigation on its behalf. In my view, this goes beyond what most small business employers would have done in the circumstances.

[45] Ms Killick asserts that the investigation was unreasonable because neither the investigator nor the Refuge interviewed a number of witnesses she says would have given relevant information and evidence on her behalf, namely Ms Elizabeth Jacobson, Constable Jodie Wilson and Mr Neil Myers.

[46] On this issue Pastor Amos gave the following oral evidence:

“… The purpose of the investigation is to have details from Vivien herself, and in her discussion with the investigator if she wishes to then collaborate her story with other witnesses, it was her prerogative to then share that information with the investigator and to direct him.” 47

[47] Mr Bacon gave the following evidence in relation to the process of his investigation:

“Is it your practice that you would interview every name, every person that’s identified, whether they’re relevant or not, or do you form an opinion as to whether they are relevant first before you undertake that task?---I certainly wouldn’t interview every person whose name, let’s say, was brought up in – how would I put it – by people that I did interview. I suppose, yes, I would draw an assessment as to the relevance of those people…” 48

[48] Mr Bacon gave evidence that he had authority from the Refuge to interview whoever he thought should be interviewed in order to complete his investigation and make findings in relation to the allegations. 49 Mr Bacon formed the view, after interviewing each of the complainants, that he should interview Ms Killick and then, depending on her responses to the allegations, potentially interview any other relevant witnesses.50 Because Ms Killick did not agree to participate in an interview with Mr Bacon and he had detailed information from the complainants, Mr Bacon proceeded to make his findings on the information provided to him and prepare his report.51 In his report, Mr Bacon made reference to the fact that: “During the course of our interviews with those parties [the complainants], various other persons were identified. Those persons include [eight named persons and other Refuge clients who could be identified by Ms Price].” Mr Bacon was obviously aware that those persons could have provided information relevant to the allegations against Ms Killick. Mr Bacon also gave evidence, which I accept, that he would have sought the consent of the Refuge, or made plain in his report, if he believed he needed to interview a witness in order to make a finding.52 Mr Bacon did not do any such thing in this case; he believed he had sufficient information and a proper basis to make the findings that he did.

[49] The Full Bench of the Commission in BlueScope Steel Limited v Peco Sirijovski and Peco Sirijovski v BlueScope Steel Limited   made the following observations in relation to interviewing all persons in an investigation:  53

“There are practical limitations on the extent to which investigations can be conducted into workplace incidents. The essential requirement is that a proper investigation is conducted, and that the employee concerned is informed about the results of the investigations and is given a fair opportunity to respond. The failure to interview all persons in a particular workplace or performing similar functions does not necessarily warrant a conclusion that the conduct of the investigation was deficient.”

[50] In circumstances where Ms Killick did not agree to attend an interview with the investigator and did not otherwise respond to the investigator’s allegations, I am satisfied that the fact the investigator did not interview other witnesses who could have provided information to support Ms Killick does not warrant the conclusion that the investigation was unreasonable. Mr Bacon agrees with the proposition that, if Ms Killick had participated in the investigation process, perhaps the outcome may have been different. 54 However, even if these witnesses were interviewed, it is likely that they would only have been able to comment on the allegations surrounding Ms Y and the incident on 10 April 2015. The allegations against Ms Killick are much broader than those raised solely by Ms Y, with the consequence that interviewing the additional witnesses would have been unlikely to result in a different finding by the Refuge concerning serious breach by Ms Killick of the Code of Conduct.

[51] Normally in order to hold a belief on reasonable grounds it will be necessary to have a discussion with the employee about the perceived serious misconduct and pay regard to the explanations and views given by the employee. 55 That did not happen in this case in relation to the full allegations that were communicated to Ms Killick on 5 August 2015. However, Ms Killick was given a reasonable opportunity to participate in an interview with the investigator and/or make a written response to the allegations against her. She did not take up that opportunity.

[52] Ms Killick also asserts that the investigation was unreasonable because particulars of the allegations were not provided to her until 5 August 2015. I reject that assertion. The investigator needed to interview each of the complainants to obtain details from them before the particulars of the allegations could be put to Ms Killick. That is what Mr Bacon did. The important point is that those allegations were put to Ms Killick and, in my view, she had a reasonable opportunity to respond to them.

[53] I reject Ms Killick’s contention that the investigation was one-sided, biased and/or prejudiced. Mr Bacon is a very experienced investigator. I am satisfied that he brought an unbiased and impartial mind to his investigation. He undertook a detailed investigation and made findings based on the evidence before him.

Support person

[54] Ms Killick contends that the Refuge failed to comply with the following requirement in the Code because it did not give her the chance to bring a support person to the meeting on 21 April 2015:

“Procedural matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist.”

[55] I reject this argument for two reasons:

(a) First, the meeting on 21 April 2015 was not a “discussion with an employee in circumstances where dismissal is possible”. The meeting took place shortly after a number of allegations had been made by various people against Ms Killick and the Refuge had decided that an independent investigation should be conducted. 56 There was no possibility that Ms Killick would, at or shortly after the meeting on 21 April 2015, be dismissed by the Refuge. At the meeting Ms Killick was told of the nature of the allegations, that NHN had been engaged to undertake an investigation, that she was being stood down on full pay during the investigation, and that she could choose to accept a redundancy package57 or retire58, rather than participate in an investigation. The purpose of the meeting was to inform Ms Killick that serious allegations had been made against her and to provide her with information about the process that would take place. The Refuge had not made any finding, or formed any view, on 21 April 2015 as to whether there was any merit in the allegations. In those circumstances, the discussions with Ms Killick on 21 April 2015 were not “discussions with an employee in circumstances where dismissal is possible”; and

(b) Secondly, Ms Killick did not request that a support person attend the meeting with her on 21 April 2015. Accordingly, there was no failure by the Refuge to permit Ms Killick to “have another person present to assist” in that meeting.

Valid reason

[56] Ms Killick contends that her dismissal was inconsistent with the Code because there was no valid reason for her dismissal. I reject this contention. In circumstances where, as in the present case, an employee of a small business employer is dismissed for serious misconduct within the meaning of reg 1.07, the issue of whether or not there was a valid reason for the dismissal does not arise (s.396 of the Act and the “summary dismissal” part of the Code).

No previous warning

[57] Ms Killick submits that her dismissal was inconsistent with the Code because she was not warned about unsatisfactory performance or conduct. I reject this argument. The “other dismissal” part of the Code requires that an employee be warned that “he or she risks being dismissed if there is no improvement”. However, there is no such requirement where, as is the case here, the “summary dismissal” part of the Code is applicable.

Conclusion

[58] For the reasons set out above, I am satisfied that:

(a) immediately before the time of Ms Killick’s dismissal, the Refuge was a small business employer within the meaning of the Act;

(b) on 12 October 2015, the Refuge dismissed Ms Killick without notice – that is, with immediate effect – on the ground that Ms Killick had committed serious misconduct;

(c) the Refuge dismissed Ms Killick on the basis of conduct which meets the definition of “serious misconduct” within the meaning of reg 1.07;

(d) the Refuge genuinely believed that Ms Killick had engaged in conduct sufficiently serious to justify immediate dismissal;

(e) the Refuge undertook a reasonable investigation and reached a reasonable conclusion in all the circumstances; and

(f) the Refuge’s belief that Ms Killick had engaged in conduct sufficiently serious to justify immediate dismissal was based on reasonable grounds.

[59] It follows that Ms Killick’s dismissal was consistent with the Code. Accordingly, Ms Killick was not unfairly dismissed within the meaning of section 385 of the Act and her application is dismissed.

[60]
I note that I have not made any findings as to whether there is any substance to any of the allegations made against Ms Killick. I will not have the opportunity to make any such findings in light of my conclusion that Ms Killick was employed by a small business employer and her dismissal was consistent with the Code.

COMMISSIONER

Appearances:

Mr B Taylor of counsel, together with Mr D Predny, solicitor, for the applicant;

Mr M Baroni, solicitor, for the respondent.

Hearing details:

2016.

Newcastle:

April, 1.

 1   Exhibit A1 at [9]

 2   Exhibit A1 at [7]

 3   PN448-450

 4   I have not included the real name of any of the Refuge’s clients in this decision. They are vulnerable people. Disclosing their identity, or the name they now use, may expose them to the risk of further domestic violence.

 5   PN107 and PN525

 6   PN69

 7   PN528

 8   PN532

 9   PN839-840

 10   Exhibit A1 at [12] and PN851-852

 11   [2012] FWAFB 1359

 12   [2015] FWCFB 5264

 13   Exhibit A1 at annexure [P]

 14   PN342

 15 [1937] 3 All ER 67 at [73]

 16   Slater v Patrick Port Logistics Pty Ltd[2012] FWA 7204 at [156]

 17   PN314-316

 18   Depending on any subsequent legal claim arising from the conduct and the outcome of such a claim

 19   PN328 and Exhibit A1 at [51]

 20   During the hearing, Mr Taylor, counsel for Ms Killick, accepted that Ms Killick was dismissed without notice. See PN948 – 949

 21   Ryman v Thrash at [43]

 22   PN207 and the letter of termination, which was signed by both Pastor Amos and Mr Dale

 23   PN195 & PN201, and the letter of termination, which was signed by both Pastor Amos and Mr Dale.

 24   Ryman v Thrash at [43]

 25   PN207

 26   PN206 and PN342

 27   Exhibit A1 at [53]

 28   Exhibit A1 at annexure [Q]

 29   Steri-Flow Filtration Systems (Aust) Pty Ltd v Erskine[2013] FWCFB 1943 at [33]

 30   Exhibit 4 at [3(d)] and [25]

 31   Exhibit A1 at [26]

 32   Ryman v Thrash at [41]; Pinawin v Domingo at [30]

 33   PN137

 34   Exhibit A1 at [9]

 35   PN108 and PN137

 36   PN639-643

 37   PN596

 38   Exhibit 4 at [28]

 39   PN363

 40   PN661

 41   PN664

 42   Exhibit 3 at [3]

 43   PN362 & PN367

 44   Exhibit 3 at [6-7]

 45   PN746, PN604-5, & PN629-31

 46   Pinawin v Domingo[2012] FWAFB 1359 at [30]

 47   PN228

 48   PN430

 49   PN370

 50   PN371-3

 51   PN432-4

 52   PN431

 53   [2014] FWCFB 2593 at [50]

 54   PN432-434

 55   Ryman v Thrash at [38]

 56   Exhibit A1 at [26]

 57   PN69

 58   PN528

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