Renesse v Melbourne City Mission
[1994] IRCA 62
•14 Oct 1994
CATCHWORDS
INDUSTRIAL LAW - Termination of employment - complaint of unlawful termination of employment in contravention of Division 3 of Part VIA of the Industrial Relations Act - whether termination of employee’s employment for a valid reason - whether employee given an opportunity to respond to allegations - procedural fairness - reinstatement.
Industrial Relations Act 1988, ss. 170DC
Byrne & Frew v Australian Airlines Ltd (1994) 120 ALR 274
ROSEANNE RENESSE V MELBOURNE CITY MISSION
VI 645 of 1994
Before: Parkinson JR
Place: Melbourne
Date: 5 October 1994
INDUSTRIAL RELATION COURT
OF AUSTRALIA VI 645 of 1994
VICTORIA DISTRICT REGISTRY
B E T W E E N:
ROSEANNE RENESSE
Applicant
A N D
MELBOURNE CITY MISSION
Respondent
MINUTES OF ORDER
5 October 1994 PARKINSON JR
THE COURT ORDERS THAT:
The respondent reinstate the applicant to the position in which she was employed immediately before the termination of her employment and that the reinstatement take effect on and from the date of this order.
The respondent pay to the applicant the amount of $6,941.88, being the amount of remuneration lost by the applicant as a result of the termination.
The period between the date of the termination and the date of the reinstatement be treated as continuous employment of the applicant by the respondent for all purposes.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA VI 645 of 1994
VICTORIA DISTRICT REGISTRY
B E T W E E N:
ROSEANNE RENESSE
Applicant
A N D
MELBOURNE CITY MISSION
Respondent
Reasons for Judgment
5 October 1994 PARKINSON JR
In this matter the applicant seeks an order for reinstatement together with remuneration for the period between the date of the termination of her employment and the date of reinstatement. The proceeding occupied six sitting days and the following witnesses were called:
Roseanne Renesse - the applicant
Alison Carson - the applicant's co-worker
Kim Paine - the applicant's co-worker
Marwan Farha - the applicant's co-worker
Pam McCulloch - Regional Manager, Child Youth and Family Services, Melbourne City Mission, Northern Region
Christine Ellerton - Manager of Residential Services,
Melbourne City Mission
Howard Huntly - Regional Manager for Aged and Disability Services
Cheryl Miller - Manager, Case Management Unit, Melbourne City Mission.
In view of the complicated manner in which the facts arise or are alleged to arise in these proceedings, it is appropriate for me to set out in some detail the background to the termination of the applicant's employment.
Background
The respondent, Melbourne City Mission, operates a number of children's services including various residential services for young people who require emergency or temporary care. Often these young people are persons who are the subject of care and protection orders made pursuant to the Children and Young Persons Act 1989 (Vic). It is clear from the evidence which has been placed before the court that these young people are often very vulnerable and require sensitive and sympathetic care and control.
The applicant was employed by Melbourne City Mission in July 1993 in a residential shelter which originally operated as a siblings project, designed to keep siblings in care together. In January 1994 the nature of the program changed to become one of temporary emergency care. At that time there was also a restructuring and change in management of the program, including frequent changes to management at the supervisory level.
Despite the change in name of the program and its structure, the applicant remained a 24-hour senior child care worker. Her substantive employment, which was part-time, involved 24 hour attendance at the unit for five days each fortnight. However, there is evidence that the applicant often worked significantly more hours than those for which she was originally engaged.
In the course of her employment the applicant was responsible for the care and protection of the children in the unit. She was also responsible for the supervision of a day worker, known as an 8-hour worker. At the unit to which the applicant was attached there were two 24-hour workers, each rostered alternately, and one 8-hour worker.
The children who were placed in the unit were the subject of protection orders, and were in the temporary guardianship of protective workers employed by Health and Community Services. There was therefore a requirement for liaison and consultation with those protective workers, and any direction as to care matters, such as the level of supervision required of any individual child, came from the Community Services workers.
On 30th March, 1994 two children in the unit in which the applicant was located made a complaint in relation to another worker at that unit. That complaint was investigated by management at Melbourne City Mission. It is unnecessary to go into the detail of the allegations made by the children except to say that they alleged that physical discipline was used by the worker against another child. The complaint was investigated by Melbourne City Mission management and it was concluded that there was no substance to the complaint.
At the time of the investigation the applicant was instructed to assure the child complainants that they would not be penalised as a result of making the complaint. It appears that the children were concerned that they would not be believed, and that they would somehow be punished for making the complaint. As a result of this concern one child had caused herself physical harm.
There was a dispute between the parties as to the acceptability of the steps taken by the applicant to reassure the children, however it is clear from the evidence that she did speak to the children in this regard. The acceptability of those steps formed part of the stated reasons for the termination and I will deal with those reasons and their validity or otherwise later in this decision.
It is apparent from the evidence that the applicant, along with a number of co-workers from both her workplace and other Melbourne City Mission units operating under this program, had concerns about the nature of the procedures adopted in relation to the conduct of the investigation. In particular, they felt there was a discrepancy between the procedures adopted in the present case and procedures which had been adopted in prior incidents of allegations of physical discipline of children in care.
It is appropriate here to make reference to the legal obligations which are imposed upon carers of children both pursuant to the Children and Young Persons Act, and arising out of the general law of negligence. There was no dispute on the evidence or in the submissions of counsel in these proceedings as to the existence of personal obligations of carers to their charges, nor was it disputed that the applicant along with her co-workers and management bore such a responsibility as a result of employment in this field. It was this responsibility, and a formal grievance procedure in the Health Services Union of Australia (Victoria Private Sector) Interim Award 1993 ("the Award") upon which the applicant relied to found the basis for her entitlement to express her concerns as to action taken by management in relation to the children's complaint .
The evidence is that the staff members, including the applicant, raised their concerns in relation to the investigation with the coordinator of the program, Ms. Christine Ellerton, and with Ms. Katrina Stephens, the applicant's immediate supervisor. This occurred at a staff meeting on 6th April, 1994. At that meeting it was clear that management took the view that the investigation and its procedures had been appropriate. At that meeting the applicant indicated that she did not believe that proper procedures had been adopted.
Subsequent to the meeting the applicant and a number of co-workers took further steps in relation to their concerns. Their first step was to speak to their former supervisor Ms. Cheryl Miller, and to seek advice as to how to deal with the matter. This discussion took place on 6th April, 1994. There was a further attempt on the following day to discuss the issue with this person which resulted in the applicant and her colleagues being told by the Regional Manager of the service to pursue their concerns according to proper channels, and not to approach their former supervisor. That this exchange occurred was not contested, however the context of the discussions and their purport was the subject of some disagreement between the parties. This approach to the former supervisor also formed one of the stated reasons for the termination. It was on this occasion that the incident which gave rise to the allegation set out in paragraph 1.10 of exhibit W8 was alleged to have occurred.
It was not disputed that there was a discussion as to the procedures to be adopted in relation to the concerns that the applicant and her co-workers had. The particular procedure under discussion was that which arose as of right pursuant to the Award covering the employment of the applicant and her co-workers. That Award provided for a specific process to be followed by employees where they had a grievance arising in the workplace.
Pursuant to the Award clause, the applicant and her co-workers took steps to invoke the grievance procedure by lodging a grievance with their supervisor, Ms. Stephens.
Two meetings occurred subsequently between management and staff in relation to the matters which were raised pursuant to the grievance procedure. These meetings took place on 14th April, 1994 and 21st April, 1994. An official of the applicant's union was present at both of those meetings. Despite there being a dispute between the parties as to what occurred at those meetings, neither side called the union official to give evidence in these proceedings.
Although there was some dispute as to the knowledge of management as to the matters which were the subject of the grievance, it is clear that by the occasion of the second meeting on 21st April, 1994 the grievance as to the manner in which the investigation into the children's allegations had been conducted was clearly on the table. No resolution was reached as to that issue.
During the course of the meeting on 21st April, the Regional Manager of the Service, Ms. McCulloch, informed the meeting of management's right to institute disciplinary procedures against the employees at the grievance meeting. There is no suggestion in any of the evidence in these proceedings that the issue of disciplinary action of any kind had been considered or raised prior to that meeting. Certainly no steps had been taken pursuant to the Award procedure in relation to any alleged disciplinary matters against any of the staff members concerned prior to the grievances being raised by the staff.
Subsequent to the meeting on 22nd April, 1994, Ms. McCulloch wrote to the union in response to the grievance issues raised by the staff at the meeting on the 21st April. That letter is exhibit W7. In that letter Ms. McCulloch addressed the matters which had been raised in relation to the staff grievance and in the course of doing so raised a range of allegations of misconduct against the staff involved in the grievance procedure. The conclusion of that letter announces the decision to dismiss the applicant and take disciplinary action against other employees.
On 29th April, 1994 disciplinary action was instituted by management against all of the staff who were involved in initiating the grievance procedure meeting held pursuant to the Award. A final warning was issued in respect of all staff who participated in the grievance notification process (exhibit W13), except for the applicant. She was issued with a document headed “Advice of Dismissal” (exhibit W8). That document was under cover of a letter dated 29th April, 1994 headed "Re: Meeting to discuss the Management Decision that Your Services with Melbourne City Mission Should be Terminated." A meeting was held with the applicant and her union representative on 13th May, 1994 at which meeting there was no alteration to the view of management that the dismissal should occur.
The fact that the institution of the grievance procedures was coextensive with the institution of disciplinary procedures against staff who participated in that grievance procedure cannot be ignored. Whilst the evidence of Ms. McCulloch was that during the course of investigating the grievance complaint the allegations made in the dismissal notices had come to light and were consequently acted upon, I do not accept this as a credible explanation for the institution of disciplinary procedures in these circumstances. On the evidence before me I am inclined to the view that the disciplinary process adopted by Melbourne City Mission was instituted directly as a result of the initiation of the grievance procedure by the staff, and that grounds for disciplinary action were collected by management subsequent to 21st of April, 1994.
This is particularly so when the substance of the disciplinary procedures relate in the main to matters and incidents which were the subject of the grievance procedure initiated by the staff, and in particular the applicant.
Exhibit W7 identifies in clear terms the nature of this relationship, and indeed in some respects allegations contained in the dismissal notice received by the applicant are identical to allegations made in this letter.
It is open to this court to conclude that there was some relationship between the two matters not merely related to the inadvertent 'discovery' of information by management during the period, and I do so find.
This finding is sufficient for me to decide that the employer in this case had no valid reason related to the conduct or capacity of the applicant, or to the organisational requirements of the respondent for the termination, without any need to go to the substance of the allegations and their truth or otherwise. However, in view of the nature of the allegations made, I propose to deal with each of those allegations in turn according to the evidence which was properly before me in these proceedings.
Allegations relied upon by the respondent
The advice of dismissal set out a number of allegations which were relied upon by the employer to constitute the grounds for the applicant's dismissal. The applicant was informed that she was to be given an opportunity to show cause as to why she should not be dismissed.
Exhibit W8, the letter of termination, set out a number of allegations
against the applicant. Those allegations were relied upon by the respondent as examples of continuing abuse of children. Whilst this allegation was not made in Exhibit W8, it was made in the affidavit material filed by Ms. McCulloch on behalf of the respondent. At paragraph 9 of her affidavit (exhibit R3), Ms. McCulloch sets out the reason for the termination as being:
"the dismissal of the applicant was to take effect immediately and
was on the grounds of gross misconduct, breach of instructions and continuing abuse of children entrusted to her care."
Both Ms. McCulloch and Ms. Ellerton gave evidence that the applicant, as a result of the conduct which was alleged against her in exhibit W8, was guilty of abuse of children. In evidence, Ms. McCulloch defined the term "abuse of children” as follows:
"the abuse of the children is actually both emotional and psychological abuse. Its not physical abuse of the children". (transcript, page 147.25.)
The issue for this court is first to determine whether on the evidence the respondent had a valid reason or reasons for the termination of the employment. To determine this question the court is required to look at the specific allegations made against the applicant and determine whether or not they were true.
This approach has been the subject of consideration by me in a recent unreported decision of this court. (See: AWU-FIME Amalgamated Union & Joseph Patrick Farrell v Conagra Wool Pty Ltd (unreported, 15 September 1994 at p. 10-12).
Counsel for the respondent, Mr. Rahilly, submitted that in determining the question of whether the employer in this case had a valid reason for the termination of the applicant's employment "the focus rests on the contents and evidence given in respect of exhibits W8 and W9 in these proceedings" (T.361.5). I agree that is the appropriate approach in this matter. I turn now to consider this evidence.
Exhibit W8
Exhibit W8 is a document relied upon by the respondent as constituting the allegations and, further, as an adequate particularisation of the allegations against the applicant such as to give her adequate opportunity to consider those matters and respond to each of them. In my view there are a number of difficulties with this approach to exhibit W8. These difficulties are as follows:
Nowhere in this document is the term "child abuse" used by the
respondent, notwithstanding that the allegation is relied upon as one basis for the dismissal, and formed part of the reasons for the
dismissal.The document uses language which on its face is imprecise, and the meaning of which cannot be ascertained from the document itself.
That in relation to many of the allegations contained therein, there
is no example of the incident or conduct said to found the
allegation.The document is in its form and content duplicitous.
As to point 4 there was no dispute as to this fact by the respondent's witnesses who all agreed that most of the allegations contained therein related in some way to each other.
Having regard to the above matters, it is my view that, when analysed, exhibit W8 contained the following allegations, which I now proceed to consider:
That the applicant contacted the unit whilst not on duty and
had three hour telephone conversations with the children (Item
1.1 of exhibit W8).
The applicant denied this allegation. The respondent's witnesses
informed the court that, in formulating this allegation, reliance had been placed upon advice received from another employee. The person who allegedly made such allegation was not called to give evidence. There was no evidence in the form of observation notes from the unit which identified even the fact of such a conversation taking place, much less that the applicant was a participant in the conversation. When this matter was discussed with the applicant she denied the allegation to management and asked that recourse be had to the unit observation notes. Ms. Ellerton gave evidence that the unit observation notes did not contain any record of the alleged conversation. However she said this was explained by the fact that there was a general failure amongst staff at that unit to adequately keep such notes. This explanation exposes some difficulty for the respondent because, notwithstanding that the
person making the allegation failed to record such observation in
accordance with what was apparently the appropriate practice, the
respondent relies upon the untested allegation of that same
person. The hearsay evidence of Ms. Ellerton as to what she was
told occurred is, in this circumstance, of no assistance to the court.
Ms. McCulloch was unable to specify just when it was alleged that the three hour telephone conversations took place, and she
conceded that one allegation put to the applicant was false, having
regard to the identity of the person concerned. There is no reliable evidence before this court which would support a finding that there was on balance any substance to this allegation. Therefore I find this allegation unproven.
That the applicant attended the Regional Office on the pretext
of collecting the Allima Unit petty cash for the express
purpose of soliciting the involvement of her previous line
manager in an industrial dispute when in fact she was not on
duty. (Items 1.2, 1.11, 2.1.1. of exhibit W8.)
The applicant denied this allegation. A similar allegation was also
made against the staff who were initially disciplined by way of
a final warning (exhibit W13) but were not dismissed. In the event, all disciplinary action arising out of this allegation against other staff was withdrawn on 13th May, 1994. Leaving that discrepancy in treatment aside, I am not satisfied that the allegation is true having regard to the evidence in this case. The evidence of the applicant and Ms. Carson was that they attended at the Brunswick office on the first occasion to speak to their former supervisor whom they trusted. On the following day they were in attendance for administrative purposes associated with their employment, and spoke to their former supervisor again but in little detail. The evidence of the applicant was that she informed the manager and director that she was present at the office to collect petty cash for a camp. This was corroborated
by Ms.Carson (T. 59), and also acknowledged as the reason
given by Ms. McCulloch (T. 97) and Mr. Huntly (T. 343). Ms.
Miller gave evidence as to the substance of the conversation which
took place on that occasion, but no evidence was given by her
which would tend to suggest that the substantive reason for the
presence of the applicant at the office on that day was other than to attend to administrative matters. The contents of item 1.2 purport to impute to the applicant an ulterior motive in her attendance at the office on that day. However, aside from the fact that a conversation took place or was attempted in relation to the matter which was later to become the subject of a formal staff grievance, there is no evidence in these proceedings that the applicant had the motive attributed to her in 1.2 of exhibit W8.
It is far from clear how it is alleged that the grievance issues in any
event constituted an industrial dispute as opposed to a legitimate
expression of concern of a professional person charged with
various statutory responsibilities, nor why, even if the conduct
alleged were true, it is that it would constitute a disciplinary offence warranting action against the applicant, and in turn constitute any element of a valid reason for the termination of employment.
That the applicant colluded with children in her care to
manipulate management and to have a fellow worker
dismissed. (Items 1.3, 2.1.1, 2.1.2. of exhibit W8).
The applicant denied this allegation. Once again a similar
allegation was made against another staff member in the same
circumstances as set out in 2 above. It was put by Ms. McCulloch
and Ms. Ellerton that this conduct constituted abuse of children and that having regard to such extremely serious allegations the
applicant should not remain employed. This approach to the
applicant is inconsistent with that taken in respect of other
employees against whom the same allegation was made. This
aspect would be relevant to any consideration of whether the
termination was harsh, unjust and unreasonable, if such
consideration were necessary.
It became apparent in the proceedings that this allegation related to
the action taken by the applicant in relation to the questioning of
decisions of management in relation to the matters which were the
subject of the grievance procedure, and other matters, although these other matters were never specified. Other than the issue
of the complaint of the children, there is no other matter in
evidence in these proceedings in relation to this allegation.
On the material before this court there is no evidence that the
applicant conducted herself in the manner alleged in 1.3 of exhibit
W8. There is no evidence of collusion with any child or children in the unit either in relation to the manipulation of management or in relation to bringing about the dismissal of a fellow worker. Rather the evidence reveals that the issue being persistently raised by the applicant was the allegedly inconsistent approach adopted by the respondent in investigation of complaints of physical discipline by children in the unit. In submissions Mr Rahilly in part acknowledged that this was the case when at page 365 of transcript in dealing with the contents of 1.3 of exhibit W8 he said:
"And your honour may recall that what was put to the
applicant in these proceedings as to what was put to her on
the occasion of 13th May, was in part that the applicant had
challenged Ms. Ellerton's decision in relation to the
allegation by those two adolescents against Ms X (name withheld by the court) and that Ms. Ellerton had asked her
whether she had a problem with that decision to which the
applicant answered yes she did....So the allegation is
that she was somehow or other dealing with those two
adolescents in such a way that management of the organisation was being manipulated."
The evidence of Ms. McCulloch at pages 181-182 and 184-185 of the transcript was that the basis for the allegation in 1.3 of exhibit W8 was the questioning of a management decision at the
staff meeting of 6th April, 1994. Ms. Ellerton, at pages 278 -280 of the transcript, discussed the matters which constituted item 1.3. Aside from revealing that various matters had been discussed with
the applicant and others at meetings in relation to the handling of
various children, her evidence did not identify one incident of a specific allegation against the applicant in relation to item 1.3.
The evidence of the applicant in cross-examination in relation to
the grievance was that she had an understanding and belief as to
what was the appropriate procedure to be followed, and her
grievance was that this procedure had not been followed. At page
45 of the transcript the following exchange occurred:
" So, you thought that the way in which these matters would be
dealt with was that the community policing squad would be
brought in straight away did you?-- Yes your Honour, I was actually advised by Howard Huntly that the process was mandatory; he was my previous regional director."
This evidence of the applicant that she had been so informed was
not contradicted by any of the respondent’s witnesses although the
respondent’s witnesses gave evidence that the applicant and other
staff had subsequently been informed that this was not a mandatory process.
If the true nature of this allegation was that the applicant
communicated to the children her views as to the procedure which
should have been adopted, and it should be said that this was never
articulated either in any of the material tendered or in the evidence
of the respondent's witnesses, there was no evidence of such
conduct before this court. Nor was it put to the applicant in cross-
examination. I therefore find that there was no basis on the
evidence before this court for the allegation made at 1.3.
That the applicant attempted to manipulate management by using the children and their activities in the unit; that the applicant used children in her care for her own industrial ends against management; that the applicant used the deprivation of children as a weapon against management (items 1.4, 1.6, 2.1.1, and 2.1.3 of exhibit W8).
This item related to the applicant having sought additional
resources for special activities she had arranged for children at her
unit. The complaint of management was that with the extremely
limited budget available to the service any activities had to be
planned so as to remain in budget. The uncontested evidence
was that, when initially planning such events, the applicant had
done so with regard to the budget limitations, but that
unforseen staff absences had interfered with those plans and
last minute changes and thus additional resources were
required. Management treated the failure of the applicant to
forward plan for the unforseen as improper. The language used by
this charge however does not go to any failure to forward plan and
its effect upon the service delivery, but rather its effect upon
management, and once again uses language designed to impute a
motive or intention to the applicant rather than address any
actual instance of misconduct.
Whilst I am satisfied that the applicant did on a number of
occasions seek additional resources and that this was a source of
concern and frustration for the respondent, I am not satisfied that
this conduct constituted an attempt to manipulate management by
using children and their activities in the unit. I therefore find that
this allegation is not proved.
That the applicant was disloyal to her employer in regard to
attempts to co-opt Health and Community Service allocated workers to support her view regarding disciplinary procedure involving one of her peers. That the applicant used the children for her own industrial ends. (Items 1.5 and 2.1.1 of exhibit W8).
Once again this allegation relates to the matters arising out of the
grievance process instituted by the applicant and other staff. It was
put to the applicant in cross-examination that item 1.5 referred
to the applicant encouraging a Ms. J. Bastow, who was at that time a Health and Community Services worker, to adopt a view in relation to the allegation of physical discipline of a child in care. It was also put to the applicant that she engaged in similar conduct in relation to another Health and Community Services worker, Ms. Moore, by encouraging her to call the community policing squad in relation to the allegations. The applicant denied the allegations set out in 1.5, and the matters put to her in cross- examination said to constitute the basis for the allegation in 1.5. No evidence was called from those persons who it was said alleged the applicant acted in a particular manner. The evidence of the witnesses for the respondent about reports they had had from those persons was not able to be tested in any way by the applicant in these proceedings. Nor indeed was she ever given the opportunity to hear her accusers in relation to this matter. Further, the evidence of the respondent’s witnesses does not support the allegation made. Ms. Ellerton, at page 287 of the transcript, said in relation to item 1.5:"There were a couple of instances of, I'm just trying to think
of the correct wording to put it in, where Roseanne actively
solicited or didn't disencourage particular views presented
by the Health and Community Services workers, for instance there was a worker....and she...had a particular point of view about the circumstances surrounding the allegations by the children of abuse....She rang Roseanne, and Roseanne was unable to give me a good reason as to why she continued to support this person’s interference in the case.”
Ms. McCulloch's evidence was that the applicant was entitled to
discuss matters relating to the welfare of children in her care with
their protective workers. The distinction which she drew in this
circumstance was the raising of the issues with persons who
were not the allocated protective workers of the child concerned, and that Ms. Bastow had ceased to be the child’s allocated protective worker (See transcript page 199.5). The evidence in the proceeding was that Ms. Bastow had been the protective worker assigned to one of the children who made the complaint of abuse and that she had investigated that complaint by interviewing the child. At worst for the applicant Ms. Bastow ceased to be that child’s protective worker on the day that discussions occurred in relation to the incident. The evidence in these proceedings does not support this allegation and I find therefore that it is not proved.
That the applicant failed to comply with and deliberately flouted management direction for professional development training in regard to appropriate and safe work practices. (Item 1.6, 2.1.1, 2.1.5 of exhibit W8 and 1.13 to the extent that refers to case planning decisions.)
The evidence of Ms. Ellerton was that this matter related to matters which had already been raise in items 1.1. and 1.4.
That the applicant deliberately misinterpreted a management
directive to reassure children in her care that they were safe,
and in fact exacerbated their fears to suit her own ends. (Item 1.7 of exhibit W8).
It was put to the applicant in cross-examination that the conduct
referred to in 1.7 and 1.8 related to the same circumstances dealt
with in exhibit Confidential Document 1, which was an incident
report filed by the applicant. The incident report itself and the
content of the incident report are somehow said to identify a
deliberate misinterpretation of management’s directive to the
applicant, and to evidence an exacerbation of the children's fears.
Ms. Ellerton in cross-examination was unable to point to any
aspect of the document which constituted such conduct. She
acknowledged that there was nothing on the face of the document
which could be said to do so. Ms. McCulloch in cross-examination
conceded that there was nothing on the face of the exhibit
Confidential Document 1 which indicated that the applicant had
exacerbated the children's fears. She was also unable to remember
anything which did so. (transcript page 210.5 - 211.5) She later
advised the court that it was that which was not contained in the
report which constituted the abuse. (transcript page 240.20)
There was no evidence before me of any conduct on the part of the
applicant which could be relied upon to constitute the conduct
alleged by Item 1.7 of exhibit W8.
That the applicant failed to file a report in regard to the incident referred to in 7 above until instructed to do so. (Item 1.8 of exhibit W8).
The incident which was the subject of the incident report
in exhibit Confidential Document 1 occurred on 5th April, 1994 at
approximately 8.35 pm at night. The applicant as instructed by
management, spoke to the children. The applicant, completed an
incident report on 6th April, 1994. The evidence of the
respondent's witnesses in these proceedings was that all incident
reports which relate to a serious incident must be completed within
48 hours of the incident to enable them to be forwarded to Community Services Victoria. The incident report was completed
within that time frame. Notwithstanding that the applicant may well have been instructed to file the incident report, so little time
had elapsed between the time of the incident and the filing of the
report that in all fairness it was not reasonable to determine that
she had failed to file the incident report in the manner alleged. I am not satisfied that this allegation was proved.
That the applicant had engaged in unprofessional behaviour in
relation to a neighbour of the unit at which she worked. (Item
1.9 of exhibit W8).
The evidence of Ms Ellerton in relation to this matter was that on
1st April, 1994 there was an exchange between the applicant and a
neighbour in relation to the behaviour of the children in the unit.
This exchange was reported by the applicant to Ms. Ellerton on 2nd April, 1994. The applicant’s evidence is that she referred the neighbour to Ms. Ellerton. Ms. Ellerton agreed with this, although she said that she invited the applicant to refer the neighbour to her (T. 330.10). There is no suggestion in any of the evidence that at that point in time there was any concern or dissatisfaction with the applicant’s conduct at all. No action was taken in relation to this matter by management. About a week after the Easter break the neighbour telephoned Ms. Ellerton. The neighbour’s version of events has apparently been accepted by Ms. Ellerton as truth of the events, without any further discussion with the applicant. The matter was not raised again with the applicant until it formed one of the multiplicity of allegations made against her in exhibit
W8. The applicant in these proceedings denied the version of
events and the statement attributed to her by the neighbour. The
evidence is that Ms. McCulloch met with the neighbour concerned
in July 1994 some time after the dismissal. No direct evidence was called from the neighbour or any other staff member who may have been present at the alleged incident. In view of all of the above I am not satisfied that this allegation is proved.
That the applicant left a child in her care unsupervised in a
dangerous environment, namely in a motor vehicle which was
parked illegally in front of a fire-hydrant. (Items 1.10, 2.1.4, 2.2.1, 2.2.2 of exhibit W8.)
The evidence is that on 7th April, 1994 the applicant had in her
company one of the children from the unit who was absent from
school due to illness on that day. The child was 14 years of age.
The applicant attended at the respondent’s offices and, because the
child concerned wished to finish her cigarette, she waited outside
and did not accompany the applicant into the respondent's
premises. The respondent's evidence is that the applicant left the
child in the vehicle. The evidence of Ms. McCulloch is that she
concluded that the keys to the vehicle had also been left in the car
because she heard loud music coming from the vehicle and
concluded that it was the car radio. The vehicle was also observed by her to have been parked illegally in front of a fire-hydrant.
The applicant gave evidence that she had permission from the child's protective worker to leave the child unattended. Whilst I am
satisfied this is so, I do not think that this permission would extend
to leaving the child unattended in an unsafe situation. The question
therefore becomes whether or not this was the case. On the
evidence before me the only agreed fact is that the child was left
outside the respondent's premises and that she was left for five
minutes.
On balance, having regard to the evidence of Ms. McCulloch and Mr. Huntly as to what they observed, even though the latter was not clear as to the vehicle type involved, I am satisfied that the child was sitting in the vehicle at the time she was observed. I am unable however to find that the keys had been left in the vehicle and nor am I able to find that the applicant left the child in the vehicle as opposed to standing outside the respondent’s premises.
I do not think that the failure of either Mr. Huntly or Ms. McCulloch to intervene at the point of observation is determinative of the question as to the appropriateness or otherwise of the applicant’s conduct. I appreciate that the particular vulnerability of this child may well require extreme vigilance on the part of any carer and in this regard I am satisfied that the conduct of the applicant did not meet the standard required of her in relation to the performance of her duties. I am not satisfied however that this incident, being as it was a single isolated event, is sufficient ground on its own to form the basis of a valid reason for the termination of the applicant's employment.
That for the express purpose of frightening a staff member and
intimidating management, the applicant telephoned that staff member and threatened that there would be a group staff resignation. (Item 1.12 of exhibit W8).
The applicant in her evidence denied this allegation. On the
evidence of Ms. Ellerton the substance of the actual conduct
alleged against the applicant was:
" that there was a phone call to one of the workers in
the unit saying that - I think it was before the grievance meeting, it was before the grievance meeting, that if things weren't resolved that all the staff were going to resign and that worker was quite distressed about it....It was Ms. Renesse who made the phone-call." (T. 297.15)
The allegation was made as a result of information received by Ms.
Ellerton from the employee who allegedly received the phone call.
No evidence was called from that person and nor was any other
evidence put before this court to substantiate the truth of the
allegation that the phone call was made by the applicant. Further,
even if the call had been made, the evidence of Ellerton goes no way towards substantiating the allegation contained in 1.12 of exhibit W8 that the express purpose of the applicant was to frighten another employee and intimidate management. The hearsay evidence of Ms. Ellerton is merely that a call was made by the applicant, the content of which was that if things were not resolved all staff were going to resign, and that consequently the worker who received the call was distressed. This is not evidence of the allegation made against the applicant and, as earlier discussed, there is in any event no reliable evidence in these proceedings that this allegation is true. I am not satisfied that this allegation is made out.
PROCEDURAL FAIRNESS
Award Disciplinary Procedure
It is clear from the evidence that none of the above matters had been raised with the applicant as part of a disciplinary procedure at any stage prior to being reduced to writing in the letter constituting the Advice of Dismissal dated 30th April, 1994 (exhibit W8). This is notwithstanding that the provisions of the Award dealt with disciplinary procedures, including termination of employment.
The Award (exhibit W1) at clause 26 detailed procedures to be followed in relation to disciplinary matters. Those procedures include a warning process of some three steps, the third of which is a final warning.
None of these steps were taken by the respondent employer in respect of the applicant. The applicant was given no warnings in respect of unsatisfactory work performance, either written or oral, prior to the letter advising of the decision to dismiss her. On the evidence before me this was not a case where the conduct of the applicant was such as to justify summary dismissal for gross or wilful misconduct. The failure of the respondent to accord to the applicant the procedures which were specified in the Award constituted the termination of the employment as harsh, unjust and unreasonable.
Other procedural aspects
A substantial amount of time in these proceedings was spent upon the broad procedural aspect of the termination. It was said by the applicant that she was not accorded procedural fairness prior to her termination because, despite there being a meeting held for the purpose of enabling her to respond to the allegations against her, she was never actually heard in relation to the majority of allegations. That she was not heard and that most of the allegations were not the subject of specification by the respondent is not disputed. The respondent alleges that this is because the applicant's union representative terminated that aspect of the meeting to enable private discussions to take place between management and the union, at which discussions the applicant was not present. The applicant contends that the said meeting was terminated when the representative of the respondent, Ms. McCulloch, left the meeting. On balance I am satisfied that the discussion of these issues came to a halt because of the action of the union representative concerned. This however does not conclude the matter in so far as the question of procedural fairness is concerned. The applicant is the person to whom the procedural fairness must be accorded, not the union nor any other person who may be present to represent the interests of the applicant. There was scheduled a further meeting between the applicant, her union and the respondent for 22nd May 1994. On the day that meeting was scheduled, the respondent sent by facsimile to the union, a letter advising that it had reviewed the position and had made its final decision that the applicant's employment would be terminated. The meeting scheduled for that day did not proceed, and thus a further opportunity for the applicant to be heard was denied. In view of these matters I must necessarily conclude that the applicant was not accorded procedural fairness because she was never told with any specification just what conduct the broad allegations made in exhibit W8 related to, and she had no opportunity to respond to those allegations because to a large measure on the evidence before me, they had not been particularised and on no occasion was she actually heard in relation to all of the allegations. The matters to which she did respond, which were the first three enumerated allegations in exhibit W8, were not the subject of any further investigation by the respondent.
It was submitted on behalf of the respondent that the provisions of S170DC in some way operate to remove the requirement of procedural fairness being accorded to an employee. That is, if the basic requirements of S170DC are met by the respondent, then there is no necessity for according the same level of procedural fairness as might be required arising out a consideration of whether the termination was "harsh, unjust or unreasonable".
The question of the obligation to accord procedural fairness arising out of the use of the term "harsh, unjust or unreasonable" was considered by Gray J. in Byrne & Frew v Australian Airlines Ltd (1994) 120 ALR 274. At page 327 of that decision his Honour said:
“So far, the procedural aspects of a clause such as cl 11(a) have been seen as confined to the need for the employer to make a proper investigation of the facts and to consult with the employee about those facts and their possible consequences: see Gregory at 471 and 473; Wheeler at 306 and Bostik (No 1) at 34, in the judgment of Gray J. In my view, that analysis has been inadequate. The use of the word “unjust” in the clause is intended to import the requirements of natural justice or procedural fairness into the process of terminating employment.”
I have also had regard to the matters considered by his Honour as relevant to determining whether or not an applicant has been accorded procedural fairness. At page 328 his Honour said:
“In the circumstances of this case, that obligation translated into a number of specific steps which the respondent was obliged to take. First, it was obliged to conduct a reasonable investigation, to ascertain what view it should take of any circumstance which it might take into account in deciding to dismiss the appellants. Secondly, it was required to formulate what it alleged the appellants had done or failed to do. Thirdly, it was obliged to put the allegations of commission and omission to the appellants, and to give them a fair opportunity to be heard as to those allegations. Finally, it was obliged to give the appellants a fair opportunity to be heard on whether they should be dismissed, if they were to be regarded as guilty.”
Irrespective of whether the obligation arises merely as a result of S170DC of the Act or whether it arises because of the use of the term “harsh, unjust or unreasonable”, in this case the respondent has failed to accord procedural fairness to the applicant. Consequently, the termination of her employment was harsh, unjust and unreasonable.
REMEDY
Reinstatement
The applicant seeks reinstatement to the position she occupied prior to the termination of her employment or to a position on similar terms and conditions. She also seeks an order for payment of remuneration lost as a result of the termination of her employment. Having regard to the nature of the allegations made against the applicant and the industry within which she is qualified to seek employment, a remedy which involved less than reinstatement would not provide for a satisfactory remedy. Despite the applicant acknowledging that it may be difficult to return to work under the same management, she did not put this proposition any higher than that.
Ms. Ellerton, who would remain in a position of seniority and supervision of the applicant, has in her evidence indicated that the only difficulty she foresaw was one of supervision. No evidence was called which would suggest any difficulty which may exist with any direct supervisor or coordinator. Ms. McCulloch no longer occupies the position of Regional Manager, having taken up a different appointment with the respondent. Having regard to these factors, I am satisfied that the reinstatement of the applicant to her previous position is not impracticable and I will so order.
Remuneration lost by the applicant
I have had regard to the evidence in relation to the averaged earnings of the applicant over the months prior to the termination of her employment. In this case it is necessary to take this approach to establishing the remuneration lost by the applicant because, whilst she was substantively employed on a part-time basis, she in fact did work additional hours above those for which she was originally employed. There was no explanation put before the court as to the nature of those hours, how they were determined and what expectation the applicant could reasonably have had that the additional hours would continue into the future. In my view these are relevant considerations in determining the amount of the remuneration lost by the applicant. Much of the additional earnings appear to be overtime and relief shifts worked by the applicant.
Because these work patterns had continued over a reasonable period of time and were regular rather than intermittent in nature, I am satisfied that it is possible that the applicant’s earnings would have exceeded the amount attributable to her base part-time hours. However by what amount is difficult to determine. The evidence was that the applicant earned an average amount of $630.00 per week during the period 16th January, 1994 - 22nd May, 1994, however her base rate of pay was much less than this amount being approximately $315.54 per week.
Whilst I am satisfied there would have been some continuation of additional shifts or overtime, I am not satisfied that it would have remained at the same level as had occurred in the period referred to above. Therefore I have decided to order payment of remuneration lost in the sum of $ 6,941.88. This sum is calculated on the basis of $6,310.80 being 20 weeks of the base wage of $ 315.54. I have added to this amount an additional 10% in recognition of overtime which was likely to have been received during the period. These amounts are gross amounts.
I therefore make the following orders:
That the respondent reinstate the applicant to the position in which
she was employed immediately before the termination of her
employment and that the reinstatement take effect on and from the
date of this order.
That the respondent pay to the applicant the amount of $ 6,941.88,
being the amount of remuneration lost by the applicant as a result
of the termination.
That the period between the date of the termination and the date of
the reinstatement be treated as continuous employment of the
applicant by the respondent for all purposes.
I certify that this and the preceding thirty-two (32) pages
are a true copy of the reasons for judgment of Judicial
Registrar Parkinson.
Associate:
Dated: 5th October, 1994
Solicitors for the Applicant: Ryan Carlisle Thomas
Counsel for the Applicant: Mr. A. Watson
Solicitor appearing for the Respondent: Mr. M. Rahilly
Dates of hearing: 5, 6, 7, 13, 14, 15,
September 1994
Date of judgment: 5 October 1994
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