Renee Duncan v Community Connections (Vic) Ltd
[2010] FWA 252
•19 JANUARY 2010
[2010] FWA 252 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
Community Connections (Vic) Ltd
(U2009/12485)
DEPUTY PRESIDENT IVES | MELBOURNE, 19 JANUARY 2010 |
Termination of employment.
[1] This decision relates to an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) by Ms R Duncan (the Applicant) claiming that the termination of her employment on 18 September 2009 by Community Connections (Vic) Ltd (the Respondent) was unfair within the meaning of s.385 of the Act.
[2] After taking into account, as required by s.399 of the Act, the views of the parties and whether a hearing would be the most effective and efficient way to resolve the matter, the matter went forward by way of hearing before Fair Work Australia (FWA) on 17 December 2009.
[3] The following witnesses provided sworn evidence both written and oral:
- The Applicant
- Ms C Umbers - Executive Manager, Child Safety and Disability for the Respondent
- Ms T Bage - Human Resources Coordinator for the Respondent
- Ms S Prescott – Executive Director, Services and Innovations for the Respondent.
Background Facts
[4] The Respondent is a not-for-profit non government organisation providing social services including, inter alia, residential care ‘to early adolescent children that come from abusive, fragmented homes who have complex needs and may have been exposed to physical and verbal abuse, sexual assault, drugs and alcohol’. 1
[5] At the time of the termination of her employment the Applicant held the position of Unit Supervisor of a particular residential unit or units operated by the Respondent.
[6] On 5 September 2009 the Applicant permitted a small group of fifteen year old boys, including her son, to have a party at her home. The Applicant was present at the time of the party and further permitted the boys to provide themselves with and consume alcohol.
[7] It is the Applicant’s uncontested evidence that the parents of those boys attending understood and agreed to their children consuming alcohol under the Applicant’s supervision. 2
[8] Apparently as a consequence of a complaint about noise, the police attended at the Applicant’s home at around 9.45 pm on 5 September. On two further occasions during the course of the evening the police attended to deal with a number of ‘gatecrashers’ at the party. According to the Applicant’s evidence the only issue of substance relating to police attendance remained that of noise. 3
[9] On 9 September 2009 there appeared a local Warrnambool newspaper article about police attendance at a party on the previous Saturday night. Among other things, the article attributed to a police officer certain comments about the party hosting intoxicated minors. The report identified neither the Applicant nor her address.
[10] In an attempt to provide her version of what had occurred on the evening of the party the Applicant contacted the local newspaper and a subsequent article appeared on 10 September 2009. This latter article identified the Applicant by name and quoted her as reportedly stating, inter alia: “There’s underage drinking everywhere in this town. At least in my home I kept an eye on them and no one was hurt.” 4 The article further quoted the Applicant as reportedly stating: “I told all the parents I talked to there would be alcohol here and their parents said they could have a couple.”5 The Applicant, in her evidence, acknowledged that she had said “something like that”6 to the newspaper.
[11] On 10 September 2009 the Respondent advised the Applicant that she was stood down from her position pending an investigation of the incidents that were the subject of the newspaper reports.
[12] Later on the same day the Applicant attended a meeting with representatives of the Respondent at which she provided certain information about the party on 5 September. The outcome of this meeting was that the Applicant remained stood down on pay subject to further actions by the Respondent.
[13] The evidence of both Ms Bage and Ms Prescott who were in attendance at the meeting of 10 September with the Applicant is that the Applicant was requested at the meeting to have no further contact with the media regarding the party incident. 7 The Applicant’s evidence is that the request was limited to refraining from mentioning her employer in any discussion with the media.8
[14] Subsequently the Respondent forwarded correspondence, dated 11 September 2009, to the Applicant requesting her attendance at a meeting to be held on 16 September 2009 and, inter alia, directing her “to make no further public comment that may be of detriment to Community Connections and our young people in care. Please be reminded that this matter is totally confidential.” 9
[15] There were two further newspaper articles. The first in the Herald Sun on 11 September in which, inter alia, the Respondent is identified as is the fact that the Applicant has been stood down from her job. Among various quotes attributed to the Applicant, the Herald Sun was reportedly told “There is a huge issue in this town with underage drinking, from 12 up … the only way to get my son and his friends to drink safely was here at home where I could watch them” … “If your child lives in Warrnambool and they go out and they are not in your care, they are going to be drinking”. “I told the parents there would be alcohol here and if they didn’t want their kids drinking they shouldn’t let their sons come”. 10 The Applicant acknowledged advising the Herald Sun of the name of her employer but claims that the interview predated any advice to her from the Respondent regarding public comment.11
[16] A further article appeared in the local Warrnambool newspaper on 12 September 2009. The Applicant claims to have refused to comment to the newspaper in respect of this subsequent article. 12
[17] The Applicant also participated in radio interviews regarding the party incident and its aftermath on both 11 and 12 September 2009. At the time of these interviews the Applicant claimed not to have been in receipt of the Respondent’s 11 September correspondence. 13
[18] On 16 September 2009 the Applicant attended a scheduled meeting with representatives of the Respondent to further investigate and discuss her conduct. The Applicant was supported at the meeting by representatives of the Australian Services Union (the ASU).
[19] The Applicant’s employment was terminated by the Respondent on 18 September 2009.
[20] A letter confirming the termination of employment and forwarded to the Applicant states (in part):
“We have carefully considered your responses to this matter at our meeting as of 16 September, 2009 which you attended with two representatives from the Australian Services Union and have decided that your responses are unsatisfactory…. By permitting underage drinking you contravene the principles of child safety and child welfare. This is deemed to be a serious breach of our Code of Conduct and the AASW Code of Ethics.
As such, we have decided that your actions constitute serious misconduct. We have explored the range of penalties available, and have decided that your actions are significantly serious that the employment relationship has been broken down irretrievably ….” 14
[21] The Applicant has obtained no other paid employment subsequent to the termination and up to the date of the hearing.
The Act
[22] Sections 385 and 387 of the Act relevantly provide:
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
Preliminary Findings
[23] The Applicant was dismissed by the Respondent. The dismissal was not a genuine redundancy. The Small Business Fair Dismissal Code is not relevant to this matter as the Respondent is not a small business employer as defined by s.23 of the Act. It remains to determine whether the dismissal was harsh, unjust or unreasonable.
Valid Reason
[24] The facts in this matter have been adequately summarised above. They are largely uncontested. What is at issue is whether those facts, objectively considered, are sufficient to adequately ground the termination of the Applicant’s employment.
[25] In determining whether a valid reason existed for the termination two significant issues arise. The first relates to the Applicant’s conduct and the second to the particular circumstance in which that conduct occurred.
[26] Simply put, the relevant conduct is that the Applicant permitted a group of minors under her direct supervision to consume alcohol and subsequently sought to publicly explain and justify her action via various media outlets.
[27] The particular circumstance of the conduct is that it occurred outside the Applicant’s workplace and in her own, as opposed to paid, time.
[28] It is convenient to deal with the latter issue first. It is well established that ‘out of the workplace – out of hours’ conduct by an employee may be a valid basis for termination of employment. 15 The question that generally arises is whether the conduct has a sufficient nexus with the particular employment to be properly relied upon as a ground or grounds for termination.
[29] In this case two of the key Responsibility Areas of the Applicant in her professional capacity were:
- “Providing a consistent caring atmosphere in a manner which best meets the physical, social, educational and emotional needs of young people in residence.
- Providing consistent management of the challenging behaviours which are frequently presented by young people in residential care such as self harming, substance abuse, violent and aggressive behaviours and criminal activities.” 16
These and other responsibilities of the Applicant were carried out in a work environment in which minors resided and in which the consumption of alcohol was not only actively discouraged but prohibited by policy - policy with which the Applicant in her evidence both agreed and considered appropriate. 17
[30] The Applicant consistently defended her conduct on the night of the party in permitting the consumption of alcohol as being in the nature of ‘harm minimisation and risk management’. 18 The latter being concepts she regarded as also having application to her professional role. In essence it was the Applicant’s position that as, in her view, the participants at the party on 5 September would have been consuming alcohol in any event, it was preferable, in an effort to minimise the harm that may come to them, that they do so under her direct supervision. She did not adequately explain why she did not believe a similar accommodation of alcohol consumption was appropriate for her workplace.19
[31] Ms Umbers gave evidence that the Applicant had, in the past, brought to Ms Umbers’ attention that an ex-employee of the Respondent, a school teacher, had held a party for minors and provided alcohol for consumption at the party. According to Ms Umbers, the Applicant had expressed disapproval about this action and Ms Umbers further stated that, “[w]e had a conversation about it in relation to how, as a school teacher, you’re expected to act in a different way than a regular person and we talked about that in – within our own role.” 20
[32] The Applicant acknowledged that she had thought the alleged action of the school teacher inappropriate and stated “… the fact that she supplied the alcohol I thought was inappropriate. I didn’t supply alcohol.” 21
[33] In my view there is ample connection between the relevant ‘out of hours’ conduct of the Applicant on the night of the party and the responsibilities of the Applicant’s role as a residential Unit Supervisor for the Respondent, to legitimately consider such conduct as a basis for the termination of the Applicant’s employment.
[34] The Full Bench in Farquharson and Qantas Airways Ltd relevantly states:
“Conduct which gives rise to a material risk of damage to an employer’s interests, even if there is no actual damage in the particular case, may nevertheless be conduct that attracts the legitimate concern of the employer and may thus, depending on the circumstances, constitute conduct that provides a “valid reason” for termination of employment.” 22
[35] In this matter a significant issue of credibility arises. Not only the future professional credibility of the Applicant in respect of residential unit clients, but ultimately also of the Respondent if it is seen publicly to be related to the condoning or in any way accepting or permitting of alcohol consumption by minors.
[36] If the Applicant truly believes the justification she gave for permitting alcohol consumption at the party then she is significantly at odds with the professional stance of the Respondent with respect to alcohol consumption by minors whilst within its care and at odds with the professional stance she has adopted in her role as Unit Supervisor and has given evidence that she agrees with. 23 This is notwithstanding that there may be substantial differences between the issues faced by, and the circumstances of those individual minors at the party of 5 September 2009 and those, at any given point in time, resident within the Respondent’s facilities.
[37] I have already found a sufficient nexus between the Applicant’s conduct in permitting alcohol consumption by minors at the party of 5 September 2009 and the legitimate concern of the Respondent, in the light of such conduct, regarding the question of the Applicant’s ongoing employment. It is necessary now to consider whether the Applicant’s conduct at the party and subsequent media involvement is a valid reason for the termination of her employment.
[38] The Applicant, whilst claiming that her permission for the consumption of alcohol by minors was driven by ‘harm and risk minimisation’, seems to make much of the fact that she did not supply alcohol at the party. She, at least partly, distinguishes her conduct from the alleged conduct of the school teacher referred to above on this basis.
[39] It is not clear to me how the Applicant considers her own conduct as less culpable than that for which she considers the school teacher blameworthy in circumstances in which she has abided by and expressed agreement with the policy of the Respondent with respect to alcohol consumption by minors. It appears to me to be likely that the Applicant has fastened upon the distinguishing feature of source of supply as a distraction meant to mitigate the potential consequences of what she knew to be unsatisfactory behaviour when considered in the context of her duties to the Respondent.
[40] The Applicant went to some lengths to present ‘her side of the story’ to the media. The initial media article of 9 September 2009 identified neither the Applicant nor her address. It was as a consequence of the Applicant contacting the newspaper concerned and identifying herself in an attempt to correct what she considered to be inaccuracies in the initial article that she became, by name, the subject of further articles. 24 The Applicant subsequently identified the Respondent by name in an interview with the Herald Sun newspaper, the result of which was published on 11 September 2009.25
[41] Whether there has been actual damage to the Respondent’s interests brought about by the publicity surrounding the Applicant’s conduct, is likely difficult to ascertain. It seems tolerably clear, however, that the Applicant’s actions, in promulgating much of that publicity and proffering the public justifications that she did of her conduct, gives rise to or exacerbates the ‘material risk of damage to an employers interests’ referred to by the Full Bench in Farquharson v Qantas Airways Ltd. 26
[42] The Applicant claimed not to have read the Respondent’s Code of Conduct but acknowledges that it was readily available to her. 27 In my view it is reasonable to expect that, in her role as Unit Supervisor, she should be familiar with the Code and its requirements.
[43] Among other things the Code provides that “Employees and volunteers acting on behalf of Community Connections are expected to act in the best interests of Community Connections ….” It goes on to provide that it is a breach of the Code to “provid[e] information or remarks, formally or informally, serving to undermine the reputation of Community Connections.” In a separate section the Code states that: “[e]very Community Connections employee is required to comply with our Code of Conduct and any other lawful directive. If it appears that you have not complied with our Code, you may be asked to explain your actions and you may face disciplinary action by Community Connections ….” 28
[44] In my view the Applicant breached the Code of Conduct in that she did not act in the best interests of Community Connections both by permitting alcohol consumption by minors at the party and by her subsequent interactions with the media. In addition, the justification of her conduct provided to the media 29 was undoubtedly capable of ‘serving to undermine the reputation of Community Connections’.
[45] Based upon the above I am of the view that there was a valid reason for the termination of the Applicant’s employment. That reason was the failure by the Applicant to heed the conduct requirements placed upon her generally by the Respondent’s Code of Conduct and the consequential damage to both her own credibility as a Unit Supervisor and, potentially, the Respondent’s credibility and reputation in endeavouring to accomplish its social service agenda.
[46] It is not entirely necessary given my findings above but I am further of the view that to the extent that mutual trust and confidence could be properly said to be an implied term of the Applicant’s contract of employment with the Respondent then the Applicant, by her actions, breached that trust and confidence and in doing so further validly grounded the termination of her employment.
Procedural Fairness
[47] That the Respondent observed procedural fairness to the Applicant in the lead up to and including the termination of the Applicant’s employment was not a matter of contest between the parties.
[48] The Applicant was notified of the reason for the termination prior to being terminated and was provided with ample opportunity to respond to that reason. The Applicant did so with assistance and support from the ASU. A consideration of events in the light of subsections 387(b) (c) and (d) of the Act provides no basis for any adverse findings in relation to the Respondent’s adherence to principles of procedural fairness.
[49] The termination of the Applicant’s employment did not result from unsatisfactory performance within the meaning of ss.387(e) of the Act. For present purposes ss.387(e) is irrelevant.
[50] The size of the Respondent’s enterprise and the availability or otherwise of human resource management expertise are not issues which significantly or adversely affected either the Applicant or the Respondent during the relevant period up to and including the termination of the Applicant’s employment. Subsections 387(f) and (g) of the Act require, accordingly, no further consideration.
Other Matters
[51] Subsection 387(h) of the Act requires FWA to take into account “any other matters” it considers relevant to the termination.
[52] There were various references in witness statements tendered to FWA relating to prior alleged unsatisfactory performance and/or conduct by the Applicant during the course of her employment. Much of this material was vigorously contested by the Applicant. I was advised by counsel for the Respondent during the course of proceedings, that none of this material was relied upon by the Respondent as the reason or part of the reason for the termination of the Applicant’s employment. During the course of proceedings I came to the view that the material was not relevant to issues that FWA was required to consider in reaching a determination of this matter. The parties were duly apprised of that view. 30 Accordingly those issues relating to past performances or conduct have had no role in reaching the determination herein.
[53] It appears that the Applicant has been a generally capable employee of the Respondent for a significant period of time. If nothing else, her promotion to Unit Supervisor provides testimony to this. She appeared to me to be a generally decent, albeit somewhat misguided, individual who failed to see the glaring contradictions that arose from her conduct and subsequent justifications of it when such conduct is considered in the light of her duties to her employer.
[54] It is true she has paid a high price for her conduct. She has lost her job. The price however cannot and should not be considered too high. In considering the matter in the light of a ‘fair go all around’ as required by ss.381(2) of the Act I am of the view that a proper consideration of all of the evidence and circumstances surrounding the termination of the Applicant’s employment leads to the appropriate conclusion that the termination was neither unjust nor unreasonable. Nor was it, in the circumstances, harsh, given the position the Applicant held and the reasonable expectations that could be and were properly held of her.
[55] Accordingly, the termination of the Applicant was not unfair. The Applicant’s application is dismissed.
[56] An order giving effect to this decision will issue as PR992696.
DEPUTY PRESIDENT
Appearances:
L Court of Australian Municipal, Administrative, Clerical and Services Union for R Duncan
G McKeown of counsel for Community Connections Victoria Ltd
Hearing details:
2009.
Warrnambool:
December 17.
1 Exhibit R1 PN4
2 Exhibit A1 PN10
3 Ibid PN14 and Transcript PN211-212
4 Exhibit R3 Attachment SP1
5 Ibid
6 Transcript PN295-297
7 Exhibit R2 PN13, Exhibit R3 PN13 also Transcript PN734-744
8 Transcript PN349-362
9 Exhibit R2 Attachment TB1
10 Exhibit R3 Attachment SP2
11 Transcript PN335 and PN339
12 Transcript PN416
13 Transcript PN415
14 Exhibit R3 Attachment SP5
15 For an extended summary and discussion of authorities see Rose v Telstra Corporation Limited [AIRC] Ross VP, 4 December 1998 (Print Q9292)
16 See Appendix B (Position Description) to Applicant’s Outline of Submissions at Arbitration
17 Transcript PN313-322
18 Transcript PN120-121, 232, 299 and 307-310
19 Transcript PN301-322
20 Transcript PN534-536
21 Transcript PN190
22 Anthony Farquharson v Qantas Airways Ltd AIRC (Lawler VP, O’Callaghan SDP, Raffaelli C) 10 August 2006 [PR971685] PN22
23 Transcript PN320-322
24 Transcript PN276-280
25 Transcript PN335
26 Farquharson v Qantas Airways Ltd op cit
27 Transcript PN179-180 also Exhibit A1 PN24
28 Exhibit R3, Attachment SP6
29 Transcript PN299
30 Transcript PN264-265
Printed by authority of the Commonwealth Government Printer
<Price code C, PR992659>
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