Raylene Oui v Townsville Aboriginal & Torres Strait Islander Corporation Health Services
[2012] FWA 2713
•31 AUGUST 2012
Note: An appeal pursuant to s.604 (C2012/5391) was lodged against this decision - refer to Full Bench decision dated 19 February 2013 [[2013] FWCFB 283] for result of appeal.
[2012] FWA 2713
The attached document replaces the document previously issued with the above code on 31 August 2012.
The document has been amended to correct a number of references to ‘Karen Anderson’ which have been corrected to name ‘Kathy Anderson’.
Jenny Hannay
Associate to Commissioner Simpson
Dated 4 September 2012.
[2012] FWA 2713 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Raylene Oui
v
Townsville Aboriginal & Torres Strait Islander Corporation Health Services
(U2011/13631)
COMMISSIONER SIMPSON | BRISBANE, 31 AUGUST 2012 |
Termination of employment –Summary Dismissal-Insufficient evidence to support conclusions of investigation - Lack of procedural fairness - Compensation Awarded-Reduction in compensation.
[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Ms Raylene Violet Oui (“the Applicant”) who alleges that the termination of her employment by Townsville Aboriginal & Islander Health Service Limited, now known as the Townsville Aboriginal and Torres Strait Islander Corporation for Health Services, (“the Respondent”) on 18 November 2011 was unfair in accordance with the definition contained within s 385 of the Act.
[2] The application was filed on the 23 November 2011 and a conciliation conference was conducted on 14 December 2011 which was not successful in resolving the matter.
[3] Following a directions conference with the parties the matter was listed for hearing in Townsville for three days. The Applicant was represented by Mr O’Donnell, Hinds Lawyers and the Respondent was represented by Ms Perigo of Counsel assisted by Ms Doyle of Williamson Legal. Following the hearing dates the Applicant filed closing submissions on 19 June, the Respondent on 26 June and the Applicant’s reply submissions on 3 July 2012.
BACKGROUND
[4] The Applicant commenced employment with the Respondent in 24 April 2006. The Applicant was employed at the time of her termination as a Program Coordinator with the Early Intervention Program (EIP). The EIP provides early intervention services for Aboriginal and Torres Strait Islander families. The EIP is funded by the Commonwealth Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA).
[5] On 17 October 2011 Kathy Anderson, the Interim Chief Executive Officer of the Respondent received a complaint from Ms Karen Mann, 1 an employee under Raylene Oui’s direct supervision in the EIP. On 18 October 2011 Raylene Oui was given a letter dated 17 October 2011 signed by Kathy Anderson concerning the alleged breaches of the Respondents code of conduct, and allegations of workplace bullying and harassment against the Applicant.
[6] On 27 October 2011 Raylene Oui attended a meeting with Kathy Anderson and Kath Hughes the Human Resources Officer. 2 3 Also attending was by Raylene Oui’s support person Mr Denis Leo. She was advised at this meeting there would be an investigation into the allegations.
[7] On 11 November 2011 Raylene Oui was interviewed by the investigator appointed by the Respondent Tracey Richards. 4 5 An Investigation report was prepared by Tracey Richards and provided to Kathy Anderson.6 7 It concluded as follows;
“Outcome of Investigation
After consideration of the evidence and findings it is the investigator’s assessment that Ms Mann over the past 2 years and more recently in the past 6 months has been bullied and harassed within the workplace by Mrs Oui. Therefore, Mrs Oui’s bullying and harassing behaviour towards Ms Mann is in direct breach of the TAIHS Code of Conduct.”
[8] Further under the heading recommendation the investigation report says as follows;
“Recommendations
1. Immediate termination of Mrs Oui’s employment with Townsville Aboriginal and Islander Health Services (TAIHS).”
[9] On 18 November 2011 the Applicant was hand delivered a letter of termination by Kathy Anderson and Kath Hughes 8 advising the Independent Investigation had made four findings against her and on the basis of those findings concluded that she had behaved in aggressive, threatening and bullying manner toward a subordinate staff member and committed serious breaches of the TAIHS Code of Conduct. The letter further advised the findings constituted gross misconduct and therefore in accordance with the TAIHS disciplinary policy, her employment with TAIHS is terminated, effective immediately.
CONSIDERATION
[10] The allegations initially made in a letter of complaint by Karen Mann were summarised in the letter of 17 October 2012 from Kathy Anderson to Raylene Oui headed “Allegations of breaches of TAIHS code of conduct, workplace bullying & harassment - Serious and Willful Misconduct”. The letter did not set out the parts of the TAIHS code of conduct, TAIHS Disciplinary Policy or Sexual Harassment, Discrimination and Workplace Bullying Policy that the allegations indicated may have been breached, or why the words “Serious or Willful Misconduct” appeared in the heading in the correspondence. The Fair Work Act 2009 defines serious misconduct in section 12 and in the regulations which I deal with later.
[11] Raylene Oui during cross examination was taken to the following parts of the Code of Conduct. 9 10 ‘Principles,’ which included requirements to be fair and equitable in dealings with clients, other employees and visitors of TAIHS; and to maintain safe work practices and a concern for the welfare of other employees. Clause 5.2.2 concerning ‘The Role of Employees’ which included; 11 Behave honestly and with integrity; Act with care and diligence; Treat everyone with respect and courtesy, and without harassment; Use resources in a proper manner. Clause 5.10 ‘Dealing with Aggressive Behavior” where it says, 12“..the organization does not accept any form of aggressive, threatening or abusive behaviour towards its employees by clients, visitors, Board of Directors or community members..”. Clause 5.12 ‘Breaches of the Code of Conduct’ where it says; “Breaches of this Code may be grounds for using Disciplinary Procedures, as outlined in the TAIHS Disciplinary Process.”
[12] The Applicant was also referred to clause 6.1 of the ‘Sexual Harassment, Discrimination and Workplace Bullying Policy’ 13 which reads as follows at clause 6.1 ‘Defining Workplace Harassment/Bullying’. Workplace bullying can be defined as the repeated less favourable treatment of a person which may be considered as unreasonable and or inappropriate workplace practice. It includes behaviour that intimidates, offends degrades or humiliates a staff member possibly in front of another employee or client. Examples of bullying and harassment are listed in the policy.
[13] The Applicant was also referred to clause 7 ‘Responsibility of Program Co-ordinators’ which includes the following; “..Program Co-ordinators have a responsibility to: Monitor the working environment to ensure that acceptable standards of behaviour are observed at all times; Model appropriate behaviour themselves.
[14] Ms Oui accepted she was in a managerial position with responsibility for four employees and that this role carries additional responsibilities. 14
Allegations In Letter Of 17 October
[15] An email from Kath Hughes as the Senior Human Resources Manager to Kathy Anderson dated 12 October indicates that at a meeting on the afternoon of 12 October Karen Mann had indicated to Kath Hughes she;
• “..wants to wait until the end of the week to see if the issues can be resolved.
• If the issues continue Karen wishes to proceed with the grievance - she will do this Monday if she feels she needs to.” 15
[16] This email indicates the week before the formal grievance was submitted Karen Mann still believed the matter could be resolved on some other basis than her making a formal grievance. Based on the email this discussion between Karen Mann and Kath Hughes happened after Raylene Oui had returned from a period of leave and asked Karen Mann for a report for the time she had been co-ordinator of the EIP that Karen Mann provided at 10am that day. 16 There was no other specific incident referred to in the evidence of Karen Mann or anyone else after 12 October 2011 that would appear to have been the tipping point for Karen Mann deciding to lodge the formal grievance.
[17] Raylene Oui agreed she was told at the meeting of 27 October the investigation was to be carried out by someone who was not an employee of the organization. 17 She said she was “shocked by it because in a process, we have a process of one-on-one - there’s a policy. If you’ve got a problem with that person or whatever, you go approach it and go through the line channel. I was quite taken aback how it went straight to the head and not come from down here and worked out in the process - that task as a process.” 18 She agreed that Kathy Anderson had said in the meeting the allegations were serious.19 She agreed mediation was mentioned as a possible outcome of a process.20
[18] Raylene Oui sent an email to Kathy Anderson on the morning of 31 October 2011 stating “I will be declining the mediation advised by my lawyer”,to which Kathy Anderson replied “There has been no mediation proposed at this stage. The first step is the investigation. This is the step that we have proposed outsourcing. You will be advised who is doing the investigation, and asked whether you have any objection to this person. This step is mandatory - as a company, we have to do this.” Mrs Oui replied “I will cooperate fully with any investigation into these matters. However, I believe that you should provide, in writing, all allegations made against myself prior to the investigation proceeding.” 21
[19] Mrs Oui was sent a letter another letter by Kathy Anderson on 4 November 2011 advising Tracey Richards had been nominated as the Independent Investigator. 22 A meeting was subsequently held between the Applicant and Tracey Richards on 11 November 2011 as part of the investigation.23
[20] Raylene Oui appears to have been confused by the process because she indicated she declined ‘mediation’ on the basis of legal advice, but at the same time seemed to also complain it “…went straight to the head and not come from down here and worked out in the process…”. I am satisfied on the evidence mediation was never proposed or offered by the Respondent.
Allegation 1
[21] This allegation falls within the ambit of first finding in the termination letter.
“..1. It is alleged that you have verbally abused an employee via the telephone stating “Where the hell are you it is now 12.30 and you have not come back to the office”. When the employee attempted to advise you that they were with a client and identified their location you then allegedly stated “Well, look I do not care really, you have not stepped foot in this office today and I want you back here by 1pm. It is alleged that when the employee identified to you that this could not happen you then stated that the employee was to ring into you every half hour so that you knew what the employee was doing”.
[22] Karen Mann’s statement refers to this incident occurring on 6 September 2011; however it would appear she may have meant to say 6 September 2010 as Ryan McDonald left the Respondents employment in March 2011. 24 On that basis the incident occurred over 13 months before it was first raised on 17 October 2011. Karen Mann said in her statement Jennifer Lenoy who worked in an administrative role in the office witnessed the discussion however neither Jennifer Lenoy or Ryan McDonald were called to corroborate Karen Mann’s version of the exchange.
[23] Raylene Oui denied the version of the conversation as put in Karen Mann’s complaint 25 Raylene Oui’s statement says that on the day she was aware that Karen Mann and Ryan McDonald had been scheduled to meet a client at 8.30am but that it was policy for safety reasons that contact between workers and management be maintained at least two hourly 26 and that is why said asked Karen Mann how long she was going to be.27 Karen Mann said she believed Raylene Oui knew where they were but agreed that they hadn’t spoken since 8am that morning.28
[24] Kathy Anderson said she was not aware of the policy of two hourly contact referred to by Raylene Oui and her previous role included maintaining the policy register. She accepted it may have been a procedure but not across TAIHS 29 Kathy Anderson accepted Raylene Oui had a right to ask the employees where they were, but the issue was the way she spoke to Karen Mann and that her language was angry. Kathy Anderson said it wasn’t reasonable to scream at staff on the phone.30 At the same time Kathy Anderson said she did not have any knowledge about what was discussed between Tracey Richards and Raylene Oui as part of the investigation concerning this issue.31
[25] Karen Mann also accepted that it was not unreasonable for Raylene Oui to ask where she was but again it was the way Raylene Oui spoke to her that was unreasonable. 32
[26] It was put to Mrs Oui that she would have known the whereabouts of staff because processes were in place such as an In and Out board and a shared weekly planner. Raylene Oui said the employees did not fill out the in and out board and they did not submit their planner that week which they are required to do. She agreed that she knew they were going to use the work vehicle on 6 September and that every day they are out visiting clients. 33
[27] Raylene Oui initially denied asking Karen Mann to ring her every half hour 34which contradicted her witness statement where she said she did.35 Karen Mann’s statement said she did.36 Raylene Oui then agreed she had asked Karen to ring every half hour because she had not heard from them for five hours.37 Raylene Oui’s own statement in reply38 disagreed with the relevant part of Karen Mann’s statement. It was put to Raylene Oui on the basis of her oral evidence she no longer disagreed with this part of Karen Mann’s statement. Her oral evidence on this point was confused as she appeared to change her evidence again by returning to the position that she did not tell Karen Mann to report back every half hour.39
[28] Raylene Oui claimed numerous efforts were made to contact Karen Mann and Ryan McDonald on the work mobile phone that morning that were unsuccessful. 40 Karen Mann disputed this. Raylene Oui claimed she checked Karen Mann’s work mobile phone after they returned to the office and there were six missed calls from the office although this information was not in her witness statement.
[29] Kathy Anderson accepted that it is reasonable for a manager to want to know where her staff are and it could be a health and safety issue. 41 The evidence indicates Karen Mann had been out of the office for approximately 4 and a half hours, being from 8am to 12.30pm when she spoke to Raylene Oui.42
[30] On the basis that no other witnesses were called to corroborate the version Karen Mann gave, and the allegation was not raised until over thirteen months after the incident seems to have occurred, I am unable to be satisfied on balance that the alleged conduct occurred in a manner which would constitute a breach of the Sexual Harassment, Discrimination, Workplace Harassment/Bullying Prevention Policy (Bullying Policy) as claimed. I note that Kathy Anderson said in her evidence “it’s not reasonable to scream on the phone”, 43 however Karen Mann never used that expression in her evidence.
[31] In any event even if I was satisfied the conduct as alleged did occur I am not satisfied it would of itself justify dismissal. I particularly note clause 12 of the Respondents Bullying Policythat includes a range of options available short of dismissal concerning matters going to harassment and bullying. I will return to this point later.
Allegation 2
[32] This allegation also falls within the ambit of the first finding in the termination letter.
“..2. On another occasion it is alleged that you were discussing client contacts with the employee and you allegedly stated that there was no need for the employee to be performing client visits and that the employee was to contact the clients by phone.
Approximately two (2) weeks later at a staff meeting it is alleged that you stated to the staff member in front of the other staff attending the meeting that they were required to get out in the community and see clients as the staff member had not been doing this.
It is alleged that when the staff member attempted to reminded (sic) you that you had given a directive previously that you stopped the staff member and stated in an aggressive manner “I know what I said and this is how it’s going to be now, because I can change things whenever I want because I am the boss right!..”
[33] Karen Mann said in her statement Desley Barba, Jennifer Lenoy and Ryan McDonald were in attendance at the meeting two weeks after the initial instruction 44 however Desley Barba was the only one of these called give evidence.
[34] Raylene Oui said she did not recall directing Karen Mann not to make face to face appointments, 45but did however recall a staff meeting in April 2011. She denied saying to Karen Mann in front of the other staff that she hadn’t been out much and she needed to get out in the community more46and other comments attributed to her.47
[35] She did recall a conversation with Karen Mann regarding cutting back client visits but said the issue was in the context of having been instructed by the financial administrator Alan Eldridge to work together and start cutting back on costs. 48
[36] Raylene Oui claimed there was confusion as they were told one thing by Alan Eldridge and another thing by her line manager Angelina Akee who told her to get the team back on the road. 49 Kathy Anderson said Alan Eldridge discussed cost savings at management meetings but did not propose cutting back on client visits.50 51 It is plausible that Raylene Oui may have interpreted from the funds administrator these discussions may include for the purposes of client contacts trying to save expenses. This could explain the apparent contradictory instructions given by Raylene Oui to Karen Mann within a short time frame.
[37] Tanya Akee claims that she had sent an email to Alan Eldridge asking him to leave the day to day running of the Respondent to co-coordinators and management following complaints from staff. 52 This evidence also tends to support what Raylene Oui was saying. Tanya Akee’s evidence in this regard was not challenged.53
[38] Kathy Anderson said when asked about when the meeting occurred that the allegation arose from said she didn’t know the details. She said this was a matter for Tracey Richards to talk to Raylene Oui about. 54 She agreed with the proposition that two employees having a disagreement at work does not constitute abuse or harassment.55
[39] It was put to Karen Mann that these discussions did not occur in April 2011 as her statement said 56but were in May or June 2011. Karen Mann replied that she could not agree or disagree. As her grievance was lodged in October 2011, the alleged incident at the meeting would have occurred at least five months before it were first raised.57 No witness seemed to be able to be precise at the date of the meeting.
[40] In attempts to be clearer about the date of this meeting Karen Mann was questioned about when she started attendance at a training course she participated in at Ingham. Her initial response was May, however later agreed it was January 2011. 58 Her uncertainty with regard to the training course dates raised a concern in my mind about the clarity of her recollection of matters such as this one, raised by her over five months after it was alleged to have occurred.
[41] Karen Mann also accepted the explanation given by Raylene Oui that the reason she asked Karen Mann to do more client contacts over the phone could be a reasonable explanation but she was not aware of it. 59
[42] Desley Barba gave evidence of a general nature that at staff meetings, if Karen Mann was trying to talk about something or explain something; particularly about a client Raylene would often reject Karen’s recommendations in a way which she thought was intimidating. 60 Desley Barba was not challenged during cross examination on this evidence. However this evidence was of a general nature and was not specific evidence about this alleged incident.
[43] On the basis of a lack of precision around when the meeting was said to have occurred, the length of time between when the incident was said to have occurred and when it was first raised by Karen Mann, disputed versions between Mann and Oui, no specific supporting evidence regarding the allegation other than a general observation from Desley Barba, and a plausible explanation from Oui that she was getting conflicting instructions about client visits around that time, I am unable to be satisfied on balance that the evidence concerning this allegation demonstrates a breach of the Bullying Policy. Again, even if I was satisfied it was it was not conduct justifying dismissal when other measures were available under the Policy to address the issue.
Allegation 3
“..3. It is alleged that at staff meetings in front of staff members from the volatile substance misuse unit that you, on more than one occasion, verbally abused the employee at these meetings.”
This allegation did not seem to be pursued with any evidence in the conduct of the Hearing.
Allegation 4
This allegation also falls within first finding against Raylene Oui.
“..4. It is alleged at a staff meeting for EIP that you were discussing the intake on e-files for client records a process which the employee claims that she developed. When the employee advised you that they had implemented this and had applied this to their work already it is alleged that you stated in a smart tone “Maybe you did, and maybe you didn’t. I don’t recall you doing this so it didn’t happen OK!”
It is further alleged that when the employee replied to you stating “Yeah, well I did and you also don’t recall a lot of things that I propose or have done and said” that you stated in a sarcastic manner “Oh, well you deserve the EIP worker of the year award then don’t ya..”
[44] Karen Mann claimed to have approached Raylene Oui with the proposed new idea in or around February 2011. 61 Karen Mann claimed when she brought the proposal to Raylene Oui she “flicked the paper I presented onto her desk and turned away from me. She didn’t say anything.”62
[45] It should also be noted that around the time Karen Mann said she first raised the proposal (February 2011) was in the same month that Karen Mann also conceded that she had been away from the workplace for 9 days without prior approval and came very close to being terminated on the basis that the Respondent had concluded she had abandoned her employment. 63 This evidence places some context to a circumstance where her manager may not be as receptive to her proposals as she might otherwise have expected. Karen Mann agreed that it was around this time that she had a “bit of a falling out” with Raylene Oui. She also described it as a miscommunication.64
[46] The circumstances of the unapproved leave were that after Cyclone Yasi the staff of the Respondent had all been sent home on Thursday 3rd February 2011. Karen Mann drove to Rockhampton to be with her family at this time. There was a dispute in the evidence as to who contacted who first, however Karen Mann advised Raylene Oui that her car had broken down and she would not be at work that week to which Raylene Oui responded that this was “not good” but to be back at work on Monday (which would have been 14 February), meaning the following week. Karen Mann said she rang Raylene Oui the following week to advise that her car was still not fixed and according to her Raylene Oui said to make sure she was back on Wednesday (which would have been 16 February).
[47] Karen Mann then completed a time sheet and annual leave form and faxed them to the Respondent on Tuesday (15 February). On Wednesday (16 February) she said she rang Human Resources (not Raylene Oui) and said to Kath Hughes she thought she would be back at work on the Wednesday but only got the funds to fix the car that day and therefore would be back at work on Friday. She was advised by Kath Hughes she was lucky she rang as a termination letter was being prepared and to make sure she was back at work by Friday (18 February).
[48] It would appear to me Raylene Oui was quite restrained in the manner she dealt with this conduct of an employee under her direct supervision and it would be understandable that in the circumstances of Karen Mann’s conduct that Raylene Oui would hold the view Karen Mann was not an appropriate person to be a Team Leader at that time.
[49] Karen Mann’s said in her witness statement that “relationships and communication at work broke down” and “I felt that the EIP was at risk because I was letting the clients down and the outcomes that were needed were either being put on hold or not being achieved because I was too frightened and too anxious to go to work.” 65
[50] Karen Mann also said in her statement that she was drinking too much and it was affecting her home life. 66 It appears Karen Mann suggested she was too frightened and too anxious to go to work because of Raylene Oui, however it appears that her own conduct contributed to the breakdown in the “relationships at work” by failing to make arrangements to attend for work for nearly two weeks on the basis that her car broke down.
[51] Karen Mann said it was at a meeting in June where Raylene Oui started explaining a process similar to her proposal in February. According to Karen Mann’s evidence she said “I’m already doing this with my work. This is what I proposed before..” 67 The response of Raylene Oui even as described by Karen Mann herself68 is clearly defensive but that is not completely surprising in the context of a manager being directly challenged by one of their staff in front of a meeting. Further to that, the clear insinuation was that Raylene Oui had taken her idea and proposed it as her own. Whether true or not it would clearly have been embarrassing for Raylene Oui for this to have happened in front of all of her staff. On Karen Mann’s own account she then goes on to criticise her manager further in front of the staff saying that “Yeah, well I did and you also don’t recall a lot of things that I propose or have done and said” to which according to Karen Mann came the reply from Raylene Oui “Oh, well you deserve the EIP worker of the year award then don’t ya.”
[52] Raylene Oui denied Karen Mann approached her in February 2011 69 regarding a process for E-filing for client records, claimed she was not authorised to change paperwork and did not recall a meeting in June 2011 either.70
[53] Desley Barba recalled a staff meeting when there as a big argument between Karen and Raylene about client forms which were on 2020 (TAIHS’ electronic quality management system). Desley Barba said Karen Mann tried to talk to Raylene about Kathy Anderson’s request to review forms but like many other times after a while she would give up and later on some occasions Desley Barba would see her crying. 71
[54] Karen Mann felt Raylene Oui had been rude and there was no need to say what she said. 72 On Karen Mann’s version the challenges to Raylene Oui’s made in front of staff would also have been embarrassing for any manager and although her retaliation was unprofessional and inappropriate it needs to be seen in its proper context.
[55] Kathy Anderson accepted sarcasm of itself is not a dismissible offence. 73 Again even though Raylene Oui either rejects the allegation or says she does not recall it, even accepting Karen Mann’s version it is not a clear case of workplace bulling or harassment. It appear more a case of an employee publicly accusing their manager of taking their idea and the manager retaliating and becoming defensive in response.
[56] Kathy Anderson said that during a meeting on 27 October Raylene Oui claimed that the comment regarding the EIP worker of the year award was not sarcastic and that she genuinely wanted to give Karen Mann an award. Kathy Anderson felt this response was dishonest. 74 Raylene Oui said she had thought about the idea of awards for staff.75 The explanation from Raylene Oui seems unlikely but in the wider context of the case I don’t regard that as a significant issue affecting the outcome.
Allegation 5
This allegation became the second finding against Raylene Oui.
“..5. It is alleged that you have stated to the employee that the employee is not capable of performing the position of Team Leader or a higher position with the organisation and upon return from your annual leave you allegedly asked the employee “Were you the Coordinator were you?” and when the employee stated “yes” it is alleged that you requested a report from the employee but failed to request a report from the other employee who was performing the same duties at a different time during your leave..”
Not Capable of Team Leader
[57] Mrs Oui claimed discussion about the team leader role had taken place over years and Karen Mann had asked her during their lunch break if she was team leader material. 76 She agreed she had told Karen Mann she wouldn’t be suitable for a team manager’s position until she learnt good time management.77 She also said Karen Mann was always late78 and she had spoken to Karen Mann about coming to work late.
[58] Contrary to Raylene Oui’s evidence Karen Mann stated the matter of her being a team leader was only discussed once. 79 She denied Raylene Oui’s claim that she told her she was not suitable, maintaining the words used were “not fit” and “not competent” and further Karen Mann could not be “hard on people”. Karen Mann accepted that Raylene Oui had told her that her time keeping was not up to scratch, and she seemed to accept this as fair criticism.80 Raylene Oui accepted that she had said words to the effect “Good afternoon” if Karen Mann arrived at 8.10am but said it was only “joking around.”81 Karen Mann said the reason’s Raylene Oui gave her for believing she was not capable of being team leader were that she did not have initiative or the confidence to be hard on people, and that she lacked confidence in herself.82
[59] An issue arose about Karen Mann being denied a request to have a commencement time of 8.30am rather than 8.00am but as the evidence unfolded it became clear this was not a decision of Raylene Oui’s. 83
[60] Kathy Anderson agreed there would be nothing wrong with a manager telling an employee if the manager believed the employee was not capable, or up to performing a job. 84 She also accepted that a supervisor telling an employee that they were not suitable at the time for a position as a team leader did not constitute bullying and harassment. Kathy Anderson also accepted it was reasonable for Raylene Oui to have spoken to Karen Mann about her competency, attitude and lack of confidence. 85
[61] Desley Barba agreed that she wasn’t happy with Karen Mann’s attitude herself at times and that is why she spoke to Raylene Oui about it, to try and “sort stuff out.” She said she needed to listen to both sides of the story. 86 She also said that Karen Mann “didn’t always do the right thing”, and she had raised issues about Karen Mann with Raylene Oui herself.87 Desley Barba agreed that Raylene Oui used to say that Karen Mann was not suitable for Team Leader or a higher position until Karen ‘learned good time management’.
[62] The difficulty with Karen Mann taking issue with Raylene Oui’s comments about her performing the Team Leader role, although the specific language is disputed, is that her own evidence disclosed legitimate concerns regarding her time management skills. In the context it would appear Raylene Oui had some justification for expressing the views that she did and on that basis I am not satisfied Raylene Oui expressing that view to Karen Mann about her capacity to be Team Leader at the time was bullying or harassment.
Requirement for Written Report
[63] Raylene Oui said she did not know who acted in her role until she got back to the office. 88 She agreed she was on leave from 26 September 2011 to 10 October 201189 and returned to the office on 12 October. She agreed she knew by this stage Ms Barba acted in her role from 26 September to 4 October and Karen Mann from 5 October to 11 October.90
[64] Raylene Oui agreed she asked Karen Mann for a report when she returned but also claims she asked both acting co-ordinators. 91 She agreed Karen Mann complied with this request.92 Desley Barba said that she was never asked by Raylene Oui to provide a written report for the period 26 September to 4 October 2011.93 However she also said after she did her week as acting co-ordinator Karen Mann took over and she went on leave herself.94 If that is correct Desley Barba was on leave when Raylene Oui returned.
[65] As a basis for explaining why she hadn’t required written reports from Desley Barba on previous occasions, Raylene Oui explained when she had been on leave in the past Angelina Akee would oversee her role and Desley Barba assisted her but did not receive the pay of the role, unlike on this occasion when the co-ordinators were paid for acting in the role. She said Angelina Akee had give her a written report on previous occasions. 95
[66] Kathy Anderson accepted that she had a telephone conversation with Raylene Oui on 25 September 2011 where she asked Raylene Oui who would be the best person to act in her role while she was away and Raylene Oui answered Desley Barba. 96 Kathy Anderson said however it wasn’t until after this discussion that she became aware Desley Barba and Karen Mann both had some leave at different times that clashed with Raylene Oui’s leave. As the Department was looking at funding for the EIP someone needed to be in charge every day.97
[67] Karen Mann claimed that when Raylene Oui returned to work on 12 October she felt threatened and intimidated. She said she felt Raylene Oui did not acknowledge the work she had performed and on the morning of 12 October 2011 did not say good morning and was in a bad mood and later that morning asked for a report for the time she had been co-ordinator that Karen Mann provided at 10am that day. 98
[68] Karen Mann also said that after she returned from lunch that day she overheard a conversation Raylene Oui was having in her office and when she came out of her office she was angry and looked at Karen Mann in a rage and said she was going for lunch and probably not coming back that day. 99 Raylene Oui denied this conduct, but even had it occurred as Karen Mann claimed it is not clear that her anger was intended to be directed at Karen Mann.
[69] In the overall context, clearly Rayelene Oui would have been surprised when she returned to work on 12 October to discover that Karen Mann had acted in her role as that was not her recommendation that she thought had been adopted, and as set out above she held some misgivings about the suitability of Karen Mann for the role.
[70] In the whole context I do not believe her seeking a written report covering Karen Mann’s period as acting co-ordinator was so unusual. She should have treated Karen Mann and Desley Barba consistently on this issue; she claims she did but Desley Barba says she was not asked for a written report. Desley Barba was on leave when Raylene Oui asked Karen Mann for the report. Raylene Oui had a reasonable explanation for why Desley Barba had not provided reports previously as she was not acting in the role. Again I am not satisfied seeking the report from Karen Mann was a case of bullying or harassment. If Raylene Oui did behave as claimed by Karen Mann on 12 October when she came out of her office after a telephone call that was unprofessional and inappropriate but if I accept that evidence it does not indicate with any certainty her anger was directed at Karen Mann. It should also be remembered it was the first day she had returned to work after a period of grieving for a relative.
OTHER ISSUES
[71] Beyond the allegations initially made by Karen Mann other issues arose in the course of the investigation prior to the employer deciding to terminate.
3rd Finding - Borrowing Money
[72] This issue was not a matter raised in the grievance made by Karen Mann on 17 October against Raylene Oui, however it became the third finding in Tracey Richards investigation report and subsequently the third finding in the termination letter. The finding in the investigation report was as follows;
“3. Adequate evidence that Mrs Oui’s actions in borrowing relatively large amounts of money from staff within the EIP team outside and within work hours for personal use and not repaying these loans are unprofessional, inappropriate and a breach of the TAIHS Code of Conduct…”
[73] Karen Mann’s statement said on a number of occasions Raylene Oui had asked her for money or a loan. 100 Karen Mann claimed to have given Raylene Oui $20 or $150 or bought her cigarettes.
[74] Karen Mann claimed that on a Wednesday night Raylene Oui would ring her at home between 9pm and 12am and ask for a loan, Wednesday being pay day, and on occasion she asked her to deliver money to Raylene Oui at the RSL. She said after a while she didn’t answer the phone on a Wednesday night. 101 She said the distance to the RSL from her home was about 500 to 600 metres.102 Raylene Oui denied that she did not pay the amounts back to Karen Mann.103
[75] She denied regularly borrowing money from Karen Mann but agreed she had done so on a number of occasions. 104 Raylene Oui claimed the sums were in the order of $5 or $10.105 She also agreed that she had contacted Karen Mann by phone at home to talk about her giving her a loan106but denied contacting Karen Mann at home at night and asking for money or asking her to deliver her money at the RSL.107
[76] Karen Mann also claimed if she didn’t answer the phone on Wednesday night the next morning Raylene Oui would challenge her about why she didn’t answer the phone. She also claims Raylene Oui had not repaid all of the money. 108
[77] Raylene Oui said in her statement that during her interview with Tracey Richards she confirmed she had borrowed small sums of money from Karen Mann, just as she said Karen Mann had borrowed money from her. She said she was never asked if she still owed Karen Mann any money which she said she did not. She also said she had advised Tracey Richards she had purchased a second hand washing machine for Karen Mann that she paid $30 for and she and her husband had delivered it to Karen Mann’s home. 109 110
[78] In cross examination Kathy Anderson indicated her concern was not that Raylene Oui denied borrowing money (she didn’t) but that she believes that it was okay to borrow money, that there was a power imbalance between Karen Mann and Raylene Oui and that Raylene Oui rang Karen Mann at night to borrow money. 111
[79] Karen Mann was not challenged regarding the conversations she said Raylene Oui had with her regarding when she borrowed money. The difficulty is there is no evidence that Tracey Richards ever put the proposition to Raylene Oui that she contacted Karen Mann at night to borrow money as part of the investigation.
[80] Karen Mann agreed at one time Raylene Oui and her were good friends. 112Karen Mann said she couldn’t recall if she borrowed money from Raylene Oui herself, and then said if she did it would have only been probably $20.113 Karen Mann agreed that Raylene Oui had given her a washing machine.114
[81] Kathy Anderson again conceded that she did not know what Raylene Oui said to Tracey Richards in the interview but she knew that other staff said to her that Raylene Oui rang them up after hours and borrowed money. 115 Kathy Anderson did not identify any other staff and neither did the investigation report.
[82] The difficulty with drawing a clear conclusion on this issue is that the person who conducted the independent investigation did not give evidence and could not be cross examined as to how the findings were reached. The evidence is at one point Raylene Oui and Karen Mann had been ‘good friends’ and it would appear did borrow money from each other. Beside the competing claims of Raylene Oui and Karen Mann there is no other tangible evidence concerning the disputed facts about how much was borrowed, how often, who from - other than Karen Mann which is admitted, and a dispute over whether it was repaid or not.
[83] If the borrowing of money was for moderate sums in the course of a mutual friendship it would not ordinarily be an issue. If as claimed by Karen Mann she was pressured to loan money to Raylene Oui and to meet her at the RSL outside work hours to give her the money this is clearly a more serious issue. However Karen Mann gave no clear evidence about when this was said to have occurred. It could have been years earlier.
[84] Because the circumstances involve a prior friendship, it appeared the parties involved borrowed from each other or provided other assistance involving matters outside of work (e.g the washing machine) and there are no specific dates to place the claims regarding the RSL in proximity to other matters,. There is insufficient evidence for me to be satisfied that the circumstances were that of an inappropriate abuse of authority as compared to a claim that it was a private matter outside of work. On that basis I will regard it as a neutral issue for the purposes of my determination.
Fourth finding - Assisting Family Members
[85] The Investigation Report included the following;
“..4. Adequate evidence that Mrs Oui has used her position of Programme Co-ordinator to ensure that if any of her family are serviced by the EIP team that her family members do not have to go through the same waitlist or triage/eligibility criteria that other community families would. Furthermore, that although the EIP staff know that it is not within EIP protocol they felt unable to question Mrs Oui’s decisions, for fear of retribution. Based on this information, it is the investigator’s assessment that (your) Mrs Oui’s actions are unprofessional, inappropriate, intimidating and a breach of the TAIHS Code of Conduct.
[86] The investigation report and termination letter provided no particulars regarding any specific allegations.
[87] This matter was not raised in the grievance that triggered Tracey Richards investigation. It was put to Kathy Anderson that this allegation was never put to Raylene Oui by Tracey Richards. Kathy Anderson could provide no evidence to assist on this issue, there was no corroborating witness evidence, no specific incident identified only stating that the interview with Raylene Oui was not the sole source of information.
[88] At one point Kathy Anderson said she understood Tracey Richards interview with Raylene Oui was cut short. It was put her to the interview between Raylene Oui and Tracey Richards went from 2.00pm to 2.14pm and Tracey Richards ended the interview. She then appeared to accept that. 116 According to the Applicant’s closing submissions the meeting lasted 37 minutes.117
[89] Again as the investigator Tracey Richards was not called to give evidence there is no way of knowing how she reached the finding she did which was then accepted by Kathy Anderson and incorporated into the termination letter. In the absence of any specific evidence it cannot be relied upon as a basis for dismissal.
Fifth finding - Use of Work Vehicle/Petrol Card
[90] The fifth finding of the investigation report referred to some evidence Raylene Oui used work resources for personal use but due to inadequate evidence and the matter being outside the scope of the investigation no outcome was reached.
[91] There is no evidence that anyone ever raised with Raylene Oui the manner in which she was using the work vehicle prior to the investigation. Raylene Oui said in her statement that she explained to Tracey Richards that it was used to pick up lunch and cigarettes daily. 118 Kathy Anderson said technically the vehicle should not be used in that way but she didn’t think it was an issue and minor use for personal reasons is okay. 119
[92] Raylene Oui rejected the claim put to her in cross examination that she had a conversation with Karen Mann asking her to come to the Shell service station and to bring the fuel card which she then used to fill her sons vehicle. 120
[93] It was put to Kathy Anderson any issue regarding the petrol card was never put to Raylene Oui by Tracey Richards. She said she told Tracey Richards”…we weren’t investigating any potential criminal matter. We were just investigating the workplace…” 121
[94] Ms Perigo for the Respondent clarified during the hearing for the Respondent’s that it did not seek to rely upon the petrol card issue as a factor in the termination. 122 Kathy Anderson also confirmed that issues relating to the fuel card were not a factor in the dismissal. 123 Considering the Respondents position and no evidence from the Investigator it cannot be relied upon as a basis for dismissal.
Performance Issues
[95] Despite the Respondent adopting the position that performance issues did not form part of the reasons for termination there was a clear undercurrent of issues concerning performance throughout the evidence. Kathy Anderson said in her statement that she was aware of the need to start a performance management process for Raylene Oui, irrespective of whether Karen Mann lodged a grievance. 124 Those issues included the following issues.
Reporting Requirements
[96] The Position Description for Raylene Oui’s role included the following; ‘Ensure the services delivered meet the requirements of the serviced delivery model and service agreement’. 125
[97] Raylene Oui claimed the only time she was required to do reporting was when the department required ‘stuff’ from our ODO and then it was handed over to the ODO. 126
[98] Raylene Oui accepted she was responsible for meeting the targets set by the funding bodies, 127 and also that the reports she provided did not contain all of the activity that the program was supposed to be providing. 128 She agreed the reports are due each January and July and that it was her responsibility to get them done on time, but claimed as a program co-ordinator it was her role to collect information and send it to the Organisational Development Officer (ODO) who is responsible for collecting the data and submitting the report to the government body FaHCSIA.129
[99] Raylene Oui was shown an email from Jessica Ballinger, a Senior Project Officer from FaHCSIA 130 which indicated she had not provided on time certain data required for a Performance Report required by the Department. She accepted it was her responsibility to submit this data.131
[100] It was put to Raylene Oui that the next report due on 31 January 2011 was not submitted to the ODO Kathy Anderson until 10 March 2011. The date was disputed but she agreed that the report did not contain correct information on client numbers and had insufficient information on the activities of the program. 132
[101] Kathy Anderson claimed she had spoken to Raylene Oui on a number of occasions about how statistics should be reported (i.e the number of contacts with the same client, and the number of different clients were to be recorded separately) and it was only when other staff pointed out the reporting was still incorrect that it became clear the issue was still a problem. 133
[102] Raylene Oui accepted the statistics she provided on 29 July 2011 again did not have much information. 134 The evidence indicates FaHCSIA was not satisfied with the reports provided. She said she could not recall if Kathy Anderson made her aware of the Departments concerns.135 She claims she was not made aware the continued funding of the program now relied on an improved performance,136 however she conceded Kathy Anderson may have told her about concerns raised by the Department. She did not seem to accept that the inadequacies in the reports were principally her responsibility.137
[103] Initially Raylene Oui said she couldn’t recall a conversation with Kathy Anderson on 21 September 2011 in relation to funding issues but remembered Kathy Anderson had asked her to come back to Townsville when she was told the Government Department was meeting with all staff in her program on 30 September to outline concerns regarding the program. She said as she was on “sorry business” as one of her relatives had passed away and she could not attend but had faith in her staff. She denied Kathy Anderson had told her in that conversation that the Government Department had concerns with the program and that funding may cease. 138
[104] It was Kathy Anderson’s evidence on Monday 26 September 2011 that she said words to the effect “I understand you need to attend a funeral and I’m not going to tell you how long you need to spend, but the meeting with FaHCSIA on Friday is very critical for the program and FaHCSIA is going to tell all staff the program is at risk of being defunded.” She agreed Kathy Anderson did ring her but believed it was on the Tuesday or Wednesday. 139
[105] Tanya Akee accepted the funding contract for the EIP required performance targets to be met and reports were required regarding those targets, and further Raylene Oui was responsible for compiling information that went into those reports in collaboration with the ODO. 140 Tanya Akee also agreed Raylene Oui had direct knowledge of that information required for the reports working with the ODO.141
[106] Tanya Akee confirmed an email of 1 February 2011 142 from Jessica Bell, Senior Project Officer at FaHCSIA concerned the six monthly performance report for July to December 2010 being late.143 Angelina Akee also confirmed other emails attached to the statement of Kathy Anderson concerned the reporting requirements of the program.144 Kathy Anderson accepted the floods and Cyclone Yasi formed a reasonable explanation for one of the reports being late at that time.145
[107] Tanya Akee also acknowledged she received an email dated 10 August 2011 from Gayle De Cruz also of FaHCSIA 146 stating the January to June 2011 performance report for the EIP was unable to be accepted because it did not report on all agreed activities in the activity work plan and the quality of the report was once again poor despite regular feedback on previous performance reports regarding expectations around report contents. The email said the EIP was potentially in breach of the funding agreement.
[108] Kathy Anderson expressed frustration that she had tried to get the information to improve the reports but could not get clear information from Raylene Oui. 147 Kathy Anderson said this was the only time she was aware the Department had raised a potential breach of a service delivery requirement.148 Tanya Akee also confirmed an email from Jessica Bell of FaHCSIA of 22 August 2011 set out in detail the deficiencies in the January to June 2011 report.149
[109] Tanya Akee agreed that while funding for the program was to be in place until 2014 the department had advised it would now be in place until December 2011. 150 On the issue of responsibility for preparation of the reports Tanya Akee said;
“‘---Well, the program coordinators would sit down with the organisation development officer. She would collate and write the report and submit it to the department..” 151
[110] Angelina Akee said if the program did not meet quotas, funding would be cut but not the program itself. 152It was her evidence that the Director of Operational Services, Kath Anderson was “wholly and solely responsible for the reporting back to the Department.” 153This claim however did not sit well with other evidence, including that of Raylene Oui’s, that the responsibility to compile the information to go into the reports was the Program Co-ordinators.
[111] Kathy Anderson gave clear evidence that it not her role but the managers role to prepare reports, it was her role to register all reports and she reported to the board. She said Raylene Oui was supposed to prepare a report on a FACHSIA provided template as with all the community service programs. 154 I accept Kathy Anderson’s explanation of the delineation of the roles, the evidence supports it and it would be illogical to suggest anyone other than the Program Co-ordinator would be responsible for collating that information. The evidence satisfies me Raylene Oui’s performance at the time of termination was unsatisfactory in regard to her reporting responsibilities.
Workshop 27-29 June Magnetic Island
[112] Raylene Oui agreed she attended a workshop in June 2011 at Magnetic Island to deal with ways to improve service delivery, and also to change the reporting process and structure. Mrs Oui claimed the two day workshop dealt with new paperwork and how clients were to be counted, and that the previous method used of counting each contact with a client itself was incorrect, as the number to be reported was the number of clients. Mrs Oui said she had no say in the implementation of the new forms which were endorsed by the CED. 155
[113] Raylene Oui rejected a claim that she had difficulty answering a question during the workshop about the way clients were to be counted when questioned about it, and also disagreed that she became angry, pushed back her chair and left the room when Karen Mann and Desley Barba answered the question. Raylene Oui said she left the room as her sick brother in law who was terminally ill. 156
[114] In a further dispute in the evidence, Kathy Anderson claimed that outside that meeting Raylene Oui said words to the effect of “it’s just when staff go big noting themselves and making out like I don’t know anything that I get upset but let them go.” Contrary to Kathy Anderson’s evidence she said she only spoke to Kath Hughes and they discussed her brother-in-law because Kath Hughes knows the family. She also denied saying “I already know all that stuff anyway” and also denied Kathy Anderson said to her “It’s important that you participate in the workshop” or that Kathy Anderson said it was important for her to attend the HR session of the workshop as it dealt with supervision and performance review. She denied saying to Kathy Anderson she would not attend the remainder of the conference. 157 Raylene Oui agreed information about the framework developed at the workshop was going to be trialed.158 I am more inclined to accept Kathy Anderson’s version that the counting of client numbers was discussed in the meeting and that she did speak to Raylene Oui after the meeting because it is consistent with the evidence that the way statistics were being kept by the EIP was an issue by this stage, Raylene Oui was having difficulty properly reporting, and addressing these issues was part of the purpose of the meeting.
Email of 14 October 2011
[115] Kathy Anderson referred to an email sent to her by Raylene Oui in response to her request on 14 October 2011 to make Karen Mann the contact person for FSS and seeking a meeting with Raylene Oui and her staff about the matter. 159 Kathy Anderson said she could not understand why the email response from Raylene Oui was curt and she had declined the request for a meeting as Kathy Anderson had already had a number of conversations with Raylene Oui about the matter.160 This evidence indicates to me a disconnection between the direction Kathy Anderson and Raylene Oui wanted to take the EIP. Raylene Oui, as manager was resisting changes such as the proposed relationship between FSS and EIP.
Role in decision to terminate
[116] Kathy Anderson said she was aware of problems in the EIP and she tried to work closely with Raylene Oui to talk to her about the new framework, service model and documents but meetings had to be post poned due to Raylene Oui being on leave. Kathy Anderson said Raylene Oui was away for 18.5 days over the period from 24 August to 18 November which was the period from her appointment as Interim CEO to Raylene Oui’s termination. She accepted in the circumstances of Raylene Oui’s relative passing away she was entitled to that time off and that was not an issue. 161
[117] Kathy Anderson gave evidence that issues regarding Raylene Oui’s performance did not form part of the reasons for termination, however she said she was attempting to work with Raylene Oui on performance issues. 162 She confirmed this again later saying the whole investigation was not to do with performance and further Raylene Oui’s performance was not a factor in her dismissal.163 She repeated this again saying issues concerning the Applicants own work performance including compliance with reporting requirements were not factors in her dismissal and the focus was on the allegations made on 17 October 2011.
[118] However later she said the following;
“..Even though she was terminated solely on the grounds of workplace bullying, it’s always a consideration in my mind whether we can work with the employee to address any issues. My feeling was we couldn’t. So that was a consideration. My overall interaction with Raylene indicated that there was very little chance of addressing anything because Raylene kept saying there was no problems. No, she didn’t do this. Nothing she did was wrong, nothing she did was wrong. That was always a consideration in my head..” 164
[119] This evidence indicates despite Kathy Anderson saying otherwise, Raylene Oui’s performance as well as the allegations concerning misconduct was a consideration at the time she was summarily dismissed.
Facebook Postings
[120] Certain comments Karen Mann made on her Facebook Page were put to her during cross examination. There was nothing arising from this material which could clearly be established as directly relevant to the matter of the relationship between Karen Mann and Raylene Oui. The Applicant has raised the nature of comments posted including some strong language to draw adverse inferences about Karen Mann, including that it is unlikely that she would be easily bullied or harassed by Raylene Oui. The comments were made on her own Facebook page and it appears directed to Facebook friends. I don’t think it is necessarily open to draw the inferences sought. I noted when Desley Barba was asked if she heard Karen Mann swear at work she replied “I hear them all swear.” 165
[121] The Applicant contended that Karen Mann’s explanation regarding a person she posted comments about on her Facebook page was not a client of the Respondent was not believable because the person contacted her on the work phone. However Karen Mann’s evidence was the contact was made on her personal mobile phone. The entry itself indicated it was posted on her Facebook page from a mobile phone which is consistent with her evidence that it was her own mobile phone. 166
[122] The evidence was the Facebook posting were generally not work related with the possible exception of a posting on 5 August 2011 made while at work from a mobile phone and which does not appear to be related to Raylene Oui.
Authority To Terminate
[123] Kathy Anderson said that she had delegation to terminate the Applicant effective from 24 August 2011. 167 She said Alan Eldridge who had previously been appointed in a funds administration role from 22 July was appointed with the authority of the CEO from 23 August 2011.168 He appointed her on 24 August 2011.169
[124] Kathy Anderson said the board was dysfunctional at the time, 170and it was not until 5 December 2011 that a board meeting ratified the termination of Raylene Oui,171however even then the delegation had still not returned to the Board, and this did not occur until funds administration ended on 12 March 2012.172 Kathy Anderson accepted that it was the Respondents policy that the termination of an employee had to be approved by the board; however the board did not have that authority at this particular time as it was not functioning and the delegation had been handed over.173
[125] I am satisfied on the evidence the Respondent was under a form of administration at the time of termination and the Board was not functioning. It seems reasonable to accept in these circumstances Kathy Anderson had the delegated authority to progress the matter without reference to the Board as would otherwise be the case under the relevant Policy.
Independent Investigation Report
[126] A significant issue creating a difficulty for the Respondents evidentiary case in this matter has been the failure of the Respondent to call the investigator Tracey Richards to give evidence. Kathy Anderson gave evidence that Tracey Richards was a Psychologist. 174
[127] Kathy Anderson had little knowledge of the allegations and relied almost entirely on the report of Tracey Richards to make her decision. Compounding this difficulty for the Respondent is the fact that the Investigation Report itself does not describe in any detail the evidence drawn by the Investigator to make the findings she did. Under the heading “Information Gathered from Interviews” the report says; “The investigator conducted interviews with several key witnesses and Ms Karen Mann.” Other than Ms Mann the report does not identify by name any other person interviewed or detail what they said.
[128] The report appears to seek to summarise what Tracey Richards believed are the views of “several key witnesses and Karen Mann” regarding allegations she presumably discussed with Karen Mann and other persons who are not identified.
[129] It is also clear from the Investigation Report Tracey Richards made findings about two issues that the evidence shows were never properly put to Raylene Oui. These matters that were not put to Raylene Oui became findings but with no particulars provided about how she made these findings.
[130] Because the report does not particularise specific evidence or statements it is not known if she compared the evidence or statements of persons being interviewed with statements or evidence of the Applicant. It is not at all clear from the Investigation Report how Tracey Richards reached the conclusions she did.
[131] Kathy Anderson accepted in cross examination that she had not discussed any of the allegations herself with Raylene Oui. 175 Kathy Anderson also said Raylene Oui was advised at a meeting on 27 October that she would be given an opportunity to respond to the allegations made against her.176 177
[132] Kathy Anderson gave evidence that she proceeded to make her decision on the basis that Tracey Richards report was correct. 178 She said she assumed that Tracey Richards spoke to the staff named in Karen Mann’s grievance but there is no evidence from anyone on that point.179
[133] It is also reasonably clear contrary to Kathy Anderson’s claim that Raylene Oui denied all of the allegations, that at least in regard to the use of the work vehicle and borrowing money she did not deny them at all.
[134] With regard to the fourth finding in the Investigation Report that Raylene Oui used her position of Programme Co-ordinator to ensure her own family members are serviced by the EIP team, the matter was not raised in the grievance from Karen Mann and again because Tracey Richards did not give evidence there is no evidence to contradict Raylene Oui’s claim that the allegation was never put to her. On that basis I must accept Raylene Oui’s claim to be correct.
[135] When asked why Raylene Oui was not given an opportunity to respond to Tracey Richards Investigation Report she responded that the investigation was the process for a response. She agreed the process was “very abrupt”, and there could have been more discussion with Raylene Oui. 180
[136] I am satisfied that the way the investigation was conducted was unfair and the manner in which the investigation report was compiled and produced was unsatisfactory for the purposes of the findings reached. The fact that Raylene Oui was not given an opportunity to respond to the findings in it before the employer summarily dismissed her compounds the problem. The deficiencies in the investigation process have not been able to be answered by the Respondent in the hearing of this application because it did not call the investigator to give evidence and its other witnesses were unable to provide evidence about the investigation process.
[137] In the circumstances I think it appropriate to draw a Jones v Dunkel 181inference that the evidence of Tracey Richards would not have assisted the Respondents case as there has been no satisfactory explanation for the failure to call her when she was the only person in a position to give evidence to answer the Applicants attacks on the investigation she conducted and the report she tendered. Those attacks included the claimed failures to put to Raylene Oui matters that became the subject of findings against her, and also the general failure of the report to provide specific evidence that was relied upon as the basis to reach the ultimate findings.
Summary Dismissal
[138] It was common ground that Raylene Oui was terminated on the morning of 18 November 2011 when Kathy Anderson and Kath Hughes came to see her and she was handed the terminated letter. The nature of termination was summary dismissal for gross misconduct based on breaches of the Workplace Bullying and Harassment Policy (findings one and two relating to bullying and harassment and three), and breaches of the TAIHS Code of Conduct (findings three and four based on borrowing money from staff and family accessing the EIP).
HARSH, UNJUST OR UNREASONABLE
[139] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account considerations set out in section 387.
(a) Valid reason related to capacity or conduct
[140] The termination letter of 17 November lists four findings of the investigation. The first finding is written in general terms and does not specify any specific incident, referring only to Raylene Oui’s ‘communication style’ being inappropriate, unprofessional, aggressive, intimidating, threatening and bullying in nature.
[141] I have considered the allegations one to four described above made by Karen Mann as intended to be the basis for this finding in the report. The second finding regarding Raylene Oui “demanding a report” from Karen Mann is allegation five also dealt with above. On the basis of my views already expressed in detail above concerning these allegations one to five I am not satisfied that these allegations that became the subject of the first and second findings in the termination letter, either separately or taken together, constitute a valid reason for dismissal related to Raylene Oui’s conduct.
[142] The evidence with regard to these allegations does not disclose a simple case of bullying and harassment by a manager of an employee under their supervision. The matter is more complex. It involved a pre-existing friendship between the respective parties that turned sour. Raylene Oui clearly had an issue with Karen Mann’s timeliness, no doubt exacerbated by her period of unauthorised leave in February 2011 that nearly led to Karen Mann’s termination by the Respondent. Karen Mann felt Raylene Oui did not recognise the contribution she was seeking to make to improve the EIP and worse believed she appropriated her ideas without acknowledgement. The evidence does indicate Raylene Oui’s communication style toward Karen Mann was at times unprofessional and inappropriate, Desley Barba’s evidence supports this conclusion. I am not satisfied however it rose to a level that was bullying and harassment of a kind justifying dismissal.
[143] On the evidence provided to FWA it would seem the Respondent had more appropriate options available under clause 12of itsSexual Harassment, Discrimination, and Workplace Harassment/Bullying Prevention Policy. The Policy says that if a complaint is substantiated, it may be dealt with under the TAIHS Disciplinary Policy and depending on the severity of a case, possible disciplinary action can include, a verbal or written apology; transfer to another position; warning notes on file; demotion, or termination. Termination was too harsh. I also note mediation was never proposed by the Respondent, either before or after the investigation.
[144] In regard to the third finding concerning the borrowing of money, and the fourth finding with regard to family members being serviced by the EIP, for the reasons set out above I am not satisfied the evidence supports a conclusion that either of those matters was a valid reason for dismissal related to conduct. There is simply insufficient evidence to be satisfied with regard to either matter for the Respondent to be able to discharge the onus on it to show that on balance the allegations were either made out, or in the alternative with regard the borrowing of money were conduct of a kind that justified dismissal.
[145] As stated above I do not intend to have regard to the matters concerning the use of the vehicle or petrol card.
[146] The evidence supports a conclusion that Raylene Oui’s capacity as program co-ordinator is a relevant consideration. The Applicant correctly argues her capacity is not “after acquired” information as the employer was aware of performance issues at the time of termination. At the date of termination these performance issues had not yet been the subject of any disciplinary process by the Respondent. Kathy Anderson indicated in her evidence they were about to be. I am satisfied based on the evidence that Raylene Oui’s performance as Program Co-ordinator was unsatisfactory in regard to her failures to provide the relevant information for reporting and justified disciplinary steps that may have led to termination. Her failures in this regard had started to jeopardised future funding of the Program. For reasons only known to the Respondent it did not commence a performance management process sooner. However in the circumstances where the employer has consistently said performance was not an issue in their decision and it had not even commenced the first step toward a disciplinary process in regard to performance it would not be appropriate to now conclude it was a valid reason for termination as at 18 November 2011.
(b) whether the person was notified of that reason;
[147] I have dealt with the failings with regard to the conduct of the investigation at length. While Raylene Oui did have notice of the grievances that became the subject of findings one and two, she did not have notice of any matters concerning borrowing money until her interview on 11 November, and elements of the third finding were never put to her at that interview. The fourth finding was never put to her.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[148] In the absence of Tracey Richards I have accepted the evidence of Raylene Oui regarding the interview conducted on 11 November and accept that elements of the third finding, and generally the fourth finding were never put to Raylene Oui. To subsequently rely on those findings as a basis to terminate her is unfair.
[149] The Applicant has made much of the fact that Raylene Oui was not given an opportunity to have an audience with the Board of Directors in accordance with the Disciplinary Policy. In the circumstances where the Board was not functioning and the Respondent was unable to comply with that part of its Policy at the time of termination I have not formed an adverse view about the Respondent’s approach on that issue.
(g) absence of dedicated human resource management specialists or expertise;
The Respondent had a dedicated Human Resource specialist at the time of termination.
[150] Section 387(d) (e) (f) and (h) were not factors in this case.
[151] Taking into account the relevant consideration in section 387 I am not satisfied that the circumstances of this case justified dismissal. The Applicant was dismissed summarily. The evidence does not support a conclusion that her conduct falls within the definition of serious misconduct as defined in the Fair Work Act. It was not wilful or deliberate behaviour inconsistent with the continuation of the contract of employment, or conduct that causes serious and imminent risk to the health or safety of a person, or the reputation, viability or profitability of the employer’s business. It did not involve theft, or fraud or assault. She did not refuse to carry out a lawful and reasonable instruction.
[152] I am also satisfied that by failing to conduct an investigation that afforded Raylene Oui procedural fairness the Respondent was in breach of its own Code of Conduct which sets out a requirement at Clause 5.2.1 for it to treat employees fairly and honestly, and abide by relevant work-related legislation, its Code of Practice, Operational Guidelines and Human Resource Policies.
[153] I have also accepted Raylene Oui’s performance regarding the reporting responsibilities of her role and also that at times her communication style was unprofessional and inappropriate. While not being satisfied these matters were a valid reason for termination as at 18 November 2011 they need to be considered on the question of appropriate remedy.
REMEDY
[154] Mrs Oui confirmed in cross examination she was not seeking reinstatement but compensation. 182 On that basis and because it is apparent the relationship would be unlikely to be able to be restored I will exclude reinstatement from consideration. As it was a case of summary termination no notice was paid.
[155] Raylene Oui’s gross average weekly wage based on an hourly rate of $30.36 was $1,153.68. This is $59,991.36 per annum. I think it is reasonable to assume given the performance issues concerning the reporting requirements for the EIP, concerns of the funding body, impending performance management by Kathy Anderson of Raylene Oui and also animosity between the two over the future direction of the EIP Raylene Oui was unlikely to have continued in employment with the Respondent for more than six weeks.
[156] I calculate the remuneration that Raylene Oui would have received, or would have been likely to receive, if her employment had not been terminated, at $6,922.08. The evidence was Raylene Oui did not gain other employment within six weeks of her termination and therefore I make no further deduction on basis of other income earned.
[157] After the conclusion of the hearing I requested information from the parties concerning Raylene Oui’s income. From that request has arisen a dispute regarding Raylene Oui’s annual leave balance, the Respondent saying it ‘forgave’ a negative leave balance on termination and the Applicant rejecting this. I have decided it is not necessary to address that issue for the purposes of appropriate compensation as the parties have other ways of resolving that dispute.
[158] There was no evidence an order for compensation of $6,922.08 would affect the viability of the employer’s enterprise. Raylene Oui’s length of service was approximately 5 years and 6 months from April 2006 until 18 November 2011. It provides no basis to further reduce compensation. There was little evidence on the issue of mitigation of loss. Raylene Oui found some casual work with the North Queensland Land Council two weeks prior to the commencement of the trial. 183I will not make a further deduction on that basis.
[159] I make another deduction of 15% on the basis of that I am satisfied Raylene Oui spoke to Karen Mann in an inappropriate manner on occasions which gave rise to the grievance and this has contributed to the Respondents decision to terminate her. This deduction results in an amount of $5,883.77. I am satisfied that an order for the payment of $5,883.77 gross, taxed according to law, is appropriate and accords a fair go all round to the Respondent and Raylene Oui. An order to this effect will issue shortly.
COMMISSIONER
Appearances:
Mr O’Donnell for the Applicant.
Ms Perigo for the Respondent.
Hearing details:
2012.
Brisbane,
22 March
Townsville:
28 May;
29 May,
30 May.
1 Exhibit 5 Statement of Catherine Frances Anderson dated 8 March 2012 Annexure L
2 Applicants outline of Submissions Paragraph 19
3 Respondent’s outline of Submissions Paragraph 9
4 Applicants outline of submissions Paragraph 24,
5 Respondent’s outline of submissions Paragraph 10
6 Exhibit 5 Statement of Catherine Frances Anderson dated 8 March 2012 Paragraph 140 to 144
7 Exhibit 5 Statement of Catherine Frances Anderson dated 8 March 2012 Annexure S
8 Exhibit 5 Statement of Catherine Frances Anderson dated 8 March 2012 Paragraph 151
9 Exhibit 5 Statement of Catherine Frances Anderson dated 8 March 2012 Annexure T Clause 5.1
10 Transcript dated 28 May 2012 PN 338 to 340
11 Transcript dated 28 May 2012 PN 341 to 346
12 Transcript dated 28 May 2012 PN 349
13 Exhibit 5 Statement of Catherine Frances Anderson dated 8 March 2012 Annexure T
14 Transcript dated 28 May 2012 PN 352 to 361
15 Exhibit 5 Statement of Catherine Frances Anderson dated 8 March 2012 Annexure J
16 Exhibit 6 Statement of Karen Elizabeth Mann dated 1 March 2012 Paragraph 77
17 Transcript dated 28 May 2012 PN 521
18 Transcript dated 28 May 2012 PN 524
19 Transcript dated 28 May 2012 PN 530
20 Transcript dated 28 May 2012 PN 564
21 Exhibit 5 Statement of Catherine Frances Anderson dated 8 March 2012 Annexure V
22 Exhibit 5 Statement of Catherine Frances Anderson dated 8 March 2012 Annexure R
23 Transcript dated 28 May 2012 PN586
24 Transcript date 29 May 2012 PN 2726
25 Transcript dated 28 May 2012 PN 643 to 649
26 Exhibit 1 Amended Statement of Raylene Violet Oui Paragraph 36 to 37
27 Transcript dated 28 May 2012 PN 652
28 Transcript dated 30 May 2012 PN3056
29 Transcript dated 29 May 2012 PN 2036 to 2038
30 Transcript dated 29 May 2012 PN 2040 to 2044
31 Transcript dated 29 May 2012 PN 2045
32 Transcript dated 30 May 2012 PN3058
33 Transcript dated 28 May 2012 PN 636
34 Transcript dated 28 May 2012 PN 654
35 Exhibit 1 Amended Statement of Raylene Violet Oui Paragraph 42
36 Exhibit 6 Statement of Karen Elizabeth Mann dated 1 March 2012 Paragraph 43
37 Transcript dated 28 May 2012 PN 657
38 Exhibit 2 Additional Statement of Raylen Violet Oui Paragraph 21
39 Transcript dated 28 May 2012 PN 687 to 696
40 Transcript dated 28 May 2012 PN 666
41 Transcript dated 29 May 2012 PN 2742 to 2743
42 Exhibit 6 Statement of Karen Elizabeth Mann dated 1 March 2012 Paragraph 28 to 37
43 Transcript dated 29 May 2012 PN 2045
44 Exhibit 6 Statement of Karen Elizabeth Mann dated 1 March 2012 Paragraph 53
45 Transcript dated 28 May 2012 PN 731
46 Transcript dated 28 May 2012 PN 736
47 Transcript dated 28 May 2012 PN 741
48 Transcript dated 28 May 2012 PN 1045 to 1049
49 Transcript dated 28 May 2012 PN 1049 to 1052
50 Exhibit 5 Statement of Catherine Frances Anderson dated 8 March 2012 Paragraph 175
51 Transcript dated 29 May 2012 PN 2706
52 Exhibit 3 Statement of Tanya Marie Akee Paragraph 17
53 Exhibit 3 Statement of Tanya Marie Akee Paragraph 15, 16 and 17
54 Transcript dated 29 May 2012 PN 2062
55 Transcript dated 29 May 2012 PN 2064 to 2066
56 Exhibit 6 Statement of Karen Elizabeth Mann dated 1 March 2012 Paragraph 50
57 Transcript dated 30 May 2012 PN 3115
58 Transcript dated 30 May 2012 PN 3125
59 Transcript dated 30 May 2012 PN 3129
60 Exhibit 8 Statement of Desley Robert Barba dated 3 March 2012 Paragraph 15
61 Exhibit 6 Statement of Karen Elizabeth Mann dated 1 March 2012 Paragraph 58
62 Exhibit 6 Statement of Karen Elizabeth Mann dated 1 March 2012 Paragraph 60
63 Exhibit 6 Statement of Karen Elizabeth Mann dated 1 March 2012 Paragraph 21
64 Transcript dated 30 May 2012 PN 2944 to 2945
65 Exhibit 6 Statement of Karen Elizabeth Mann dated 1 March 2012 Paragraph 23
66 Exhibit 6 Statement of Karen Elizabeth Mann dated 1 March 2012 Paragraph 14
67 Exhibit 6 Statement of Karen Elizabeth Mann dated 1 March 2012 Paragraph 63
68 Exhibit 6 Statement of Karen Elizabeth Mann dated 1 March 2012 Paragraph 64
69 Transcript dated 28 May 2012 PN 747 to 751
70 Transcript dated 28 May 2012 PN 761 to 762
71 Exhibit 8 Statement of Desley Robert Barba dated 3 March 2012 Paragraph 15
72 Exhibit 6 Statement of Karen Elizabeth Mann dated 1 March 2012 Paragraph 67
73 Transcript dated 29 May 2012 PN 2015
74 Transcript dated 29 May 2012 PN 2013
75 Transcript dated 28 May 2012 PN 550 to 554
76 Transcript dated 28 May 2012 PN1053 to 1054
77 Transcript dated 28 May 2012 PN 812
78 Transcript dated 28 May 2012 PN 826
79 Transcript dated 30 May 2012 PN 2942
80 Transcript dated 30 May 2012 PN 2992 to 2993
81 Transcript dated 28 May 2012 PN 824
82 Exhibit 6 Statement of Karen Elizabeth Mann dated 1 March 2012 Paragraph 115
83 Transcript dated 29 and 30 May 2012 PN 1394 to 1402 and PN 3544
84 Transcript dated 28 May 2012 PN 1781 to 1784
85 Transcript dated 29 May 2012 PN 2157 to 2158
86 Transcript dated 30 May 2012 PN 3577
87 Transcript dated 30 May 2012 PN 3534 to 3535
88 Transcript dated 28 May 2012 PN 775
89 Transcript dated 28 May 2012 PN 771
90 Transcript dated 28 May 2012 PN 779
91 Transcript dated 28 May 2012 PN 785
92 Transcript dated 28 May 2012 PN 788
93 Exhibit 8 Statement of Desley Robert Barba dated 3 March 2012 Paragraph 14
94 Transcript dated 30 May 2012 PN 3539
95 Transcript dated 28 May 2012 PN 1060
96 Transcript date 29 May 2012 2161
97 Transcript dated 28 May 2012 PN 2162 to 2164
98 Exhibit 6 Statement of Karen Elizabeth Mann dated 1 March 2012 Paragraph 72 to 77
99 Exhibit 6 Statement of Karen Elizabeth Mann dated 1 March 2012 Paragraph 80 to 84
100 Exhibit 6 Statement of Karen Elizabeth Mann dated 1 March 2012 Paragraph 90
101 Exhibit 6 Statement of Karen Elizabeth Mann dated 1 March 2012 Paragraph 93
102 Transcript dated 30 May 2012 PN 3159
103 Transcript dated 28 May 2012 PN 857
104 Transcript dated 28 May 2012 PN 838
105 Transcript dated 28 May 2012 PN 846
106 Transcript dated 28 May 2012 PN 841
107 Transcript dated 28 May 2012 PN 835
108 Exhibit 6 Statement of Karen Elizabeth Mann dated 1 March 2012 Paragraph 95
109 Exhibit 1 Amended Statement of Raylen Violet Oui Paragraph 73 to 77
110 Transcript dated 28 May 2012 PN 862
111 Transcript dated 29 May 2012 PN 1999
112 Transcript dated 30 May 2012 PN 3173
113 Transcript dated 30 May 2012 PN 3175
114 Transcript dated 30 May 2012 PN 3180
115 Transcript dated 29 May 2012 PN 2255
116 Transcript dated 29 May 2012 PN 2282 to 2289
117 Applicant’s Closing Submission Paragraph 8
118 Exhibit 1 Amended Statement of Raylene Violet Oui Paragraph 51 to 52
119 Transcript dated 29 May 2012 PN 2079
120 Transcript dated 28 May 2012 PN 918
121 Transcript dated 29 May 2012 PN 2085
122 Transcript dated 29 May 2012 PN 2148
123 Transcript dated 29 May 2012 PN 2357
124 Exhibit 5 Statement of Catherine Frances Anderson dated 8 March 2012 Paragraph 88
125 Exhibit 5 Statement of Catherine Frances Anderson dated 8 March 2012 Annexure A
126 Transcript dated 28 May 2012 PN 282 to 288
127 Transcript dated 28 May 2012 PN 393
128 Transcript dated 28 May 2012 PN 396
129 Transcript dated 28 May 2012 PN 396 to 399
130 Exhibit 5 Statement of Catherine Frances Anderson dated 8 March 2012 Annexure B
131 Transcript dated 28 May 2012 PN 409
132 Transcript dated 28 May 2012 PN 411 to 414
133 Transcript dated 29 May 2012 PN 2488 to 2493
134 Transcript dated 28 May 2012 PN 421 to 434
135 Transcript dated 28 May 2012 PN 438
136 Transcript dated 28 May 2012 PN 439
137 Transcript dated 28 May 2012 PN 440
138 Transcript dated 28 May 2012 PN 480
139 Transcript dated 28 May 2012 PN 493 to 495
140 Transcript dated 29 May 2012 PN 1139 to 1143
141 Transcript dated 29 May 2012 PN 1144
142 Exhibit 5 Statement of Catherine Frances Anderson dated 8 March 2012 Annexure C D and E
143 Transcript dated 28 May 2012 PN 1148
144 Transcript dated 28 May 2012 1466 to 1467
145 Transcript dated 29 May 2012 PN 2459 to 2462
146 Transcript dated 28 May 2012 PN 1152
147 Transcript dated 29 May 2012 PN 2498
148 Transcript dated 29 May 2012 PN 2501 to 2503
149 Transcript dated 28 May 2012 PN 1154
150 Transcript dated 29 May 2012 PN 1166 and 1173
151 Transcript dated 28 May 2012 PN 1244
152 Transcript dated 29 May 2012 PN 1378
153 Transcript dated 29 May 2012 PN 1371 to 1372
154 Transcript dated 29 May 2012 PN 2337 to 2340
155 Transcript dated 28 May 2012 PN 1041 to 1044
156 Transcript dated 28 May 2012 PN 450 to 664
157 Transcript dated 28 May 2012 PN 450 to 464
158 Transcript dated 28 May 2012 PN 469
159 Exhibit 5 Statement of Catherine Frances Anderson dated 8 March 2012 Paragraph 93
160 Transcript dated 30 May 2012 PN2592 to 2619
161 Transcript dated 30 May 2012 PN 2356 to 2359
162 Transcript dated 29 May 2012 PN 2124
163 Transcript dated 29 May 2012 PN 2355
164 Transcript dated 29 May 2012 PN 2628
165 Transcript dated 30 May 2012 PN 3580
166 Transcript dated 30 May 2012 PN 3349 to 3361
167 Exhibit 5 Statement of Catherine Frances Anderson dated 8 March 2012 Paragraph 172
168 Transcript dated 29 May 2012 PN 1694 to 1700
169 Transcript dated 29 May 2012 PN 1717
170 Transcript dated 29 May 2012 PN 1718
171 Transcript dated 29 May 2012 PN 1736
172 Transcript dated 29 May 2012 PN 2390
173 Transcript dated 29 May 2012 PN 1738 to 1744
174 Transcript dated 28 May 2012 PN 2027
175 Transcript dated 29 May 2012 PN 2007 to 2010
176 Transcript dated 28 May 2012 PN 2012
177 Exhibit 5 Statement of Catherine Frances Anderson dated 8 March 2012 Annexure P
178 Transcript dated 29 May 2012 PN 2261
179 Transcript dated 29 May 2012 PN 2269
180 Transcript dated 29 May 2012 PN 2528
181 Jones v Dunkel inference ((1959) 101 Clr 298-308)
182 Transcript dated 28 May 2012 PN 1073 to 1077
183 Transcript dated 28 May 2012 PN 1002
Printed by authority of the Commonwealth Government Printer
<Price code {C}, PR521844>
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