Sonia Hughes v NTSCORP Limited

[2015] FWC 6045

[2015] FWC 6045

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sonia Hughes
v
NTSCORP Limited
(U2014/12897)

VICE PRESIDENT LAWLER SYDNEY, 2 SEPTEMBER 2015

Application for relief from unfair dismissal.

[1] This is an application for an unfair dismissal remedy. The Applicant commenced employment with the Respondent on 5 November 2012 was dismissed for misconduct on 18 September 2014.

[2] The Respondent is the sole publicly funded native title representative body in New South Wales. It has a number of divisions including the Strategic Development division and the Legal division. The Applicant was employed as a Senior Lands and Notification Officer in the Strategic Development division.

[3] The Applicant had extensive relevant to the work of the Respondent. She had worked in the New South Wales Land Titles office (now known as Land and Property Information (LPI)) between 1986 and 1988. She graduated in Arts and Law in 2001 and was admitted to practice in 2002. From that time she was employed in the legal division of Land Titles Office in the position of Lawyer. From 2008 she was employed in the position of Manager, Status Branch within Crown Lands. On 2 November 2012 the Applicant was made redundant from that position as part of a significant restructuring.

[4] As a result of her long experience in the area, the Applicant had developed significant expertise and experience in the investigation of land titles.

[5] It is clear that the Applicant considered that her specialised skills in the investigation of land titles could more usefully be utilised doing work ordinarily done by the Legal division, especially in relation to the analysis of so-called “Extinguishment Tables”. When a native title claim is lodged, the State prepares an “Extinguishment Table” listing the titles covered by the claim and whether, in the opinion of the State, native title has been extinguished.

[6] It seems that the Respondent’s usual practice was to brief out such work. The Applicant agitated for some of that work to be performed in-house by herself.

[7] The Respondent agreed for the Applicant to undertake “Extinguishment Table” work in relation to at least two different native title claims.

[8] It is clear that the Applicant devoted long hours to performing that work. She complained about the excessive work being allocated by the Legal division. The Applicant’s managers became concerned at the long hours she was working. Eventually the Applicant was forbidden from working overtime or on weekends without express prior approval.

[9] Over this period the Applicant’s relations with other staff deteriorated. There were complaints about personal behaviours affecting others and a particular tension developed between the Applicant and the head of the Legal division, Ms Mishka Holt.

[10] The statement of the Applicant’s manager, Ms Hariharan, demonstrates that, from the manager’s perspective, the Applicant was a difficult employee. I reject the attacks on Ms Hariharan. I am satisfied that Ms Hariharan acted reasonably and in good faith in relation to the Applicant, even though the Applicant does not perceive that to be so.

[11] Counsel for the Respondent took the Applicant to a range of documents in which she had expressed trenchant criticism of Ms Hariharan, Ms Holt and the Legal division. The Applicant had made a bullying complaint against Ms Holt.

[12] In about August 2014 the Respondent advertised a vacancy for a lawyer in the Legal division. The Applicant submitted an application. She was not granted an interview but did not discover this fact until 15 September 2014 when she opened and read an email sent to staff asking them to keep noise to a minimum while the interviews were proceeding.

[13] It is common ground that Mr Tonna was the Applicant’s closest friend in the workplace, with the two of them regularly having coffee together. Mr Tonna’s statement records:

“When I received the all-staff email, almost immediately Sonia, who I believe had also received the email at the time, stood up and said words to the effect:

‘Fuck NTSCORP. They don’t treat me as a lawyer. I’m not going to do any more of the project tables. Mishka Holt – she’ll get hers.’

The words directed at Mishka Holt were very aggressive and caused me a great deal of concern as to Mishka’s safety.”

[14] Mr Tonna was sufficiently concerned by the tone and content of the Applicant’s outburst that he reported his concerns to management. There was no suggestion that Mr Tonna had any motive to make a false report.

[15] Ms Holt was heavily pregnant at the time. The CEO, Ms Rotumah, was sufficiently concerned to instruct Ms Holt to leave the workplace and work from home.

[16] The Applicant clearly regarded the actions of Mr Tonna as amounting to personal treachery. She left two telephone messages on Mr Tonna’s phone, which were played during the hearing. In those messages the Applicant threatened retribution to Mr Tonna in the form of defamation proceedings, emphasising the cost that Mr Tonna would be exposed to. The threats were menacing and unpleasant.

[17] I am satisfied that Mr Tonna acted in good faith and because of a genuine concern that he had arising from the incident. It was inevitably difficult for Mr Tonna to be required to give evidence of these matters in relation to someone whom he had regarded as a friend. No motive was put to Mr Tonna to suggest that his evidence was fabricated. Having seen Mr Tonna give his evidence, I am satisfied that he gave truthful evidence and I accept it.

[18] Counsel for the Applicant focussed on differences in the words attributed to the Applicant by Mr Tonna at different points. I am not persuaded that these differences should result in a rejection of Mr Tonna’s evidence or a finding that an outburst directed in a threatening way against Ms Holt did not occur. It is unremarkable that such differences should occur. Each of Mr Tonna’s accounts were to the same effect and all contained the critical element that the Applicant stated that she would “get” Ms Holt.

[19] The CEO took charge of the matter and sought legal advice on the action the Respondent should take. An experienced industrial relations solicitor advised that the Applicant’s conduct may justify termination of her employment but emphasised the importance of according the Applicant procedural fairness.

[20] The Applicant was invited to attend a disciplinary interview and provide her explanation in relation to the incident. The Applicant refused to participate in that process, asserting that a decision to terminate her had already been made.

[21] I accept the evidence of the CEO that no such decision had been made and that the disciplinary interview represented a genuine opportunity for the Applicant to be given an explanation that may have resulted in a decision not to terminate her employment.

[22] Faced with the Applicant’s refusal to participate, the CEO sought further advice from the solicitor and made a decision to terminate the Applicant’s employment.

[23] I am required to consider each of the matters specified in s.387.

(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);

[24] I am satisfied that the Applicant’s outburst and threat directed at Ms Holt, in combination with her threats to Mr Tonna, constituted a valid reason for dismissal in the sense of a reason that was ‘sound, defensible and well-founded’. However, that is not the end of the matter. It is well established that there can be a valid reason for the dismissal of the dismissal can nevertheless be harsh, unjust or unreasonable. I consider that issue below.

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

[25] The Applicant was notified of that reason.

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

[26] The Applicant was given an opportunity to respond to that reason.

(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;

[27] There was no unreasonable refusal by the employer to allow the Applicant to have a support person present to assist at any discussions relating to the dismissal.

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

[28] The dismissal did not relate to unsatisfactory performance, but rather was based on an allegation of misconduct. That said, performance issues formed part of the background in which the decision to terminate was made. I am satisfied that those performance issues had been addressed reasonably and appropriately by the Applicant’s supervisor.

(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;

[29] The Respondent has about 25 employees and employed a Human Resources manager: Ms Anna Vo. I am satisfied that fair and proper procedures were followed in effecting the dismissal and I reject the attacks on Ms Vo, who impressed me as a truthful witness who had performed her role in a conscientious and professional fashion.

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

[30] With regard to other relevant matters, I accept that:

(a) the Applicant suffers from dyslexia in a fashion that seriously impedes her capacity to obtain work as a legal practitioner;

(b) the Applicant has been prevented from obtaining an unrestricted practising certificate because her supervising solicitor has passed away;

(c) the Applicant has developed a highly specialised skills in the area of land title for which there are relatively few jobs; and

(d) those matters, in combination with the Applicants age, give rise to a significant possibility that the Applicant will have real difficulty finding alternative employment.

[31] The Applicant had been employed by the Respondent for less than two years. This is not a case where long service counts as a material factor.

[32] The Applicant had made complaints of bullying and harassment. Much of the hearing was consumed with evidence going to those matters. While I have no doubt that the Applicant genuinely believed that she had been bullied and harassed, I found the evidence of the Respondent’s witnesses persuasive in relation to those matters. In particular, I am satisfied that Ms Hariharan went out of her way to deal fairly with the Applicant. The cross-examination of the Applicant was also effective in this regard.

[33] I found this a difficult matter to decide. Counsel for the Applicant advanced forceful arguments in support of a finding that the dismissal was harsh even if the Applicant’s conduct amounted to a valid reason for the dismissal. Given the Applicant’s genuinely held belief that she was not being treated fairly by the Respondent, an outburst on learning that she had not even been afforded an interview for the position in the Legal division might not, of itself, have justified dismissal, particularly if the Applicant had apologised or shown some remorse or regret. Instead, the Applicant made threats to Mr Tonna and showed no interest in engaging with management over the incident.

[34] In determining whether a dismissal was harsh, unjust or unreasonable it is necessary to accord a “fair go all round” and not simply to view the matter from the perspective of the employee. When that approach is adopted I am unable to find that the dismissal was harsh, unjust or unreasonable. Mr Tonna was right to bring his concerns to the attention of management. Given the history of antipathy between the Applicant and Ms Holt, it was right of the Respondent to take Mr Tonna’s concerns seriously. It was reasonable for the Respondent to regard the threats made to Mr Tonna as a material aggravating factor. It was reasonable and proper for the Respondent to seek expert advice and act in accordance with that advice. When the Applicant refused to participate in a disciplinary interview, it was reasonable for the Respondent to act in accordance with expert advice and terminate her employment. The Applicant’s own actions had made an ongoing employment relationship untenable for the Respondent.

[35] Given the findings I have made, the application must be dismissed.

VICE PRESIDENT

Appearances:

Mr O Fagir of counsel for the Applicant

Mr B Miles of counsel for the Respondent

Hearing details:

2015

Sydney

January 28, 29 and 30

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