Shaleen Wharton v Regional Development Australia

[2021] FWC 6392

[2021] FWC 6392

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 Unfair Dismissal

Shaleen Wharton
v
Regional Development Australia
(U2021/5944)

DEPUTY PRESIDENT LAKE BRISBANE, 19 NOVEMBER 2021

Application for an unfair dismissal remedy – where the Respondent is a small business – where the Applicant was summarily dismissed for serious misconduct – where dismissal was in accordance with the Small Business Fair Dismissal Code – jurisdictional objection upheld – application dismissed

[1] Shaleen Wharton contends that she was unfairly dismissed by Regional Development Australia (the Respondent), for whom she had worked since 2012. She seeks an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act).

[2] By way of background, Ms Wharton was employed by the Respondent as a Regional Development Support Officer. During the course of her employment, Ms Wharton worked on an initiative developed under the auspices of the Respondent entity, known as the R2R Project.

[3] In June 2021, the Respondent became concerned that Ms Wharton, and the consultants engaged to develop the project, were purporting to assert ownership to the rights and intellectual property of the R2R Project. The Respondent conducted an investigation into same and put the allegations to Ms Wharton at a meeting on 28 June 2021. At the conclusion of that meeting the Respondent told the Applicant that she had until 5pm 29 June 2021 to provide any further response she wished to the allegations prior to a further meeting on 30 June 2021. No material having been received by the prescribed time, the Respondent elected to terminate Ms Wharton’s employment (effective immediately) having found that the allegations of serious misconduct had been substantiated. Ms Wharton was informed immediately on the evening of 29 June 2021. Ms Wharton then lodged this application on 8 July 2021.

[4] The Respondent objected to the application on the basis that it was a small business employer and had complied with the Small Business Fair Dismissal Code (the Code). Directions were issued for the filing of material and a hearing was listed for 13 October 2021.

Legal representation

[5] Ms Wharton sought to be represented by John Shepley of counsel. The Respondent, who was to be represented by Robin Roberts, an Associate Professor at Griffith University who was appearing in her volunteer capacity as the Deputy Chair of the Respondent, opposed the granting of representation. Both parties were offered the opportunity to provide written submissions with respect to representation.

[6] Granting permission to be represented under s.596 requires the existence of one of the criteria set out in s.596(2), though their mere presence does not immediately invoke the right to representation. Rather, the Commission must use “an evaluative judgment akin to the exercise of discretion” 1 and consider “whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.”2

[7] Mr Shepley submitted, on Ms Wharton’s behalf, that representation ought be allowed because the Respondent had not previously taken issue with Mr Shepley’s involvement in these proceedings on Ms Wharton’s behalf and because of the education disparity between Ms Wharton and Ms Roberts, who is an Associate Professor from Griffith University, though he acknowledges her qualifications are not in industrial relations. Mr Shepley also submitted, that the hearing would be conducted more efficiently if he were allowed to represent Ms Wharton.

[8] The Respondent opposed the granting of permission on the basis that the Respondent was not in a position to obtain representation itself for these proceedings and would be represented by Ms Roberts who was acting in the capacity of a volunteer and who had no qualifications in law or industrial relations. Further, the Respondent noted that Mr Shepley was not completely divorced from the proceedings given that it was alleged that he was to conduct conversations on behalf of Ms Wharton and the consultants with respect to a potentially rebranded R2R Project.

[9] Having considered the submissions made by both parties, I ultimately denied the Applicant’s request for representation at the hearing, but allowed Mr Shepley to be present to assist Ms Wharton in the conduct of her case. Further, I indicated that Mr Shepley could assist Ms Wharton in preparing her written submissions, including the closing written submissions that both parties provided on 1 November 2021.

[10] As to the closing submissions, my Chambers received an email from Mr Shepley on 15 November 2021 requesting that my attention be drawn to the use by Ms Roberts of Ms Cheryl- Anne Laird, a partner at Mazars, in the drafting of her closing submissions, despite not having requested permission to do so. While it would have been best practice to seek permission prior, for the same reasons as I gave Mr Shepley permission to assist Ms Wharton, to the extent that I am required to say that I have done so, I also allow the Respondent permission to rely on the closing written submissions allegedly prepared with the benefit of legal advice.

[11] In addition to providing her own evidence at the hearing, Ms Wharton also called Margaret Blade (the Respondent’s CEO), Andrea Anderson (Founder and Director of Your Marketing Machines), Clinton Begg (Director of CB5 Management) and John Gillespie. Ms Roberts gave evidence and represented the Respondent.

Preliminary matters

[12] Section 396 of the Act requires that I am satisfied of four matters before considering the merits of the Applicant’s application. Neither party disputed and I am satisfied, that the Applicant made her application within the 21-day period required by s.394(2) of the Act, that she was a person protected from unfair dismissal (as she earned less than the high-income threshold) and that her dismissal was not a case of genuine redundancy. The final matter in s.396 that I am required to consider is whether the Respondent is a small business and, if it is, whether in dismissing Ms Wharton, it complied with the Code.

[13] A small business employer is one with less than 15 employees. 3 The fact that the Respondent had less than 15 employees was not disputed by Ms Wharton. I am satisfied that the Respondent was a small business employer and that the Code applied. I must consider whether it was complied with.

[14] Section 396 of the Act requires consideration, prior to the merits of the matter, of whether the dismissal was consistent with the Code. The Code, which applies to dismissals after 1 July 2009, states:

“Summary Dismissal

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

Other Dismissal

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

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

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

Procedural Matters

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

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

Respondent’s Evidence and Submissions

[15] In short, the Respondent contends that it had a valid reason to summarily dismiss Ms Wharton from her employment and that it did so in accordance with the Code. The valid reason, the Respondent says, was the intention of Ms Wharton to take the R2R Program from the auspices of the Respondent to derive personal benefit and the steps taken to act upon that intention. The Respondent submits that an appropriate process was used leading up to the decision to terminate Ms Wharton’s employment and that she was afforded natural justice. The evidence relied upon by the Respondent was has been summarised below.

[16] The Respondent noted that, as was stated in Grigonis v Adelaide Coffee Company Pty Ltd, the Code imposes a lesser standard on small businesses:

“In establishing the Fair Dismissal Code and the preliminary (jurisdictional) point associated with unfair dismissals in that context, the evident intention of Parliament was to establish a particular benchmark against which small business unfair dismissals would be initially considered. The question of fairness is to be assessed having regard to a modified set of considerations that recognise the more informal nature and circumstances of small business and the needs of employees.”  4

[17] In any event, the Respondent submits that it was reasonable for Ms Roberts to form the view based on the evidence before her that Ms Wharton’s conduct was sufficiently serious to justify immediate dismissal. Further, the Respondent asserts that, as is required by the Code, it has established that there was a reasonable basis for the belief held in that investigations were undertaken and the Applicant was given natural justice. 5 As would ordinarily be expected, the allegations were put to Ms Wharton and she was offered time to respond.6

[18] The Respondent submits that it carried out a reasonable investigation and reached a reasonable conclusion in all the circumstances, as required in circumstances such as this. 7 Further, those circumstances cannot be divorced from the limited experience and resources of the small business concerned, which is run by a voluntary committee. There are three employees, including a CEO, who would normally be involved in such matters. However, Ms Blade was not independent of the conduct in question and, in any event, was on personal/sick leave at the relevant time, so it fell to Ms Roberts to resolve. Ms Roberts is an academic with no experience in matters such as this. That was why she sought legal advice at the time regarding how best to deal with the conduct that had been discovered.

[19] The Respondent submits that the evidence clearly confirms a plan by Ms Wharton to leave the Respondent and to take the R2R Program, any funding which may have been obtained in relation to it, as well as relevant contacts with her. This is clearly, in the Respondent’s submission, inconsistent with the continuation of her employment contract. Any continuation of the contract – even for a short time – would have resulted in increased risk to the Respondent as it would have allowed Ms Wharton continued access to resources and legitimacy to continue to act for the Respondent against its interests.

[20] It is worth turning to the specific evidence led by the Respondent.

[21] On 23 December 2021, the Applicant signed an update to her employment contract which included a clause which stated that:

“Any and all ideas, concepts, techniques, studies, research, findings, presentations, inventions, discoveries, designs, improvements or items capable of protection by letters patent, design registration, copyright or any other form of protection made or discovered by the Employee during their Employment (either alone or with any other person), whether during or outside of office hours, will belong absolutely to the Employer and the Employee agrees to execute any document required to give effect to this.”

[22] In cross examination, Ms Wharton confirmed she had signed the contract update and understood what this clause said. She claimed that she did not understand what Intellectual Property (IP) was in a legal sense. The Respondent submits that assertion should be disregarded as both disingenuous and irrelevant. Ms Wharton, on 4 June 2021, in her email and in numerous other pieces of written correspondence, has used the term IP in context and within the generally accepted meaning of the phrase.

[23] On 2 June 2021, the Respondent’s CEO commenced a period of sick leave. Consequently, Ms Roberts’ stated that it was necessary for members of the Board, including herself, to become more involved in the daily business of the organisation.

[24] On 4 June 2021, Ms Wharton sent an email to the Chair of the Board, in which she asserted in relation to the R2R proposal:

“The project team consists of myself, John, Clinton (Mackay) and Andrea Anderson (former Advisor) with all of us being instrumental in the development of the program and who also own the IP rights to the program.” (emphasis added)

[25] Also in that email, Ms Wharton identified the purpose of invoices which had been provided to the Respondent by three consultants in relation to the development of the R2R Project. Relevantly, the Applicant wrote:

“Red Office Chairs Invoice relates to Andrea Anderson to identify platform parameters to run the program which was a requirement to ensure that the platform functionality would suit our requirements especially the reporting functionality which is vital to report back to the Government. Red Office Chairs is the name of her company….

John’s work including myself, Andrea and Clinton were to assist with the develop module content, client assessment, Business Audit, client journey, the over arching parameters required so that we had a viable proposition for pitching the R2R proposal with the Queensland Government as a program ready for implementation which is now sitting at the level of Director-General and Deputy Director-General for consideration and with whom I am in closed contact with…

You will also come across some airfare reimbursements for Clinton, which was also paid due to attending in person with myself and Marg to the various meetings we had with the high-level officials in the Government.”

[26] The Respondent formed the view that this email was of concern and warranted further investigation. As there was a conflict of interest regarding the CEO, the Chair of the Board tasked Ms Roberts (as Deputy Chair) with investigating and taking action in respect of the matter. She sought legal advice and assistance, which involved a review of documentation held by the Respondent in relation to the R2R project and monies expended for its development to three external consultants, Ms Anderson, Mr Begg and Mr Gillespie.

[27] On 28 June 2021, Ms Roberts requested Ms Wharton attend a meeting later that afternoon to discuss the R2R Project. Ms Wharton was advised that she could bring a support person.

[28] At that meeting, which was taped and later transcribed, Ms Wharton was asked a series of questions regarding the R2R project. The Respondent relies on that transcript in its entirety but notes the following as the most poignant extracts (my emphasis):

“Robin Roberts:

May 2020, presented to committee. Okay. So, if it was presented in May 2020, which of course I've got that copy, when it was then revised for February 2021, I guess the question they might want to know is, well, why wasn't the revision presented? Was there someone who told you that you didn't need to, it could just go as is?

Shaleen Wharton:

No, it was- … It was basically just because, I was retaking the ownership of it. The IP of it, as such…No, no. ... taking back is probably the wrong word… It's just with regards to the ownership of it… Because, you know, there was four of us that created it, and ... and initiated it. And we did all of the hard work to ... to make sure that it wasn't something that is already out there. There's nothing like it at the ... you know, federal, state, or local, there's nothing like that out there at all. So it was just about reconfirming the fact that, you know, our initial conversation was around ... where would it be a perfect fit for?... And that was with RDA Brisbane. And if it was preceding, I'd still say RDA Brisbane.

Robin Roberts:

Mm. Mm. Okay. Number five, in your email to Lisa, dated 4th of June, you stated that you and the consultants, John, Clinton, and Andrea Anderson, former advisor, own the RP. As the proposal has been developed on RDAB time and money, why do you believe that you own the IP?

Shaleen Wharton:

The ... the only aspect of RDA Brisbane is me … And yeah, I may have done it in ... in RDA Brisbane time, but a lot of the conversations were out of hours. Um, and ... and you know, we sort of ...because that was the only free time I had basically, was after hours… But ... but yeah, so I do ... I do admit there was a ... a couple of times that it was during the day, you know, during my work day.

Robin Roberts:

Mm. Okay. Um, number 10. You developed the proposal on RDA time and money. However, when we met last week, you said you would go it alone if the committee did not support your proposal. What did you mean by that?

Shaleen Wharton:

I meant that hopefully there was an option that we could ... we could look at dropping it in another entity, if RDA Brisbane didn't feel that it was something that they wanted to undertake.

Robin Roberts:

Okay. It appears you have already decided to go it alone. If we compare the current version of the proposal, dated February 21, with an earlier version from May last year, you can see some stark differences between the two versions.

Shaleen Wharton:

Yeah… It was basically to ... Okay, so ... so when we created it, we ... we felt that RDA Brisbane could run with it….and then we all came together and back when I told you then and this was created.

Robin Roberts:

Right. And, "We all came together," by that, you mean Clinton, Andrea-

Shaleen Wharton:

And John. Yeah.

Robin Roberts:

and yourself. Okay. Right. So it says here, can you please explain why you removed the RDAB letterhead, capability statement, and Margret's name and contact details?

Shaleen Wharton:

Well, again, it was ... the initial one was put in with RDA Brisbane backing and supporting… So that version there was without RDA Brisbane, involved in it… And to be quite honest, we, you know, we just, we all believed that it was our creation, and therefore we had a right to it, as such. So, that was the motive behind it.

Robin Roberts:

Okay. Why did you remove your RDA contact details and replace them with your personal phone number?

Shaleen Wharton:

I don't know. No real thought was given to it actually….To be honest, I ... I just- …Well- Well, yeah, probably, because I felt that, you know, by taking RDA Brisbane out, my ... my details became irrelevant. Yeah.”

[29] At the conclusion of the meeting on 28 June 2021, Ms Roberts told the Applicant that:

“From your statements today and the evidence we have before us, it appears you have willfully acted unethically and dishonestly in breach of the express and implied duties you owe to [the Respondent] under your employment contract. If these allegations are substantiated, your actions constitute serious misconduct and will result in disciplinary action against you, up to and including immediate termination of your employment. Before any decision is made, we will give you a further 24 hours to provide us with anything else you would like us to consider in response to these allegations. You will be now stood ...stood down now on full pay and asked to leave the office immediately.”

[30] The Respondent was then told she had until 5pm the following day to provide any additional material that she wished by email, “before we meet with you again at the [the Respondent] office at 10:30AM on Wednesday, the 30th of June, where we will provide you with our decision”.

[31] At 4.52 pm that day, the Ms Wharton emailed Ms Roberts essentially requesting a copy of the questions asked in the meeting and the transcript of the discussion. Ms Roberts’ response advised that a copy of the recording would be provided that evening and that the Respondent was willing to speak directly with the legal representative. The recording of the meeting was provided as promised.

[32] Ms Wharton provided no additional information by 5.00pm on 29 June 2021. Nor did her legal representative seek to make contact with Ms Roberts.

[33] A lockdown was initiated in Brisbane so the parties could not, in any event, meet in person to deliver the outcome. Given no additional information had been provided and thus there was no need – in the Respondent’s mind – to discuss the matter further, the decision to terminate Ms Wharton’s employment was made and she was advised by email that evening. Ms Roberts, in her evidence, also stated that given the nature of Ms Wharton’s conduct, there would have been substantial risk in delaying the termination given Ms Wharton would have continued to have access to the Respondent’s system. The termination letter indicated that the Respondent was satisfied that the allegations of serious misconduct had been substantiated.

[34] The Respondent further submits that there is no doubt that the R2R project was developed in the course of Ms Wharton’s employment with the Respondent. Indeed, during the interview on 28 June 2021, Ms Wharton conceded that she did work on the project during work hours and sometimes had conversations about it outside of hours. She made similar statements in cross-examination. In response to a question about whether the R2R Project had been developed under the auspices of the Respondent, Ms Wharton conceded that it had been, but said that she and the consultants involved viewed it as their creation.

[35] In cross-examination, Ms Blade similarly acknowledged that the R2R Project was at all times presented under the auspice of the Respondent. Similarly, when Mr Gillespie was asked whether the R2R Proposal was a program belonging to the Respondent, he responded “Yes”.

[36] Ms Wharton was charged with providing regular updates to the Respondent’s board regarding the work that had been performed in respect of the R2R Project. She accepted that the board also “approved certain payments in the redevelopment and the researching of it and stuff like that”. Each of the consultants acceped that they had conducted work in respect of the R2R Project and had been paid for it by the Respondent.

[37] The Respondent submits that the May 2020 document entitled “Roadmap to Revitalisation (R2R) Program” puts the matter beyond doubt given it expressly states at the top of the document that it is a “New Project by RDA Brisbane”. Further it goes on to describe the Respondent’s capability to deliver the project and provides the Respondent’s CEO as the direct contact.

[38] The Respondent asserts Ms Wharton had clearly asserted that she and others owned the IP in the R2R Project and had done so on numerous occasions, including in the extracts above. Additionally, in the meeting on 28 June 2021, Ms Wharton stated:

“…you know, there was four of us that created it, and ... and initiated it. And we did all of the hard work to ... to make sure that it wasn't something that is already out there. There's nothing like it at the... you know, federal, state, or local, there's nothing like that out there at all. So it was just about reconfirming the fact that, you know, our initial conversation was around ... where would it be a perfect fit for?”

[39] Also during the meeting on 28 June 2021, when she was asked about the two versions of the proposal, Ms Wharton stated that the first document had been prepared with the idea that the Respondent would present the Project, while the subsequent document was a version that envisaged proceeding without the Respondent’s involvement.

[40] Ms Wharton was asked again about these documents in cross examination. She was expressly asked whether she created a second version of the program in which she deleted the Respondent’s branding and contact details and substituted her own personal contact details, to which she responded, “yes”. Ms Wharton was asked whether she agreed that anyone who saw the second version would have no idea that the R2R program was the Respondent’s program, to which she responded, “yes”. Ms Wharton was asked whether she agreed that anyone who saw that version would assume that she and the other contact people, were the providers of the program, not the Respondent. Ms Wharton said, “yes, it appears that way”.

[41] Further, in a text message sent on 9:11am, Ms Wharton wrote, “Myself and the other people who were involved in the creation for R2R own the IP... We had previously agreed that RDAB was a good place for it … After yesterday we are looking at the funding drop to go to any entity … So hopefully we still can run out R2R Rosie thanks for your support.” In cross-examination, Ms Wharton was taken through other pieces of correspondence that she had written which also indicate that she and the other consultants purported to hold the IP.

[42] The Respondent further understood that Ms Wharton not only asserted ownership of the R2R Project, but had a plan in place to take the program (and funding) away from the Respondent to another organisation which she was to be a part of. In cross-examination, Ms Wharton accepted that were multiple pieces of correspondence which evidenced same, but said, “nothing eventuated, nothing happened”. The Respondent submits that regardless of whether the plan came to fruition or not, it was clear Ms Wharton and others had gone as far as researching options for the new organisation they would create and discussing potential names for it.

[43] In particular, the Respondent points to a text message sent by Ms Wharton which stated, “I am forming an organisation with John G, me and Marg Do you want to be involved in this. Take the people out of [the Respondent] the contacts come with us”. In another text message to someone else, Ms Wharton wrote, “Myself and the other people who were involved in the creation for R2R own the IP We had previously agreed that [the Respondent] was a good place for it After yesterday we are looking at the funding drop to go to any entity So hopefully we still can run out R2R”. In an email sent by Ms Wharton on 25 June 2021, she wrote, “We can still look at having the funding dropped outside of the [the Respondent] – it will take a few more meetings before we get to contract stage…At that time John Shepley will meet with the minister and discuss [the Respondent] and that the team who is behind this is ready to move to where the funding gets dropped.”

[44] Though at the time the allegations were first put to her Ms Wharton did not accept she had done anything wrong, in cross-examination she conceded that trying to take the R2R Project for her own use and benefit was a breach of her employment contract.

[45] As to the Applicant’s credit, the Respondent noted that the Applicant asserted on multiple occasions that she held a management position at the Respondent. However, the Respondent submits that is not the case. Rather, the Applicant was always employed as the support officer, and within that role had project management responsibilities for one project, but was never considered to be in a management position with the Respondent’s enterprise. Although not directly relevant to the decision to terminate the employment of the Applicant, the Respondent submits it is relevant to the reliability of this witness.

Applicant’s Material

[46] The Applicant submits that she has been unfairly dismissed. She provided written submissions, her own statement (as well as statements of the other individuals set out above) and gave evidence at the hearing. She also provide written closing submissions which summarise her key contentions as follows:

“1. Dr Roberts has provided no evidence she was authorised by Ms Wharton’s employer … [the Respondent] to terminate her employment and accordingly the termination is a nullity. Secondly, Dr Roberts at all times misconstrued the nature of the R2R project as being a federally funded program for the federal government.

2. Thirdly, she misconstrued that [the Respondent] had funded the development of the program. Fourthly, the meeting on the 28th did not provide any details of the questions to be responded to by the 30th. Fifthly, there was no meeting on the 30th to discuss the matter. Sixthly, any investigation was inadequate as only the applicant was the only person interviewed.

3. Seventhly, the Respondent provided no evidence they held any intellectual property in the R2R program capable of theft. Eighthly, the Applicant was summarily dismissed by someone who had only been connected with the organisation for 2 months whereas she had been employed close to 10 years, without blemish.

4. Although the remedy issue by the respondent could not include reinstatement, we press the Commission to provide 5 weeks’ notice and the maximum compensation of 26 weeks because of the summary dismissal and it’s consequent effects where there was no theft of anything!”

[47] Ms Wharton states that, in respect of the due process not being afforded, she was only provided with three hours notice of the meeting on 28 June 2021. She was not provided with any questions ahead of time, though she was provided the opportunity to bring a support person. She says that by failing to give her prior notice of the questions she was deprived of the opportunity to obtain legal advice or prepare answers to the questions. She says such an opportunity was particularly important given substantial issues such as IP (a legal concept that would not be known to most lay persons) was the subject of the meeting. Ms Wharton states that the false nature of this meeting is clear from the transcript of the meeting which shows that it was not about finding out more about the R2R Project (as Ms Wharton had thought) but rather was about allegations of more nefarious matters involving a concerted effort by people to take the program outside of the Respondent and make a profit.

[48] She states that the Respondent did not heed her request to provide a transcript of the meeting that evening, but rather, only provided a recording. She also requested a copy of the agenda for the proposed meeting on 30 June 2021 but that was never provided. Ms Wharton asserts – and it is not disputed – that never occurred because the need for it was superseded by the termination letter provided by 29 June 2021. That letter stated, “you have admitted to theft of …[the Respondent]’s intellectual property”. Ms Wharton submits that, as was discovered during cross-examination and examination-in-chief, there was no such admission nor was there any possible finding by the Commission that there was effectively a theft.

[49] As to the allegations made against her, Ms Wharton states that there was no definitive plan to set up a new organisation as alleged by the Respondent. Ms Wharton asserts that it is clear from the email transactions between herself and the other consultants (which were tendered) were very much at a preliminary stage and were dependent upon State Government funding and the Respondent’s ultimately attitude regarding the completion of the Project.

[50] Further, Ms Wharton states that to her knowledge no formal meeting of the Respondent’s Committee was convened to give Ms Roberts the authority to undertake this investigation or terminate her services. Similarly, in terms of the investigation conducted, Ms Wharton points out that no statements were sought from others, including Ms Blade or the consultants. On that basis, she asserts that the material available to Ms Roberts was insufficient to a warrant a finding of serious misconduct warranting dismissal.

[51] Ms Wharton further submits that Ms Roberts failed to deliver any credible details in respect to any of the intellectual property as to whether there was legal advice as to who it may be owned by or whether there was any intellectual property. Further, Ms Wharton contends, the evidence of Ms Blade and others suggested the nature of the regional economic development work is the sharing of ideas and the fact is that no-one would be asserting ownership of intellectual property if properly advised.

Consideration

[52] The reasons given by the Respondent for dismissing Ms Wharton were breaches of the express and implied duties she owed to the Respondent in her employment contract, the duty she owed to act in the best interests of the Respondent and the duty under the Code of Conduct to be open, honest, and accountable and to act in good faith.

[53] Ms Wharton might be correct in saying that she had not admitted to “theft” of the Respondent’s intellectual property, as the termination letter suggests. However, the evidence clearly demonstrates that she had admitted developing a plan (with the relevant consultants) by which they intended to take the R2R Project out of the Respondent’s organisation. It should be noted that there was a caveat placed on that plan by some of those involved to the effect that they would only do so if the Respondent did not proceed with it. That does not have any material affect on the present matter, which revolves solely around Ms Wharton. In the Respondent’s mind at the time of dismissal, it seems Ms Wharton’s admission with respect of this plan was akin to admitting to theft (or planned theft) of the IP in the R2R Project.

[54] Additionally, the Respondent had before it a version of the R2R Project proposal created by Ms Wharton that removed any reference to the Respondent and inserted her personal details as a contact. This was done without the Respondent’s knowledge or consent. Even Ms Wharton admitted in cross-examination that if anyone outside of the organisation had seen the second version of the proposal, they would have no idea that the R2R Project was the Respondent’s initiative. Indeed, on any reasonable view, that was the precise reason for Ms Wharton’s removal of all references to the Respondent.

[55] Ms Wharton had also indicated in various written communications that she and the consultants believed they held the IP for the R2R Project and had a “right” to proceed with it without the Respondent. The fact that plan did not eventuate (perhaps because the Respondent promptly terminated Ms Wharton’s employment), does not minimise the seriousness of her misconduct. If the plan had come to fruition, Ms Wharton and others would have derived a benefit from a project that had been developed during the course of her employed and deprived the Respondent of same. It follows that Ms Wharton’s actions destroyed all trust and confidence that her employer once had in her and warranted summary dismissal. Plainly, to keep Ms Wharton employed any longer put the Respondent’s interests at risk.

[56] Ms Wharton has made a number of submissions about Ms Roberts’ alleged misconceptions about the funding of the R2R Project by various levels of government. Such submissions do not appear relevant to the present issue. Ultimately, it is clear from the evidence that the R2R Project was developed under the umbrella of the Respondent and it had funded Ms Wharton (through her employment) and the consultants (by their invoices) for their contributions to the project.

[57] Similarly, Ms Wharton has not provided any evidence to indicate that Ms Roberts was not the appropriate person to conduct the investigation and deal with her dismissal. Ms Roberts’ evidence was that she was asked to do so in place of the CEO who was not independent of the issue to ensure an appropriate investigation and who, in any event, was on sick/personal leave. In the absence of any cogent evidence to the contrary, I see no need to question Mr Roberts’ conduct of the matter.

[58] In short, I am satisfied based on the evidence before me that Ms Wharton’s actions constituted serious misconduct and made the continuation of her employment unfeasible. Taking steps, no matter how preliminary Ms Wharton asserts they were, to derive personal benefit from a program that had been developed under the auspices of the Respondent and for which the Respondent had clearly invested its resources amounts to serious misconduct of the kind that warrants summary dismissal. Not only is this conduct dishonest and deceptive, Ms Wharton did not – until she was under cross-examination– evince any indication that she understood that what she had done (and intended to do) was improper. Consequently, it was not unreasonable for the Respondent to conclude that it could not trust that she would comply with her employment obligations in future.

[59] I am satisfied that at the time of Ms Wharton’s dismissal, the Respondent believed that her conduct was sufficiently serious to justify immediate dismissal. Further, I am satisfied based on the evidence before me, that belief was reasonable.

[60] I accept that the process may have been imperfect, insofar as the Respondent had indicated that a further decision would take place on 30 June 2021 but terminated her employment prior to that. This, however, must be understood in context. Ms Wharton had been instructed to provide anything further she wished to add in response to the allegations by 5pm on 29 June 2021. Her legal representatives were also invited to communicate with the Respondent directly. Neither Ms Wharton nor her legal representative availed themselves of that opportunity by 5pm on 29 June 2021 and so, on the basis of the information before it, the Respondent decided to terminate Ms Wharton’s employment. Ms Roberts had, at the conclusion of the meeting on 28 June 2021, warned Ms Wharton that on the basis of the evidence presently before her, that was a likely possibility. It should also be noted that Brisbane went into lockdown on that day so a physical meeting would not have been possible. In any event, I accept that the Respondent had a reasonable belief that Ms Wharton had engaged in serious misconduct and so was justified in summarily dismissing her on 29 June 2021.

[61] Accordingly, I find that Ms Wharton was dismissed pursuant to the Code. The Respondent’s jurisdictional objection is upheld.

[62] I order that Ms Wharton’s application be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618.

 2   Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender[2021] FWCFB 268 [48].

 3   Fair Work Act 2009 (Cth) s.23.

 4   [2011] FWA 1586 [58].

 5   Harely v Rosecrest Asset Pty Ltd T/A Can Do International[2011] FWA 3922 [8]-[9].

 6   Harely v Rosecrest Asset Pty Ltd T/A Can Do International[2011] FWA 3922 [9].

 7   As was required in John Pinawin T/A RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359 [30].