Ms Yolande Dubow v Aboriginal and Torres Strait Islander Legal Service (Qld) Ltd T/A ATSILS

[2013] FWC 9464

[2013] FWC 9464 [Note: An appeal pursuant to s.604 (C2013/7582) was lodged against this decision - refer to Full Bench decision dated 15 April 2014 [[2014] FWCFB 2518] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Ms Yolande Dubow
v
Aboriginal and Torres Strait Islander Legal Service (Qld) Ltd T/A ATSILS
(U2013/9152)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 5 DECEMBER 2013

Summary: whether dismissal harsh, unjust or unreasonable - lawyer - disregard for employer’s procedures and protocols - species of bad behaviour - no trust and confidence in Applicant to work to exercise good judgement on employer’s behalf.

[1] Ms Yolande Dubow (“the Applicant”) has made application under s.394 of the Fair Work Act 2009 (“the Act”) in relation to her dismissal as a legal officer with the Aboriginal and Torres Strait Islander Legal Service (Qld) Ltd (“the Respondent”) on 24 April 2013. The Applicant had been employed subject to a contract of employment which expired on 30 June 2014.

[2] The contract of employment provides a term (clause 17) that permits the Respondent to terminate the Applicant’s employment on four week’s notice or by paying the balance of the contract (whichever is the shorter). For reasons I will discuss below, the Respondent acted on this clause on 24 April 2012.

[3] This application in many ways is a peculiar application. A wide variety of materials were filed which also cover prior proceedings in the Federal Magistrates Court (as it was) in which the Applicant sought an interim injunction restraining the Respondent from taking any adverse action against her arising from a “show cause” process that was then afoot. That application, to which I will refer a little later, was dismissed. An application was also made to the Fair Work Ombudsman, prior to the dismissal, about various of the matters that had come between the parties in the period prior to the dismissal (and which formed the backdrop to the dismissal as it came to be).

[4] I add that the application was also subject to application by the Respondent that I dismiss the application in accordance with s.587 of the Act. I dismissed this application following hearing from the parties on the matter. I was not satisfied at that juncture that the Applicant’s case had no reasonable prospect of success, at least in relation to a finding as to whether the Applicant was harshly, unjustly or unreasonably terminated, or was otherwise vexatious etc. That is, I did not consider in the circumstances that the Applicant should lose her rights altogether. My reasons for that decision are retained in the transcript of these proceedings.

[5] I add further that I dealt with an earlier jurisdictional objection in my decision in [2013] FWC 6171. This matter went to the extent to which the Applicant could avail herself of her rights (as they might otherwise be in relation making an application under s.394 of the Act and to seek an appropriate remedy) because of her status as an undischarged bankrupt. This is a matter that has some play in the application under s.587 of the Act, referred to above.

Background

[6] It appears from the materials that the relationship between the Applicant and the Respondent was subject to some pressure (from late 2012 or early 2013). The Applicant became involved in a number of complaints and other actions which came to damage the employment relationship. It is fair to say that it was not the substantive issues themselves that were the cause of the dismissal, but rather the nature of the communications (and their implications) between the Applicant and Respondent’s Chief Executive Officer, Mr Shane Duffy, who was managing the various issues that the Applicant had agitated, that were front and centre. Interestingly (and I will say a little more about this later), this was the case despite the Applicant and Mr Duffy having never met one another in a personal or professional context previously while the Applicant was an employee of the Respondent.

[7] This critical communication between the Respondent and the Applicant in these respects was dated 8 March 2013, in which Mr Duffy, in a lengthy (25 page) letter, set out all of the Applicant’s concerns as raised and his replies to each of these. This letter sets out some core issues about which the Applicant and the Respondent fell into continuing dispute (in a manner), but I do point out in passing that there were other issues as well that dogged the workplace, and that principally concerned the relationship between the Applicant and her Regional Office Manager, Ms Sarah Laikind, which intermittently arises in the considerable volume of materials tended in these proceedings. That relationship (as it was) is touched on below in respect of an issue concerning the preparation of a statutory declaration by a client of the Respondent, though it is also incidental to the data reporting issue discussed below.

[8] One of the core issues that arose was a conflict in relation to how a data request had been dealt with in the Respondent’s Harvey Bay office. The Applicant had described (in an email dated 19 February 2013 to Mr Shane Duffy, to whom in the email she had referred to as “Shame”) the Respondent’s conduct in this respect as being “duplicitous”, and had raised the matter with a senior officer of the Attorney General’s Department, with whom she had a social relationship. The Applicant said in her email of 19 February 2013 that she so informed this senior officer for the following reason:

I bring this to your attention now, purely to ensure that any additional funding is not wasted unnecessarily on areas where it is not needed.

[9] When the Applicant’s claims about statistics were subject to what appears to be a preliminary investigation, and she was given an opportunity to provide further comment, the Applicant appears to have had little interest in pursuing the matter:

I do not need a response in relation to my concerns to Shane or this particular right of further reply e-mail.

[10] There is no doubt that Mr Duffy took a particularly dim view of the manner of the communication directed to him, the accusation and the Applicant’s approach. Mr Duffy pointed out in his reply that the matter of the representation of data had been investigated and did not show any “duplicitous” conduct but had a particular cause and origin. It had also been the subject in part of an earlier email (14 September 2012) from a representative of the Respondent which discussed aspects of the appropriate ways to capture workload. At least, Mr Duffy thought, the Applicant should not, as a lawyer, have jumped to make such claims without the benefit of an internal investigation.

[11] Mr Duffy was also concerned that the Applicant may have been making “thinly veiled threats” by referring to meetings with a senior officer of the Attorney General’s Department. Mr Duffy suggested he might be reading too much into the Applicant’s words, though he noted that the Applicant’s explanation for her action was unhelpful (if for reason that it was incomprehensible):

The statistics issue wrapped up with the funding gave me a cause for concern and my civic responsibility is a serious thing. And my integrity at that level is also important. I note the board is to meet this weekend, and approval for expenditure being presumably one of their concerns, mentioned the two in that context.

[12] An issue had also arisen whereby the Applicant had assisted a client with the preparation of a complaint against the Regional Office Manager.

[13] The Applicant also appears to have had difficulties in her interactions with a particular HR Manager, Ms Jane Oliver, which arose from a medical condition relating to an elbow complaint she experienced. This complaint gave cause for the Respondent to investigate the Applicant’s fitness for work. It appears in the course of this particular matter, about which there was quite some interaction, that the HR Manager, and perhaps (at its highest) with a somewhat sceptical tone, indicated to the Applicant in an e-mail of 11 February 2013 that she had been surprised to see the Applicant at the Harvey Bay office when she had previously indicated she was not able to drive (and therefore could not complete her outreach services). The Applicant appears to have come to the view that she was being harassed by the HR Manager.

[14] This allegation was investigated by the Respondent (though not in a manner that directly involved the Applicant). It was found to be baseless. Quite a deal of the correspondence between the parties in regard to this issue is included in the correspondence of 8 March 2013. Clearly, the Applicant had come to see the process of assessing an employee’s fitness for work as harassment in its own right, because of its detailed nature and the persistence of various requests and clarifications etc. This matter became the subject of a complaint, and became embroiled (because it related to the Applicant’s ability to drive a motor vehicle) in an incidental concern on the Applicant’s part that she was not contractually obligated to provide services in the Harvey Bay region (though she was contracted to provide outreach services as such). And in this respect there was a further allegation that the Director of Civil Law for the Respondent had acted unilaterally to alter the Applicant’s employment contract.

[15] In short, the harassment claim which arose from the Applicant’s injury to her elbow became entwined with a dispute about her contractual obligations in respect of travel (and how this related to the delivery of outreach services).

[16] There are other issues that clouded the employment relationship as well.

[17] Mr Duffy came to view the Applicant’s conduct generally and specifically as being unsatisfactory, particularly from an individual who was employed to provide professional legal services.

[18] Consequently, Mr Duffy instigated a show cause process in which he provided the Applicant with 10 days to show cause as to why formal disciplinary action was unwarranted in the context of the above behaviours. Expressly, Mr Duffy sought a response from the Applicant which would serve in mitigation of the need to apply any disciplinary action.

[19] I note in passing that the tone of Mr Duffy’s correspondence of 8 March 2013 to the Applicant is measured, and the correspondence is particularly detailed. The Applicant could not have been left in any doubt that the issues that had come between her and the Respondent needed to be dealt with.

[20] The matter is further complicated by the fact that the Applicant, on the day prior to Mr Duffy’s very lengthy letter having been dispatched to her, had contacted the Fair Work Ombudsman in relation to concerns about harassment, in particular.

[21] The Applicant replied to the letter of 8 March 2013 on 9 March 2013.

[22] The Applicant’s e-mail read in part as follows:

Whether a response of threatened disciplinary action is appropriate to the raising of concerns is a matter of corporate governance, is a matter for others, but I answer the particular matters raised by you in addressing my concerns as follows.

I am next due to attend at Harvey Bay with several clients scheduled on 20 March 2013. If I should cancel these appointments I'd rather let those people know sooner rather than later.

On the basis of the findings you have made in your formal response, I would see no reason why you should not proceed to formal disciplinary action.

However, one would think the Fair Work Ombudsman in the midst of their enquiries relating to general protections, may consider such to be victimisation:

I am well aware of my obligations as a solicitor and a member of the ATSLS Corporation and indeed the wiser community. (sic)

[23] The Applicant’s response to the show cause letter of 8 March 2013 is entirely inadequate given the efforts Mr Duffy had gone to to articulate the various concerns which were frustrating the employment relationship.

[24] Mr Duffy replied (on 15 March 2013) that he had no knowledge of the date on which the Applicant had approached the Fair Work Ombudsman or the circumstances of any such approach.

[25] In the end, Mr Duffy subsequently applied two formal warnings to the Applicant.

[26] The first warning concerned the data allegations referred to above. While Mr Duffy applied a warning in respect of this conduct he qualified his view of the Applicant’s conduct by describing it as being “genuinely held albeit poorly expressed”.

[27] Mr Duffy did also apply a formal warning regarding the conduct of the Applicant in making what he described as baseless allegations about the HR Manager.

[28] In respect of some of the other matters raised in the correspondence of 8 March 2013, Mr Duffy applied lower-level cautions of an informal kind.

[29] In concluding, Mr Duffy stated that:

[...] I want to be very clear: if there are any future substantiated allegations of misconduct of such a nature - I would find it very difficult to conclude anything other than the termination of your employment contract was warranted. Should such an eventuality arise I will rely upon clause17.1 of your employment contract [...] and simply provide you with one months notice. [...] If you have been left in any doubt in terms of what I consider acceptable or unacceptable future conduct in your part - then please let me know. [...] I also take this opportunity to advise you that in the event that you conclude that my disciplinary outcome [...] is too severe - then under our Discipline Policy you are entitled to appeal my decision, in writing, within two business days. Any appeal request aside, such concludes this disciplinary process.

[30] On 17 March 2013, the Applicant responded to the correspondence of 15 March 2013 from Mr Duffy (as discussed immediately above).

[31] The Applicant disputed various of Mr Duffy’s findings and his reasoning. She claimed not to be contractually bound by the Respondent’s code of conduct, and generally contended that:

I stand by my complaints of unprofessional, corrupt and negligent conduct by Ms Laikind [the Harvey Bay regional manager] (who has a criminal conviction for cannabis) and harassment and by Ms Human Resources Manager, who has been corrected on at least three occasions relating to policy. (sic)

[32] The Applicant returned to her discussion with the senior officer from the Attorney General’s Department and commented that:

[...] My discussion [...] could only be constituted as a threat by you if you were afraid that something negative may be revealed, and according did you, the few discrepancies (over 160 matters) is explained by a simple misunderstanding by Ms Laikind? (sic)

[33] The Applicant went on to say that:

My fierce dedication to civil justice will translate into a protection of my having done the right thing in regards to my complaints, and concerns substantiated by figures, facts and statutory declarations: your response to threaten me with Disciplinary action is unjustified.

My offer to sever the part of my contract relating to dealing with the conduct of Ms Laikind, is in accord with the contract of employment and also a reasonable conciliation position

My understanding of my contract of employment given the provision of no-fault termination on your part would deny any other disciplinary action on your part. I am not a football player to be given a yellow card, red card or time in the sin bin. Further, with the exception of the contract of employment clause I do not know of any other agreement to penalty that is appropriate, as a lawyer of 30 years standing.

[34] The Applicant also raised other matters in respect of which she challenged the Respondent.

[35] I note in passing that the Applicant’s contract of employment states at clause 17.3 that the Respondent “may terminate your employment at any time without notice or payment in lieu of notice in the case of serious misconduct.” The contract of employment includes in the definition of matters that are included within the concept of serious misconduct “failure to follow the employer’s policies or other lawful direction”.

[36] There was further correspondence on 18 March from the Applicant to Mr Duffy. In that correspondence the tension between the parties increased:

I now appeal your decision in total:

I am not a football player: please explain the differences between formal warnings, and informal caution.

Please explain the actual relevance they have to me as a disciplinary outcome.

[...]

Further, as part of the issue with [...] my prior relationship with [the senior officer from the Attorney General’s Department] I will continue to talk to him and engage in my communications with him as I see fit. If you are threatened by such, it can only be concluded that you would have a reason to feel insecure.

[37] The Applicant also returned to an earlier issue for which she had received (and seemingly accepted but now claimed to have intentionally only “excepted”) an apology from Ms Laikind for some unkind remarks about her (the Applicant’s) competency:

That Ms Laikind is in my view incompetent and falling below the standard of a competent legal practitioner is an allegation made to you by me on facts and a statutory declaration by a third party.

[38] Clearly, the Applicant did little to help her own cause over the course of this process. Regardless of the particular rights and wrongs and the substantive merits one way or the other, Mr Duffy (whom the Applicant had never met whilst in the employment of the Respondent) did attempt to engage the Applicant in a constructive process for the purpose of managing the issues that had arisen in the employment relationship.

[39] The Applicant did not engage in this process when the opportunity was provided to her. And then when the process continued as the Applicant’s conduct caused it to do, the Applicant voiced her objection and concerns about Mr Duffy’s decision-making and her exposure to any disciplinary process.

[40] This was conduct that would inevitably cause even greater stress in the employment relationship.

[41] Mr Duffy replied to the Applicant’s correspondence of 17 March 2013 on 19 March 2013. In that correspondence Mr Duffy noted in conclusion that:

I close by once again cautioning you to be more discerning in your communications and conduct. Various inflammatory comments made by you in your most recent e-mail might suggest to some that you are doing your best to encourage me to terminate your employment contract. I have shown considerable restraint thus far and I believe, have dealt with you very leniently.

[42] Mr Duffy subsequently further corresponded with the Applicant indicating that he would “certainly not tolerate any further disrespectful conduct on [the Applicant’s] part. I can be no clearer.”

[43] The Applicant was afforded an opportunity to show cause as to why the formal disciplinary action taken against her was not warranted. As part of that process the Applicant had corresponded with the Respondent on 28 March 2013. In that correspondence the Applicant challenged an array of matters in relation to whether her contractual arrangements contemplated any disciplinary action; that she was not bound by the “disciplinary governance” applied by the Respondent “and even if I was, there is no provision for a charge, determination or allegation of “insubordination”.”

[44] The Applicant went on to say that:

In any event, I do not agree and cavil with any suggestion that I am subordinate to you! [Mr Duffy] My role as a legal practitioner is completely different to yours as a chief executive officer of a publicly funded social justice agency: I have thirty years of experience as a legal practitioner, an unrestricted practising certificate, admission on three states and three different degrees in three different areas: I also have no criminal record, and do not drink smoke or use any illicit substances: Your insecurity in that regard is noted!

[45] The Applicant further remarked that:

I am subordinate to my dead mother and my Chocolate Boy Burmese Cat. As you are neither of these, I remain sufficiently defiant to engage in lawful and requisite disclosure: [...].

[...]

No social justice agency would use the term “insubordination” in relation to a lawyer fulfilling their social duty.

[46] The Applicant also challenged the competency of the potential delegates for the show cause review and questioned their independence:

As this has become farcical I take the Pirates of Penzance position on your show cause request!

[47] It appears that Mr Duffy could take no more. 1

[48] Mr Duffy instigated an internal show cause investigation regarding an allegation of insubordinate conduct on the part of the Applicant. That report recommended the dismissal of the Applicant.

[49] On 15 April 2013 the Applicant was informed that she had two days in which to show cause as to why her employment should not be terminated for reason of insubordinate conduct.

[50] It appears that the only time Mr Duffy and the Applicant spoke personally was on 16 April 2013, when Mr Duffy telephoned the Applicant. In her affidavit to the Court, the Applicant stated that the conversation with Mr Duffy was “cordial” and that he indicated that he had not as yet dismissed her, and that he was prepared to ensure that she had a full two days (until 21 April 2013) in which to respond to the show cause letter he had directed to her. The Applicant claimed that she stated to Mr Duffy (in effect) as follows:

What do you want me to say that will allow me to go back to work and continue acting for my clients. I have done nothing wrong.

[51] At this late point, the Applicant had no insight into her own behaviour or how it was affecting others, let alone the employment relationship.

[52] The Applicant claimed in her affidavit, further, that that she believed her dismissal was a matter of formality and that Mr Duffy would act under the termination provisions of her contract of employment.

[53] The Applicant subsequently responded to the show cause letter. Her employment was terminated on 24 April 2013.

[54] Prior to the dismissal, the Applicant filed an application with the Commission under s.372 of the Act. A conference was conducted before the Commission on 4 April 2013. That matter dealt with the circumstances around the warnings referred to above. It appears that matter was adjourned indefinitely.

[55] The Applicant also made an application under the general protections provisions to the Magistrates Court, as referred to earlier, seeking an interim injunction. That matter was heard on 24 April 2013, it appears (after being filed on 8 April 2013), and was dismissed. The application to the court did not deal with the dismissal of the Applicant (which also occurred on 24 April 2013).

[56] In the judgement of the court, Burnett J stated as follows in respect of the matters as they were agitated before him:

[...] Here it is apparent from the tenor of the correspondence between the applicant and the respondent that the relationship of respect and subordination which is essential in any large enterprise or organisation has simply evaporated. The applicant plainly has very little if any respect for management and management understandably has a genuine basis for its concern as to the applicant’s suitability for her employment given that she is employed as a lawyer who, in part, would be involved in the provision of legal advice.

While it is noted that there are no complaints about the applicant’s performance of her legal duties, the fact remains that a significant responsibility is reposed in her and it is obviously incumbent upon the respondent to have confidence in her capacity to perform her duties and properly exercise th judgement associated with the performance of those duties. No doubt the circumstances of this case would give reasonable grounds for apprehension about the applicant’s general judgement. [...] 2

Legislative provisions

[57] The relevant legislative provisions arise under s.387 of the Act, which reads as follows:

387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

(h) any other matters that the FWC considers relevant.

Considerations

(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)

[58] I share the views of the Burnett J about the tenor of the interactions between the Applicant and the Respondent. This was a matter that at its embryonic stages was capable of being managed as a relatively low level disciplinary exercise which had no express bearing on dismissal. That is, the initial warnings were of a relatively low-grade form and were not given to place the Applicant in an irretrievable position, either from an employment security perspective or from a personal perspective. But the Applicant elected a different course. As I observed above, even late in the day when the Applicant faced dismissal, she showed no remorse and exhibited no insight into her own conduct.

[59] It is not expected in the contemporary workplace that employees will suborn (in the pejorative sense) themselves to their employer. Indeed, the regulatory system ensures that this will not be the case. But the employment relationship does require a reasonable modicum of respect, civility and cooperation. The Applicant’s conduct profoundly undermined these requirements. The Applicant would not engage cooperatively in the investigation and resolution of disciplinary processes and treated them and those involved in them with distain, effectively. The Applicant made a mockery of the very processes that were designed to provide her with opportunities for engagement with her employer. It is little wonder that the tension in the correspondence escalated, outside of a proper framework of cooperation, to such a point whereby the employment relationship was rendered unsustainable.

[60] At no stage did the Applicant ever consider any aspect of her behaviour as warranting correction or requiring modification or adjustment. She believed herself to be acting out of a social justice perspective. She was just plainly badly behaved.

[61] But not all bad behaviour in the workplace warrants dismissal. There are many species of behaviour. Some may involve anger and aggression and will attack the trust and confidence which underpin the employment relationship for that reason. Here, the species of behaviour is different. The Applicant was not violent, nor did she use language aggressively or abusively. But her conduct, albeit by other means, was no less corrosive of the relationship of trust and confidence.

[62] The Applicant contends, I think, that she is perhaps prolix and evocative in the use of language, and did not intend to portray herself as others have interpreted her to be. Or that some of her perceived derisive comments were intended to have narrow focus and not to be taken more broadly. But if this were so, the Applicant has very poor judgement indeed. This is because Mr Duffy repeatedly warned the Applicant about the tenor and style of her communications and the damage this was doing to the employment relationship, but the Applicant was unresponsive to such warning.

[63] The Applicant acted persistently to undermine and ridicule the Respondent’s processes and procedures and exhibited no respect for management, despite warnings.

[64] Reasonably, the Respondent had lost all trust and confidence in its employee to work cooperatively and diligently in its service, and to exercise good judgement on its behalf, particularly given her responsibilities as a legal officer.

[65] Thus, the Respondent, as a result, had a valid reason for the dismissal.

(b) whether the person was notified of that reason

[66] The Applicant was a participant in an elongated show cause process which amply set out the reasons that were in her employer’s mind that made ultimately for her dismissal. In the end, the Applicant was given two days (as of 15 April 2013) in which to respond to the report of 12 April 2013 (which she may have received on or about that time) which recommended her dismissal. The Applicant was notified of the reasons for the dismissal as set out in the report of 12 April 2013.

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

[67] The Applicant had an opportunity to respond to the reasons as notified in the report of 12 April 2013. Mr Duffy telephoned the Applicant and brought his correspondence to the Applicant’s attention and afforded her additional time to address the final show cause letter.

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

[68] The evidence gives no support to any claim that the Applicant was denied an opportunity to have a support person present to assist in any dismissal discussions. Somewhat oddly, apart from one conversation by telephone (instigated by Mr Duffy) the entire matter was conducted at long range as it were, by correspondence, and there were no face to face meetings. Such is probably the way when lawyers fall into conflict, and neither party agitated for a different pathway at any point. Though I do note the parties were separated geographically. I say a little more about these matters below.

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

[69] The reasons for the dismissal did not arise from unsatisfactory performance.

(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

[70] The size of the Respondent’s enterprise was not a factor relevant to the manner in which the dismissal was effected.

(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

[71] The availability of dedicated human resource management specialists or expertise in the Respondent’s enterprise was not a factor relevant to the manner in which the dismissal was effected, in so far as neither party raised the matter. There was an HR Manager, but she was drawn somewhat into the contest in her own right by events.

(h) any other matters that the FWC considers relevant.

[72] The Applicant would have me believe that she was treated in a different manner than others who had transgressed policy or behavioural boundaries with the Respondent. But the circumstances of the Applicant’s interactions with her employer reflect the Applicant’s unique demeanour. The Applicant’s circumstances are not comparable to any other of the Respondent’s employees’ circumstances as a consequence. The Applicant’s circumstances concerned idiosyncratic interactions in response to the disciplinary processes and injury management procedures with which she was confronted.

[73] There is little likelihood whatsoever of any other employee being subject to a differential disciplinary outcome in anywhere near even approximating the same context, or in any context that provides any comparability, or meaningful point of comparison with those of the Applicant. Further, there was, of course, no other employee with any common or overlapping responsibility for the relevant communications (that led to the dismissal) who was treated differently that the Applicant herself.

[74] The Applicant was also of the view that the HR Manager has maintained an interest in her following her dismissal, through social media. This may be the case. But without more I find it difficult to draw an adverse inference from such a circumstance, let alone one that has material bearing on the case at hand.

[75] In the Applicant’s affidavit (dated 4 April 2013) material to the Court (which was directed to chambers) I have noted that she made reference to her medical conditions as they appear to have manifested from March 2013. Such matters may have bearing on the Applicant’s judgment, if matters of evidence. But that was not her submission. Elsewhere in her affidavit, in any event, I note the Applicant refers to herself as having “no difficulty making decisions”.

[76] One of the curiosities in this matter, as I have touched on above, is that there was no strong agitation for a personal, or face-to-face meeting, over the course of the interactions (and only one personal telephone communication instigated by Mr Duffy). There may have been reasons for this (as I suggested earlier). It might be the case that if the parties had acted less as lawyers exchanging correspondence and met in a personalised environment the course of the matter might have taken a different course. But that is speculation on my part: it may have had the opposite effect, for all I know at an evidentiary level.

[77] Issues did arise over the course of the proceeding that the Respondent had not at all times acted in conformity with its prescribed procedures and policies. Be that as it may, I cannot conclude that the Applicant was denied procedural fairness at any point, or was treated harshly in the dismissal as a consequence. The matter in all was characterised by a high degree of particularisation of the issues in contest, with each side giving responses and counter responses, and more. I have set some of this out above (but not all).

[78] I add finally that the dismissal has impacted upon the Applicant, particularly in terms of her place of abode. She appears to have been transient since the dismissal.

Conclusion

[79] I am not persuaded that there are any procedural or other issues in mitigation that cause me to put aside the substantive finding. That finding was that the Respondent had lost “trust and confidence in [the Applicant] to work cooperatively and diligently in its service, and to exercise good judgement on its behalf [...]”.

[80] For the reasons I have given, the Applicant was not harshly, unjustly or unreasonably dismissed. Her application under s.394 is dismissed as a consequence.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms Y. Dubow, Applicant

Mr J. Dwyer of Counsel, instructed by Barry Nilsson Lawyers, for the Respondent

Hearing details:

Brisbane

2013

28 November

 1   Transcript of proceedings dated 28 November at PN879.

 2   Dubow v Aboriginal and Torres Strait Islander Legal Service [2013] FCCA 1357 at 45-46.

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