FEDERAL COURT OF AUSTRALIA
Hansen v Mt Martha Community Learning Centre Inc  FCA 1099
VID 703 of 2014
Date of judgment:
INDUSTRIAL LAW – Adverse action – Suspension and subsequent dismissal of employee – Employment covered by industrial instrument – Whether employee had role or responsibility under instrument – Employee had made complaint in relation to her employment two years previously – Whether adverse action taken because of making complaint.
INDUSTRIAL LAW – Workplace agreement – Disciplinary procedures – Right to “fair hearing” and “unbiased process of judgment” – Allegation of assault against employee – Independent investigation – Whether employee entitled to investigator’s documents – Whether employee denied fair hearing – Manager’s involvement in investigator’s recommendations – Manager exercised right to dismiss – Whether employee denied unbiased process of judgment.
INDUSTRIAL LAW – Workplace agreement – Annual leave loading – Payment on termination.
INDUSTRIAL LAW – Workplace agreement – Sick leave entitlement – Whether contravention of agreement if employer’s record of amount of sick leave entitlement accrued inaccurate.
INDUSTRIAL LAW – Termination of employment – Statutory right to period of notice – Exception where employee dismissed because of serious misconduct – Whether exception applied.
Associations Incorporation Act 1981 (Vic)
Fair Work Act 2009 (Cth) ss 12, 50, 117, 123, 340, 341, 550
Fair Work Regulations 2009 (Cth) reg 1.07
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Sch 3, item 2(1), 2(2)(c), 2(5)(b), Sch 16 item 2(2), Sch 16, item 16
Workplace Relations Act 1996 (Cth) ss 328, 331
The Contract of Employment, M Irving 2012, at pp 636-637, 640
Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 142 ALR 99
Elcom v Electrical Trades Union (1983) 5 IR 267
In re Dispute – Transfield Pty Ltd re Dismissal of Union Delegate  AR (NSW) 596
Laws v London Chronicle (Indicator Newspapers) Ltd  2 All ER 285
Melbourne Stadiums Ltd v Sautner (2015) 317 ALR 665
North v Television Corporation Ltd (1976) 11 ALR 599
Quinn v Australian Stevedoring Industry Authority (1960) 94 CAR 800
Rankin v Marine Power International Pty Ltd (2001) 107 IR 117
FAIR WORK DIVISION
Number of paragraphs:
Solicitor for the Applicant:
Martin Willoughby-Thomas Barrister & Solicitor
Counsel for the Respondents:
J R M Tracey
Solicitor for the Respondents:
Lander & Rogers
IN THE FEDERAL COURT OF AUSTRALIA
DATE OF ORDER:
THE COURT ORDERS THAT:
1. The parties file and serve brief written submissions with respect to the penalty, if any, that should be imposed on the first respondent in relation to its contravention of item 2(2) of Sch 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) constituted by its contravention of cll 26.8.2 and 26.8.3 of the Neighbourhood Houses and Learning Centres Workplace Agreement 2007, as follows:
(a) the applicant, within seven days,
(b) the first respondent, within a further seven days,
(c) the applicant in reply, if necessary, within a further three days.
2. Otherwise, the application be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 703 of 2014
MT MARTHA COMMUNITY LEARNING CENTRE INC
15 OCTOBER 2015
REASONS FOR JUDGMENT
1 The applicant, Jocelyn Hansen, was the coordinator of children’s services employed by the first respondent, Mt Martha Community Learning Centre Inc (“the respondent”) from 16 June 2009 until her summary dismissal from that employment on 16 September 2014. In this proceeding, she alleges that her dismissal was done in contravention of certain provisions of Pt 3-1 of the Fair Work Act 2009 (Cth) (“the FW Act”) and that the second respondent, the General Manager of the respondent, Kevin Murphy, was involved in those contraventions within the meaning of s 550 of the FW Act. The applicant further alleges that her dismissal amounted to wrongful termination under her contract of employment. She also makes other allegations against the respondent to which I shall come in due course.
2 The respondent is an incorporated association pursuant to the Associations Incorporation Act 1981 (Vic). It is a not-for-profit body providing a range of services which, broadly, fit into three main streams: (1) kindergarten and childcare services, (2) the services of a registered training organisation, where courses are conducted for which government funding is received, and (3) other courses, covering such things as languages, crafts and hobbies. The facts of the present case related to events within the first stream of services, kindergarten and childcare. A narrative outline of those facts must commence in May 2012.
3 The respondent’s operations were conducted in a heritage building with a central courtyard. The children’s centre occupied an arm of the building, and the courtyard was the playground for the children. On 17 May 2012, a homeless man entered the complex through another wing of the building and went into the playground. Melissa Dewhurst, a child care assistant responsible for occasional care for 0-5 year-olds, and who also helped out with the three year-old kindergarten group, was out in the playground with the children. She called the applicant about the intruder. The applicant approached him, and he gave her to believe that he wanted an alcoholic drink. The applicant told him that there was no alcohol there, and escorted him towards the door leading out of the courtyard. As the two of them were moving in that direction, a child of about 18 months of age stepped out of the sandpit and into the path of the intruder. He picked the child up. The applicant told him to give the child to her, to which he replied, “No, he’s mine.” The applicant repeated her instruction, and this time the intruder did as he was told. She told the intruder to leave, and he did so. Having ensured that the child was settled, the applicant rang Mr Murphy, and explained to him what had happened. In the course of that explanation, Mr Murphy said that he could hear the intruder, and terminated the conversation with the applicant.
4 The intruder having left the courtyard meant that he was back inside the building complex of which the centre was a part. From his office, Mr Murphy noticed someone in the corridor, and went to investigate. He found the intruder wandering around. He grabbed the intruder by the arm and, as he put it in his evidence, “exited” the intruder out a side door of the building. The intruder attempted to resist this, but Mr Murphy, using some force, succeeded in getting him out the door, then closed the door behind him. The intruder, now outside the door, smashed the glass window panel in the upper part of the door, cutting his hand in the process. Having been called by someone, the police arrived very promptly and, after some searching around, found the intruder and apprehended him.
5 Meanwhile, the applicant had to deal with her staff who were, she said in her evidence, in a state of shock, and she had to communicate with the mother of the child whom the intruder had picked up, and explain to her what had happened and assure her that all was well. Later on the same day, the police obtained statements from the applicant, Mr Murphy and some other staff at the centre. At one point while the police were present, Mr Murphy passed the applicant in the corridor and requested her to come and speak to him after the police had finished with her. She did not do so: at about 6:30 pm, Mr Murphy went to find the applicant, but the children’s centre, where the applicant was based, was locked and in darkness.
6 That night, the applicant (who did not know Mr Murphy’s home number) rang the president of the committee of management of the respondent, Vivienne Clarke, and reported to her on the incident involving the intruder. Ms Clarke rang Mr Murphy, and asked him to call the applicant. He did so and, in the conversation which followed, the applicant agreed to complete a report of the incident to the Department of Education and Early Childhood Development (“the department”).
7 The next morning, 18 May 2012, the applicant first set herself to writing a report about the incident for the parents, who she assumed would have heard about it. Writing that report was, she said, her “key priority”. Mr Murphy came to the children’s centre and an argumentative conversation ensued. In their evidence, each of the two protagonists sought to paint this conversation in terms which made the other appear the more unreasonable. For present purposes, it is sufficient to say that Mr Murphy asked the applicant about the report for the department. She told him that she would prepare it as soon as she had finished her report to the parents. That indication was not well-received by Mr Murphy, who proceeded to give the applicant an unambiguous direction to attend to the report for the department. The applicant thereupon, in Mr Murphy’s words, yelled that he should not tell her how to do her job, following which she went into her office and closed the door. Subject only to denying that she “yelled” that injunction, the applicant accepted that she did proceed in this way. Mr Murphy followed the applicant into the office and, according to the applicant, stood over the desk where she was seated, shook his finger at her and told her to get the report done, adding that it was “a lawful order”. According to Mr Murphy, he said to her, “I will take this up with you at a later stage.” According to the applicant’s own written report on this matter (see para 8 below), she yelled at Mr Murphy to get out of the office.
8 At 8:32 am on 22 May 2012, the applicant sent an email to Ms Clarke. Attached to it was a letter, dated 19 May 2012, in the following terms:
I am writing to express my lack of confidence in the General Manager, Mr Kevin Murphy.
I do not consider that he is providing staff with leadership or support.
My reasons for this are as follows:
1. We have not had a staff meeting this year. I attended the office last Wednesday for a meeting which I had been told would occur but Kevin was not available.
2. Kevin does not organize regular meetings with me. We only meet when I go to his office and ask if he is available.
3. I have requested assistance to check our budget figures but this still has not occurred.
4. My staff believe that Kevin does not know their names and say that he never acknowledges them when he sees them.
5. I asked if an annual report was required from Children’s Services for the Community One Inc. annual report. He said that he did not think this was necessary.
6. After the incident of the intruder on 17th May 2012, I have no confidence in his ability to adequately support his staff in difficult situations.
In 38 years as a professional educator and manager in children’s services I have had only 2 occasions when a Manager has spoken to me in a raised voice, with finger pointing in my face. Both occasions have been managers at Community One.
Please find attached reports of the 2 incidents, from my perspective.
The “2 incidents” referred to in the last line of this letter were the subject of two appendices to the letter. The first dealt with the intruder incident itself on 17 May, and referred to Mr Murphy only in passing. It did not contain any complaint, nor even reservation, about his conduct. The second dealt with the events of 18 May described in the previous paragraph.
9 In her email to Ms Clarke, the applicant requested “that this be placed on record”. She said that she had “no expectation of any specific action”. Notwithstanding that request, in an email to the other members of the committee at 4:48 pm on 23 May 2012, Ms Clarke said that the email would be tabled as correspondence at the next meeting. She added that she would absent herself from all discussions about the matter, since the applicant was her sister-in-law. When the matter was being discussed, another member of the committee, John King, would preside.
10 It appears that none of the emails referred to in the two previous paragraphs was sent or copied to Mr Murphy. At the time of the events referred to in the next paragraph, he was not aware of the applicant’s complaint to the committee.
11 On 23 May 2012, Mr Murphy telephoned the applicant, and left a message for her to call him back. In an email to her at 5:54 pm that day, he confirmed that he had done so, asked to have a “one on one meeting with you tomorrow sometime”, and requested her to let him know her availability. At 8:29 am on 24 May, the applicant informed Mr Murphy, by email, of the times that she was available that day. At 9:06 am, Mr Murphy responded, suggesting a meeting at 4:00 pm, but added that he had had second thoughts overnight, and he now proposed to have Karen Featherstone, the receptionist, join them in the meeting “to ensure some impartiality”. At 10:26 am the applicant sent another email, asking Mr Murphy to indicate what it was that he wanted to discuss. At 1:10 pm Mr Murphy replied that it related to “the issue that occurred last Friday” (ie on 18 May), adding that he needed to sit down with the applicant and identify his concerns, and to put in place “a process that maximises the chances of successfully resolving the concerns”. At 1:31 pm, the applicant responded that it was important to discuss “last Friday”, but stating that she was not comfortable having Ms Featherstone involved, as she worked closely with her and Mr Murphy was her manager. She said that it would be “more appropriate if it was someone objective, such as Christine the counsellor”.
12 At 1:50 pm on 24 May 2012, the applicant sent an email to Mr King. She attached what she described as “the recent correspondence” she had received from Mr Murphy. She said that she was “not comfortable with it”, and wondered if Mr King could give her some advice.
13 At 3:03 pm on 24 May 2012, Mr Murphy responded to the applicant’s most recent email to him that day (ie at 1:31 pm), asking her for some times that she would be available the following Monday, 28 May. He added that, as the engagement of Christine would incur costs, he needed “to justify these costs by making this more formal”. His email continued:
To Jo Hansen
I am now giving you prior notice of a formal disciplinary procedure to discuss serious concerns relating to your recent conduct.
• On Friday morning at around 9.00 am you refused a lawful directive from me to immediately notify DEECD.
• You displayed unacceptable behaviour by raising your voice and demanding I leave the Childcare centre.
• Both of these actions were in front of other staff members which was not appropriate.
• You went into your office and closed the door you then came out and refused to discuss the matter with me and continued to tell me to go away.
• I find this behaviour unacceptable as your General Manager.
You have a right to be represented.
The meeting is to discuss the concerns in more detail and you will have an opportunity to put your side before any further action will be taken.
After a further brief email from Mr Murphy about timing, at 3:47 pm the applicant responded that she would “take the opportunity to have formal legal representation at this meeting”.
14 At 4:10 pm on 24 May 2012, Mr Murphy sent a copy of all the emails referred to in paras 11-13 above to Ms Clarke and to Mr King. He said that the applicant had “escalated this issue to a legal level”. He said that, normally, it would be an operational matter, but that it had the “potential to flow over into the committee’s lap.” Recognising that there would be “conflicts of interest issues”, he asked if they were happy for him to handle the matter. Although it is not amongst the emails in the evidence, Mr Murphy said that he thought he received an email from Mr King fairly quickly, saying that he needed to speak with him (Murphy) and the applicant. He asked Mr Murphy to “hold back”.
15 At 4:14 pm on 24 May 2012, Mr King responded to the applicant’s email sent to him at 1:50 pm. He said that he would like talk both to the applicant and to Mr Murphy separately before he had any other meetings, and told her that he would be in touch the following day once he had worked out a time. It does not appear from the evidence whether, when he sent this email, Mr King (who did not give evidence) had read Mr Murphy’s email sent at 4:10 pm.
16 On 25 May, Mr King emailed the applicant with a request that she provide the best times to meet on the following Monday, 28 May. It does not appear from the evidence whether, or if so how, the applicant responded to that, but, at 2:49 pm on 28 May, Mr King asked the applicant to give him a couple of times when she would be available the following day, 29 May. In a return email sent at 4:48 pm, the applicant did so, but Mr King did not meet with her on 29 May. His next email to her (in this chain) was dated 7 June 2012, when he noted that Mr Murphy was away for a couple of weeks, and suggested that, on his return, the three of them should “sit down and go through the issues”, adding that it was his hope that all the issues would then be resolved.
17 Mr Murphy was indeed away: he took two weeks’ leave in the first half of June 2012. The applicant responded to Mr King’s email of 7 June on 11 June, saying that she had been in bed with the flu. She told Mr King that she had been advised that she should consider a Workcover claim of “workplace bullying” with respect to what she described as an “incident” with Mr Murphy on 18 May, and the subsequent formal disciplinary procedure. She said she was “surprised and disappointed” that Mr Murphy would have gone on two weeks’ leave without first resolving this disciplinary procedure. She asked Mr King whether the foreshadowed meeting would address Mr Murphy’s disciplinary notice only, or would include also “the broader issues” of her report to the committee.
18 Under cross-examination, the applicant accepted that, in the second half of June after Mr Murphy had returned from his leave, “it was just business as usual” between herself and him, that they “were communicating”, and that “everything seemed to be fine.” This may have been a statement of the outward indications of the working relationship between them, but it did not reflect the applicant’s ongoing concerns during this extended period when the disciplinary procedure invoked by Mr Murphy against her, and her own letter to the committee about him, were, in effect, left hanging in the air. At one stage during this period, Mr King came into the applicant’s office and asked, “What’s this all about? Let’s have a chat about this”. He gave the applicant to believe that the only document that he had read was Mr Murphy’s disciplinary procedure against her. He was not even aware of her complaint about Mr Murphy. Mr King’s comment to the applicant was, “I get so many emails, I can’t read them all”.
19 It was not until 23 July 2012 that a formal meeting was held in relation to the disciplinary procedure invoked by Mr Murphy against the applicant. At that meeting, the applicant was accompanied by Lyn Davenport as her support person. According to the applicant’s evidence, it was agreed that there had been what she described as a “misconstrual of behaviour” on both sides: the applicant had responded to what she had perceived to be Mr Murphy’s aggression, and she could have responded differently. It was agreed that the disciplinary procedure would be removed from her file, and that they would endeavour to continue working professionally together. The applicant said that her letter of complaint was not addressed in this meeting.
20 During the cross-examination of the applicant by counsel for the respondents, it seemed that it would be Mr Murphy’s evidence that the applicant’s complaint about him was indeed discussed, and resolved at this meeting on 23 July. By way of example, I set out the following question and answer:
Q: But from your perspective, at the end of that meeting on 23 July 2012, both your complaint to the committee and Mr Murphy’s disciplinary issue with you were resolved. That’s right, isn’t it?
A: No, I would not agree with that. My complaint to the committee about Mr Murphy was never dealt with and never resolved. The meeting with Mr Murphy, we reached agreement that there had been behaviours on both parts that had been inappropriate and unpleasant, given the duress of the incident that occurred the day before, and I put in place some measures with Mr Murphy to ensure that we were at least able to meet regularly but that did not happen.
21 In chief, Mr Murphy was asked what was the purpose of the meeting on 23 July 2012. He said that it was for him to go through the issues that he and the applicant had in the children’s centre “that Friday morning”. He said that “they were the areas that we covered off”. He said that both he and the applicant put their “points of view of what happened”. They each apologised for what had gone on between them. Mr Murphy believed that the meeting ended “quite amicably”. As far as he was concerned, “the matter was over and resolved”; “it was forgotten about”.
22 As it happened, the committee met that evening, 23 July 2012. An item in the minutes of that meeting was headed, “Children’s Centre Incident”. Under that heading, it was recorded as follows:
Kevin advised he has met with Jo Hansen on several occasions and this incident has since been resolved. It was agreed that John [King] would write to Jo in response to her recent written correspondance [sic] to the committee.
When asked in chief what this was a reference to, Mr Murphy said:
That’s [a] reference to the intruder coming in to the children’s centre, and it’s advising that I had met with Jo ..... of this incident and since been resolved and it would - you know, it would have been resolved. It was agreed that John would write to Jo, a response to her recent ..... so that’s - that’s obviously the secretary’s response that - that Jo would write, but I - I was advising I had met with Jo.
As is apparent, Mr Murphy had some difficulty answering his counsel’s question on this subject, but the matter was not taken further, either then or in cross-examination.
23 The question of Mr Murphy’s understanding of what had been discussed, and resolved, at the meeting between himself and the applicant on 23 July 2012, and of the entry in the minutes of the meeting of the committee that referred to the applicant’s “recent written [correspondence]”, has assumed some importance, in the following way. Late in Mr Murphy’s cross-examination by counsel for the applicant, it fell out that it was not until this proceeding had been commenced, and he was obliged to search the respondent’s records for documents relevant to the applicant’s claims, that he (Murphy) first saw the applicant’s letter to the committee dated 19 May 2012, sent by email to Ms Clarke on 22 May 2012. In his evidence under cross-examination, Mr Murphy was adamant that he had not seen the letter before the commencement of this proceeding and not, therefore, at any time that was relevant to the events of May-July 2012. He accepted that Mr King may have told him, at some point, that the applicant had made a complaint against him (although he did not accept that he had in fact been so informed), but he had not read the written complaint which was in fact sent to the committee.
24 A number of objective circumstances make sense of Mr Murphy’s denial of having seen the applicant’s complaint in the period May-July 2012. First, the complaint itself was sent only to the then president of the committee, and by her to the other members of the committee, not including Mr Murphy. Those recipients included Mr King, but, secondly, at some stage in the weeks that followed he made it clear to the applicant that he had not read it. The prospect that he had shown it to Mr Murphy by that stage must, therefore, be excluded.
25 Thirdly, it was the applicant’s own evidence that her complaint was not dealt with at her meeting with Mr Murphy on 23 July 2012. She gave the following evidence-in-chief:
Q: So did Mr Murphy express any view about your complaint, or the substance of your complaint?
A: No. My complaint about him was not mentioned. It was all his complaint about me. So my – that letter of complaint was never addressed by Kevin or the committee or anyone else.
Q: So in terms of your complaint, just coming back to document 61, where you indicate lacking confidence in the general manager, not providing staff with leadership or support, haven’t had a staff meeting, doesn’t organise regular meetings, requested assistance to check the budget, hasn’t occurred, and never acknowledges staff, doesn’t support the staff and raises his voice and points his finger, was that the subject of discussion at the meeting?
A: No, it was not.
Q: Did Mr Murphy indicate his awareness of those – the substance of that complaint?
A: Not in my recollections of that meeting.
Q: Okay. So you said he was angry initially. What was he angry about?
A: I think – my interpretation of the anger was that he was having to deal with this situation, and that he had been angry with me at the time and that he was still – there was still that anger with my behaviour.
Q: Was he angry that you had made a complaint?
A: I don’t know.
For Mr Murphy not to have read her written complaint at that point makes sense of what must have struck the applicant as a curious omission.
26 There was an element of overlap between the applicant’s complaint about Mr Murphy and her defence to the disciplinary procedure initiated by him. It seems tolerably clear that Mr Murphy well understood that that defence would involve issues about the robustness, to say the least, of his treatment of the applicant on 18 May 2012. He would not have needed to have read the applicant’s written complaint to realise that. At some point in the week ending, for Mr Murphy (who did not work on Fridays), on Thursday 19 July 2012, he wrote his report for the committee meeting that was to be held on the evening of Monday 23 July. In that report, Mr Murphy said that he had arranged a meeting with the applicant “to close off all outstanding issues between her and myself”. It is quite feasible that the “outstanding issues” to which he referred were all centred around the events of 18 May. This report need not be viewed as inconsistent with his evidence that he had not, at that stage, seen the applicant’s complaint.
27 Consistently with that perspective on things, the item in the minutes of the meeting of the committee – held on the very day that Mr Murphy had had his meeting with the applicant – was headed “Children’s Centre Incident” and referred only to that incident having been resolved. The reference to Mr King being charged with writing to the applicant in response to her recent correspondence was, at least according to the evidence, the first occasion upon which Mr Murphy might have become aware of the existence of any such correspondence. But there is no suggestion that the correspondence was tabled at the meeting. It is as though the applicant’s complaint was treated, in effect, as a sidebar to the main problem, the satisfactory resolution of Mr Murphy’s disciplinary procedure in relation to the applicant. Such a view of the matter derives some corroboration from Mr King’s correspondence with the applicant in the days following, and her response.
28 On 26 July 2012, Mr King sent an email to the applicant (with a copy to Mr Murphy) acknowledging the receipt of her letter to the committee, stating that “we” (presumably the committee) had noted her concerns, and “as the issues are of an operational nature we have passed the letter over to Kevin for consideration and where possible resolution”. Had that communication been made two months previously, it would have been unsurprising. However, coming when it did, it is consistent only with the committee having done nothing about the matter during those two months. Further, save for Mr King’s email as such, there is no suggestion in the evidence that the committee did pass the letter on to Mr Murphy. Mr Murphy did not in fact engage with the applicant any further on the matter. The fact that Mr King was a non-executive member of the committee, and what is now known about his inaction with respect to the complaint over the first two months, make it a realistic prospect that he overlooked doing what he said he would do, or had done, in his email of 26 July. As noted above, Mr Murphy denied that he saw the complaint at any time thereabouts, and there is nothing else in the evidence to undermine that denial.
29 In her response dated 29 July (not copied to Mr Murphy), the applicant said that the disciplinary procedure against her had been withdrawn and resolved as between Mr Murphy and herself. She said that she had “not proceeded with a Worksafe claim at this stage”, but her doctor had “a record of the extreme level of stress” that she had been under for the previous nine weeks. But, she said in her email, the general issues raised in her letter to the committee had not been resolved. She had expected a discussion about it with a member of the committee, but that had not occurred. She ended with a note of concern as to the absence of any grievance procedure in the case of a staff member wanting to raise with the committee an issue which she had with the general manager. To the extent that the applicant’s email bespoke some underlying irritation about her complaint not having been given the priority that she thought it warranted, one may sympathise with her position. The treatment of the complaint by the committee, however, is consistent with Mr Murphy’s evidence that he had not, at that stage, sighted the complaint.
30 Until the making of the applicant’s allegations in this proceeding, that was the end of the events of May-July 2012.
31 Additionally to her role as coordinator of children’s services, the applicant was required to coordinate the Diploma and Certificate III Children’s Services courses that the respondent was conducting. That had come about in the following way. The person whose position the applicant filled on her engagement had moved from the children’s centre to coordinating the Diploma and Certificate III Children’s Services courses. She was solely responsible for operating those courses for the respondent. Then, at the start of one of the years, this person gave notice. At the time, courses were being conducted and/or about to start. The then general manager of the respondent (Mr Murphy’s predecessor) requested the applicant to fill the void created by that departure. She had to “get the courses up and running and finish off the ones that were still in progress”. The applicant agreed to do that on an interim basis, and on the proviso that it did not take too much of her time away from the children’s centre. In the result, according to the applicant, she found herself teaching a diploma course at night every second week. This took up a lot of her time, so she prevailed upon the respondent to employ first one and then another teacher to assist in this area. This enabled the applicant to withdraw from actual teaching duties in these courses and to concentrate on her work in the children’s centre.
32 In December 2012, the government informed the respondent that its funding for these courses for the following year had been withdrawn, amounting to a loss of income for the respondent of about a third. A series of negotiations with the responsible Minister followed, the result of which was that the respondent was permitted to enter into an arrangement with Chisholm Institute of TAFE. By this arrangement, the respondent would deliver Chisholm’s courses, at its (the respondent’s) premises and using its staff. The courses themselves commenced in June or July 2013, with the first half of the year being occupied with the groundwork required to put in place the detailed measures required by Chisholm.
33 For these purposes, the respondent engaged Helen Lord, whom Mr Murphy described as a very experienced person in running a registered training organisation (which, relevantly to this aspect of its activities, the respondent was). He described Ms Lord as being “very good ... at the compliance side of it to ensure that all the resources were up to standard.” Upon engagement by the respondent, Ms Lord reviewed its teaching resources, and met the coordinators, including the applicant. Her meeting with the applicant led to correspondence with Mr Murphy which laid the foundation for another of the applicant’s allegations in this proceeding.
34 On 5 March 2013, Mr Murphy emailed the applicant, stating that he had just met with Ms Lord, who informed him that she (the applicant) was not prepared to provide the documentation that she (Lord) had requested and which was needed to comply with Victorian Registration and Qualifications Authority requirements. He said that “under our present predicament” he needed to ensure that the respondent’s house was in order, and he had asked Ms Lord to ensure that the respondent was compliant with those requirements. He said that he expected the applicant to “perform as a team member”, and as such she needed to ensure that the respondent was compliant “in regard to all of your course records”. His email concluded:
Under your key functions and responsibilities you are required to manage the delivery of high quality vocational education and training and as such it is essential you comply with all VRQA requirements.
I am now giving you a lawful directive to provide and put on file all of the necessary information requested by Helen. If you are unable or not prepared to do this please advise me before 4pm Wednesday 6 March 2013.
35 By return email sent on 6 March 2013, the applicant told Mr Murphy that she took “great offence at the threatening tone” of his email. She said that he ought to have clarified the matter with her before sending the email. She said that it was a “complete misrepresentation” to say that she was not prepared to provide the documentation required. She continued:
I told Helen that I was aware of the need for the unit mapping documents and had them ready to complete but that we had not had any time to complete them nor the funds available to pay for this time. I then said, and Helen agreed, that we would have at least 2 weeks notice before an audit and would be able to complete the documentation in this time. Helen agreed that all of our other documentation was present and in good order. It will take approximately 16 hours to complete. I am not able to do this within my usual hours.
If you are able to fund the additional time required to undertake the preparation of the documentation I will be very happy to complete it.
36 Mr Murphy replied to the applicant, still on 6 March 2013, stating that “there is no intended threatening tone at all, only regret that you continually take a very insular approach to our present critical situation and are not prepared to contribute without reward to the future wellbeing of the organisation as a whole.” He said that the proposition that they would get two weeks’ notice of an audit was not her “call to make”, and it was a risk that he was not prepared to take. He said that, if there were no less costly way, the applicant would have to bring in a casual to cover her 16 hours of work on the task that he had required of her.
37 In the applicant’s rejoinder sent the same day, she said that she did not have any spare hours beyond the efficient running of the centre, and was not prepared to work for nothing. She added, “As the Children’s Centre is holding up all other operations at this time, I do not consider my approach to be insular.” However, she said that she would comply with Mr Murphy’s order and “undertake to complete this task as quickly as humanly possible, at the expense of the Children’s Centre, if I can find relief staff at such short notice”. Replying on the same day, Mr Murphy set out some financial figures that made it clear that the children’s centre was not “holding up the other operations”.
38 It was at 6:42 pm on 6 March 2013 that the applicant sent the following email to Mr Murphy:
Thank you for informing me about how the finances are distributed. I was unaware of this.
I wish to remind you that my role of coordinating the Children’s Courses is one that I was asked to take on as a favour to the organisation when the then incumbent resigned with no notice and left the courses in a state of disarray. I worked hard to get them back to a high standard and financially viable. It is a role that is separate from my work as coordinator of the Children’s Centre.
I now find myself in the position of having to resign as the coordinator of the Children’s Services Courses. I no longer wish to be involved with something for which I have received no appreciation and in fact I now feel that I am being abused.
I will complete the Unit Mapping as prescribed by the consultant, Helen Lord and my resignation will therefore be effective from Friday 15th March.
39 At 3:13 pm on 7 March 2013, Mr Murphy replied in the following terms:
The last increase you were given was in appreciation for the work you were performing so I do understand the comment of not being appreciated and for your information you are the only manager who has had an increase over that period.. [sic]
I have asked you to complete a requirement that you were well aware of and I [sic] fact have previously said you would do. I have also pointed out to you that statements you were making are not correct. I do not class either of these as abuse.
I can only go by your position description that I inherited and it describes one of you [sic] Functions and Responsibilities as follows
“Manage the delivery and evaluation of high quality vocational education and training”
During my time here you have performed that task and only been paid at a higher rate for any additional tutoring hours worked and been paid for any claim for time in lieu.
I do not believe you can choose to resign from a part of your current position unless you wish to re negotiate your contract in total; however to ensure correctness I will seek advice and get back to you.
In the meantime I cannot accept the conditions of your part resignation.
40 After two further brief exchanges on the subject of the source of the position description referred to by Mr Murphy, the applicant wrote to him on 8 March 2013 in the following terms:
I have found my letter of appointment and the attached, “out of date” job description. I do not know if it is the same one as the one you have but it is dated 16th June 2009. It was understood at that time that the statement “Manage the delivery and evaluation of high quality vocational education and training” relates to the training of staff and students within the Children’s Centre context, not running training courses.
I was employed as the Children’s Centre Coordinator when the previous coordinator moved to running the Cert 111 and Diploma Courses. To say that my position description included running the training courses would have been in conflict with her position.
The additional role as Children’s Services Course Coordinator which I undertook in 2011 was initially as a contractor, as you will be aware from the invoices I was submitting for work undertaken, as per instruction from the CEO at the time. It has always been in addition to my role as the Children’s Centre Coordinator. It was also intended to be short term until the courses were in better shape.
I do not understand why you are taking this response to my resignation from Coordinating the Cert 111 and Diploma Courses. This position has essentially been made redundant since the removal of funding and I assume would be taken over by any organisation with whom you develop a partnership.
I do not wish to continue in this role. It is no longer enjoyable work.
I will challenge your refusal to accept this partial resignation.
41 On 28 March 2013, the applicant and Mr Murphy met (with others present) with a view, according to the applicant, of renegotiating her role coordinating the courses. She agreed that the meeting was conducted in an amicable manner. The applicant said that she had sought legal advice, and wanted to resign from coordinating the courses, but not from her coordination role in the children’s centre. Mr Murphy said that if the applicant did not want to work more than 30 hours a week, that was fine, but that the centre could not afford to employ someone else as a course coordinator. The applicant said that, if she had a trainer, the course coordination role would be more manageable. There was some discussion about approaching two staff members who had previously been lecturing the courses to see if they would be able to come back and continue that work. Mr Murphy said that he was not challenging the work that the applicant did. It was agreed that the course coordination role that the applicant was undertaking would continue, subject to a limit of about one hour per week, and that the matter would be reviewed again in six months’ time. After the meeting, the applicant continued to perform the course coordinator duties on that agreed basis.
42 On 2 April 2013, the applicant sent an email to a former member of the committee of management, which contained the following passage:
The meeting with Kevin went OK. We agreed that I would continue to provide limited support to the Courses, no more than 2 hrs per week. I will meet with him to redo my job description and agree on specific duties. This will be reviewed in 6 months.
He had gone back over everything I had sent him and used some things to prove his case but the jury is still out. At least he had read them!!
He will advertise for staff for the Courses and wants me to pull back my hours working with the children. This will need to be a budget decision and when I have adequate staff also.
43 Commencing in December 2012, Melanie Moore was employed as the coordinator of the occasional care centre operations of the respondent, reporting to the applicant. Additionally, she ran the three year-old kindergarten on Monday afternoons. The applicant made it her practice to meet with Ms Moore each Friday afternoon after the children and other staff had left, to discuss any issues that she (Moore) had with what was happening in the room, how her relationship with the other staff was going, and whether there were there any resources, or support from the applicant, that she required.
44 It was the applicant’s desire to have this regular meeting with Ms Moore on the afternoon of Friday 11 July 2014, and Ms Moore’s refusal to do so, which provoked the unhappy events leading to the summary termination of the applicant’s employment. I shall refer to those events presently, but it is necessary first to lay out some background. In retrospect, it may be seen that the fuse for the events of 11 July 2014 was set over a period of a few weeks prior to that day.
45 In the last week in June 2014, Ms Moore’s daughter was unwell and had to be hospitalised. During that period, Ms Moore communicated with the applicant by SMS messages, rather than, conformably with what the applicant said was the respondent’s policy, by telephone. There was one occasion when Ms Moore sent a message to the effect that she would not be coming to work and that she thought, but did not confirm, that a relief teacher would be attending in her place. In the result, the applicant could not be confident that a relief teacher would attend. Although a relief teacher did in fact attend, the applicant telephoned Ms Moore and asked her to make sure that she rang her, and answered the phone when she (the applicant) rang her (Ms Moore), rather than just sending SMS messages. In her evidence, the applicant described this as “a tricky situation”.
46 A week followed when the applicant was either (for one of the days) working on the children’s services courses or (on the other days) on annual leave. During this week, according to the applicant, she barely saw Ms Moore.
47 On the morning of Tuesday 8 July 2014, a staff meeting was about to start when Ms Moore entered the room carrying an old kitchen sink which she had retrieved from the tip. Her idea was that it would make an interesting addition to the children’s sand pit. The applicant thought that bringing the sink to the staff meeting was not appropriate, and also regarded the sink as “incredibly dangerous”. It had been set on a table with its edge completely exposed presenting, as the applicant thought, “a significant danger to the children”. But what was worse, as far as the applicant was concerned, was that Ms Moore did not recognise the danger, something which made the applicant “extremely disappointed”. In front of the other staff in the room ready for the meeting, the applicant said to Ms Moore, “Look, I’m sorry, that is not safe. We cannot have that with the children like that.”
48 From the applicant’s perspective, the sink was only the last in a series of inappropriate items which Ms Moore had brought to the centre. From a written warning which the applicant issued to Ms Moore on 11 July 2014 (to which I refer further below), it is apparent that the applicant was also concerned about Ms Moore’s having brought “a box and cable reel which had nails and staples sticking out” and “toadstools … not made of natural materials … [which] … were also dangerous with staples on them” and which constituted “an additional item to be packed up each day, adding to other staff workload.” According to the applicant, Ms Moore became upset when she expressed her concern over the toadstools, but the problem would never have arisen if Ms Moore had discussed them with her before bringing them into the centre.
49 The applicant had to leave immediately after the staff meeting on 8 July 2014, and, over the next three days, from time to time she thought about having a word with Ms Moore about the sink, and what could be done with it. But each time, according to the applicant, Ms Moore either had her daughter with her or was leaving early. The applicant accepted that it was acceptable for a staff member to have a young child with her during school holidays (as was the situation then), but Ms Moore had not “cleared” it with the applicant before bringing her daughter to work, as would have been the normal practice. Further, that week Ms Moore was changing her shifts regularly, either “coming later or shortening the hours”, none of which had been passed by the applicant as her manager. In her evidence, the applicant described these “behaviours” on Ms Moore’s part as unusual, unacceptable, unreasonable and very surprising.
50 Ms Moore had indeed been changing the hours during which she worked, and doing so in the following circumstances. In her evidence, she said that her working hours were “set in stone” to the extent that they represented the hours when there were children at the centre. In addition to that, however, she was, normally, required to remain at the centre for a further two hours after the children had left, to attend to preparation, training and miscellaneous administrative tasks. There was a degree of flexibility in when these additional hours might be worked. Ms Moore’s normal finishing time was 3:30 pm, that is, two hours after the children left at 1:30 pm. At times, however, she arrived at work one hour early in the morning and departed at 2:30 pm in the afternoon, for reasons of personal convenience. She accepted that she was required to secure the applicant’s agreement to this arrangement, but, at least according to the applicant, this was not always done. This arrangement was particularly used by Ms Moore during school holiday periods for the children in her own family (of whom there were four), and it may be that she developed a kind of modus operandi in this regard that caused her to assume that the applicant would have no objection. However, as appears from what I have written in the previous paragraph, this practice of Ms Moore’s, or at least her omission regularly to seek the applicant’s approval for it, had become a source of irritation for the applicant. It was something about which she wanted to speak to Ms Moore.
51 From Ms Moore’s perspective, the period leading to 11 July 2014 had been characterised by the applicant being hypercritical of her over trivial things: “nitpicking”, as she described it in her evidence. There were “silly little things” that the applicant would say were not right, and Ms Moore would make them right immediately, but, according to Ms Moore’s evidence, “[e]verything [she] tried to put right wasn’t good enough.” It may be that some or all of the issues, referred to above, which had led to the applicant’s concerns were amongst the trivial things mentioned by Ms Moore, but, one way or the other, it seems clear that the applicant was concerned about Ms Moore’s performance, and Ms Moore was increasingly uncomfortable about the treatment she was receiving from the applicant.
52 Which brings me to Friday 11 July 2014. As between the applicant and Ms Moore, there is a substantial factual controversy about the events of that day, but the court has the benefit of separate memoranda written contemporaneously by both, and of the evidence of a third person, Ms Dewhurst.
53 I commence by describing the layout of the room at the centre to which the witnesses referred as the children’s room: it was, I gather, the main room where the kindergarten children were engaged in indoor activities. As to its shape, it is sufficient for present purposes to say that it was generally rectangular. There were three doors leading from it which became relevant in the events of 11 July 2014. The first was what may be called the main exit door, that which someone would conventionally use to proceed out of the building and to the external area where cars were parked. The second was a door to a small room which served as an office. It led off the same wall as the first door, and was only a few metres away from it. The third door was set in another wall of the room, at 90 degrees to the first wall mentioned, and led onto the playground, or courtyard.
54 The applicant spent the morning of 11 July in her office (it may have been the same “office” as that referred to above) working on course materials for a diploma and certificate course. It was, in her words, “a very intense four or five hours working on the computer.” At some point after she had finished that work, which she herself placed between 12:30 and 1:00 pm, the applicant had an exchange with Ms Moore. According to the applicant, she asked Ms Moore whether she would be staying back that afternoon (ie consistently with their practice of meeting on Friday afternoons). Ms Moore replied that she would not be staying back. According to the applicant, Ms Moore said, in a “belligerent fashion”, that she had arrived half an hour early that day, and would be leaving early. The applicant asked her whether she had told her about that, and Ms Moore replied, “No, I’m telling you now.” The applicant said that they would catch up later, thinking that Ms Moore’s leaving half an hour early would still allow enough time to have the conversation which she wanted to have with Ms Moore.
55 According to the evidence of Ms Moore, on the morning of 11 July 2014 the atmosphere in the centre was “quite tense”, due to the applicant’s mood. She was, Ms Moore said, very tense, uptight with staff and “quite snappy”. She could feel that there was a “negative energy” in the room. She said that the applicant was aggressive with her over a number of trivial things. Ms Moore denied that the applicant asked her whether she would be staying back, but could not recall whether she had herself explained to the applicant that, having arrived at work early that day, she would be leaving early: she allowed for the possibility that she did say that. What Ms Moore did recall was that the applicant pointed a finger in her face and said, “I will see you later”, or “I will meet you later.”
56 A little later, the applicant noticed Ms Moore “running around cleaning things”, and told her that she (the applicant) would do that, instructing Ms Moore to go and be with the children. According to the applicant, the response which she got to this was “a dirty look”. Although not specifically referred to by Ms Moore in her evidence, this is consistent with what she said about the applicant troubling her with trivial things. According to the evidence of Ms Dewhurst, Ms Moore seemed “a little bit upset” on 11 July 2014.
57 After the last of the children had left for the day (which would have occurred at about 1:30 pm), the applicant, Ms Moore and Ms Dewhurst were in the children’s room cleaning, packing up and getting the room and its contents ready for the following Monday. The impression I got from the evidence was that each was concerned with her own tasks, rather than, for example, the three of them working cooperatively together on a single task. In her own mind, Ms Moore was preoccupied with her concern about the meeting which she knew she would be obliged to have with the applicant after they had completed that work, and before she left for the day. In her evidence, Ms Moore said that, by this point, she had become very nervous about what it was that the applicant wanted to discuss with her. She said that she “felt quite teary”.
58 At some point, Ms Dewhurst noticed that Ms Moore “seemed quite upset”, so she advised her to go outside and compose herself. Taking that advice, Ms Moore went to the toilet. Ms Moore did not say so herself in her evidence, but it appears from an email sent on the following Monday by Ms Featherstone, the receptionist in the office, to Mr Murphy – received into evidence without objection – that, as Ms Moore passed by, Ms Featherstone called her into the office because she looked so upset. Ms Moore told Ms Featherstone that the applicant had demanded that she speak to her at the end of the day. Ms Moore felt that she was being “bullied” (Ms Featherstone’s inverted commas in her email). Ms Moore gave Ms Featherstone to understand that the applicant was annoyed because Ms Moore came in early and was leaving earlier without asking her (the applicant) first. Ms Moore had, according to Ms Featherstone’s email, “escaped for a few moments to try and get her thoughts together before going back”.
59 In the toilet, Ms Moore could see that she looked “as white as a sheet”. She felt “so intimidated and nervous”. She thought, “This is ridiculous ... I couldn’t possibly have a meeting with her [ie the applicant] in this state.” Reminding herself that she was “a grown woman,” she decided that she was in no fit state to meet with the applicant. After returning to the children’s room, she said to the applicant, “I’m sorry, Jo, you can see I’m far too upset to have this meeting with you now. I’m going to need to reschedule the meeting when I’m in a better state to do it.”
60 At this stage, the evidence of the applicant and of Ms Moore diverge one from the other so substantially that my only option is to commence by setting out the substance of each separately. According to the applicant, when Ms Moore effectively told her that she was going home rather than having the intended meeting with her, she (the applicant) said to Ms Moore, “Well, Mel, we need to catch up. You’re going away next week”. Ms Moore replied, “No, I’m too upset. I’m leaving”. The applicant said, “Melanie, calm down. We need to have a talk”. According to the applicant, as she said this, she placed her hands on the upper, front-facing, part of Ms Moore’s arms in a soothing motion, adding, “Come and sit down”. But Ms Moore said, “No, I’m too upset to talk to you now. I’m going home.” At this point, Ms Dewhurst said (addressing the applicant), “Jo, don’t touch her.” The applicant removed her hands from Ms Moore’s arms, and Ms Moore turned and left the room by way of the third door referred to, that leading into the courtyard. As she was leaving, she said, “I’m not staying here. You’re bullying me.” The applicant replied, “Melanie, this is not bullying. This is a manager trying to manage staff.”
61 According to Ms Moore, when she announced that she was in no fit state to have the intended meeting, the applicant “bolted” for the first door mentioned, the main exit door, took hold of the door handle and blocked Ms Moore from leaving. Pushing Ms Moore’s hand away from the door, the applicant said, “You are not leaving. You’re [not] getting out of this.” By this point, Ms Moore was sobbing. She said to the applicant, “Sorry, Jo, I can’t. You can see you’ve intimidated me so much today that I am not in a fit state to have this meeting now with you. Please let me go.” The applicant pointed to the office and yelled at Ms Moore, “Get in that office right now.” Ms Moore said, “Sorry, Jo, you’re bullying me now. I need to go. You need to let me go.” Ms Moore went to take the door handle (ie of the first door), at which point the applicant, in the words of Ms Moore, “just launched at me and just started pushing my whole upper body and just sent me flying.” The applicant was “coming at me and was trying to push me physically into the office and just screaming at me, ‘Get in that office now’.” It was at this point that Ms Dewhurst said, “Stop, Jo.” The applicant then did stop pushing Ms Moore, and the latter turned and walked away from the applicant, and thus away from the first door and towards the third door. As she did so, the applicant screamed at her that, if she took one step further, she would give her a formal written warning. According to Ms Moore, by this point she was “absolutely hyperventilating”, but she continued out through the third door and across the playground.
62 According to Ms Dewhurst, on Ms Moore’s return from the toilet, Ms Moore told her and the applicant that she was going to grab her stuff and leave. Then the applicant went to the first door, placing herself between Ms Moore and that door, and said to Ms Moore, “We need to discuss this further. I want you to come back into the office.” Ms Dewhurst said that the applicant was not screaming at this point, but she was “using a tone”; she was speaking in a louder voice than usual. Ms Moore said, “No, I don’t want to discuss it any further. I’m not going to have you bullying me.” At this point, according to Ms Dewhurst, “Jo put her hands on her and pushed her towards the door and then she wouldn’t let her go, so Melanie then exited through the other door.” The doors to which Ms Dewhurst referred here were the second and third doors respectively. When the applicant was pushing Ms Moore, Ms Dewhurst told her, twice, to take her hands off Ms Moore.
63 In her evidence, Ms Dewhurst said that the applicant’s pushing of Ms Moore was sufficient to move her part of the distance from the first door towards the second door – leading to the office which the applicant wanted Ms Moore to enter – but not the whole of the way. Ms Dewhurst was unable to say how far the applicant did push Ms Moore, but she made it clear that some movement was involved.
64 After Ms Moore had left the children’s room, she went to Ms Featherstone’s office. According to Ms Featherstone’s email of 14 July to which I have referred, Ms Moore was “incredibly upset”. In that email, Ms Featherstone continued:
She could barely catch her breath; she was crying so much I thought she was going to be sick. Mel explained that she tried to tell Jo she (Mel) was in no fit state to talk at that time at which point Jo insisted she was not to leave until she listened to what she had to say. Apparently Jo manhandled Mel her [sic] in to the office and would not let her leave; accused her of manipulating the other staff amongst a host of other things. She gave Mel her first official warning for, it would seem, not wanting to “talk”. Clearly Mel was extremely aggrieved that she had been treated in a way that was not acceptable to her.
Ms Featherstone calmed Ms Moore to an extent, at least making it feasible for her to drive home.
65 When Ms Moore arrived at her home she was still, according to her evidence, “in such a state”. About five minutes later the phone rang. Suspecting that it might be the applicant, Ms Moore did not answer the phone herself, but asked her daughter to do so. It was the applicant. The only direct evidence of that call was given by her. According to that evidence, the applicant asked the daughter, “Can you ask mum to talk to me, please”. The daughter replied, “No. Mum doesn’t want to talk to you now.” The applicant said, “Okay, love. Thank you. Goodbye.” In contrast to this version of events, Ms Moore gave evidence, without objection, that, after speaking to the applicant on the phone, her daughter told her that the applicant had said to her, “Tell your mother to get back here right now. There’s an emergency.” Ms Moore then rang Ms Featherstone, to ask whether there was an emergency, and was told that there was not. The applicant denied telling Ms Moore’s daughter that there was an emergency. The most reliable evidence about this latter aspect, however, is Ms Featherstone’s email to Mr Murphy of 14 July 2014. According to that email, Ms Featherstone did receive a call from Ms Moore late on 11 July, but she was told only that the applicant had left a message with Ms Moore’s daughter, asking Ms Moore to call her back “because it is important”.
66 Each of the applicant, Ms Moore and Ms Dewhurst made a written record, of sorts, as to the events just described in these reasons. At 3:31 pm on the same day, the applicant sent an email to Ms Moore, in which she said that avoiding discussion did not “make issues go away”. It made them worse. She said that she had tried to address the issues before the weekend, “but your avoidance of any discussion has left me with no alternative”. She said that Ms Moore’s behaviour had caused her to “escalate [this] into a formal performance concern”. She asked Ms Moore to read the document attached to the email, “and respond to me formally by Monday”. The document was headed, “My concerns re the recent performance of Melanie Moore”, and laid out what those concerns were (some of which have been referred to above). Relevantly to the events of 11 July as such, the document contained the following passage:
It is not reasonable for you to accuse me of bullying when I have barely spoken to you over the past 2 weeks and am trying to meet with you to resolve issues. That is not bullying, it is managing staff. You have not been available for any conversation about what is happening. Walking out when your manager is trying to discuss concerns is neither professional nor helpful. I would have preferred to resolve these matters calmly and before the weekend but you will now not even answer the phone.
At 3:41 pm, the applicant sent a copy of the email, and attachment, to Mr Murphy. In the email, she said that Ms Moore had been “on another planet for the last 2 weeks”. Referring to Ms Moore’s plans to travel overseas the following Thursday, the applicant said, “I did try to meet with her today to clear things up but she put on the tears and accused me of bullying when all I had done was told her we would have a talk after the session.”
67 At 4:12 pm, having received the applicant’s email but not having read the attached warning, Ms Moore sent her own email to Mr Murphy, complaining about the way she had been treated by the applicant. That email contained the following passage, referring to the applicant:
Her intimidating and patronising manner has been going on for some time and today it seemed to have escalated out of control. I felt very threatened by her today and she said she wanted to speak to me later with such anger that I was really panicking. The concerning issue can be explained later in person. I began to get very distressed and could not control myself from crying as I knew as soon as everyone was gone she was going to verbally attack me.
I could not calm down and a couple of other staff members being Melissa Dewhurst and Karen witnessed this. I decided to go home as all of the children had gone home and the room was packed up and [I] was beginning to feel physically sick at the prospect.
I apologised to Jo before I left saying that I was not in a fit state to talk to her now and we will have to make it another time. At this point she blocked the doorway and shouted at me; demanding that I go in the office right now. I kept my head down in a submissive manner and said no I can’t be bullied by you like this, I need to go. At which she carried on threatening that I do as she say, I repeated that I couldn’t as I was too upset.
She then began to physically push me, nearly knocking me over. I said stop, but she didn’t until Melissa then shouted at Jo to Stop. I then quickly exited the playground door. Jo carried on shouting at me saying if I left I would get a written formal warning. I carried on walking and I was in a terrible state, hardly able to catch my breath.
68 At 8:29 am on 15 July 2014, and having been requested to do so by Mr Murphy, Ms Dewhurst sent him an email containing the following passage about the events of 11 July:
On Friday after the children had left, I noticed that Mel was crying and seemed upset and anxious. She expressed to me that she did not want to speak to Jo and she was too upset. I told her to go outside to compose herself and come back when she felt ready. We then continued to do the rest of the day clean up. Jo and I were putting pictures on the cupboard and Melanie had grabbed her things and said that she was going. Jo then got up and went to the door and told her to go back to the office so they could discuss this, using a firm tone with her. Melanie refused and said, ‘She would not have you bullying me,’ then Melanie tried to open the door to leave and Jo then started to push Melanie using her hands in the direction of the office. Melanie kept saying to Jo, ‘No’ ‘No’ I then shouted to Jo, ‘Take your hands off her!’ which I repeated twice. Then Melanie turned and exited the room via the playground area as Jo was blocking the other door refusing to let her leave. Then Melanie left. Then Jo left through the front door and then came back. Then I raised to Jo that there had been tension between them over the past couple of weeks. Jo seemed perplexed as she said she had not seen her over the last couple of weeks and said to me ‘Well it is all my fault then’, I chose not to engage further with this as it would not have gotten me anywhere. I then finished my duties and left.
69 In due course, I shall have to resolve the controversy presented by the evidence of the applicant, Ms Moore and Ms Dewhurst about the events of the afternoon of 11 July 2014. For the moment, however, I propose to continue with the narrative.
70 Mr Murphy did not work on Fridays. On the morning of Monday 14 July 2014, he read the emails which had been sent to him on 11 July by the applicant and Ms Moore. At 9:35 am, he emailed Ms Moore with a request for her to contact him before she started work. Apparently unbeknownst to Mr Murphy at this stage, Ms Moore would not be attending work at all that day: she was absent on sick leave, for an indisposition related to the events of the Friday, over the three days 14-16 July 2014, after which she commenced a period of scheduled recreational leave.
71 It was at about this time (ie around 9:30 am on 14 July) that Mr Murphy made the first of three phone calls to the children’s centre. He spoke to the applicant, and told her that he had received a complaint from Ms Moore, that it was serious and that they would need to talk about it when she (the applicant) was free. The applicant said that she would not be free until after the children had gone.
72 At 10:35 am on 14 July 2014, Mr Murphy responded to the applicant’s email sent to him on 11 July. He informed her that Ms Moore had made a bullying complaint against her. He said that he needed to speak to each of them separately, and asked her to let him know when she would be available. He said that he would also need to speak to Ms Dewhurst, as he believed that she was present “when this issue arose”.
73 At 10:40 am on 14 July 2014, in response to the applicant’s requirement for a formal response to her “performance concerns” document of 11 July, Ms Moore sent the following email to the applicant (with a copy to Mr Murphy):
I am writing in response to your email and formal written warning regarding my performance at work (received Friday 11th July, 2014).
After your persistent efforts to bully and intimidate me throughout the week, by Friday afternoon I advised you that I had become emotionally distressed beyond the point of being able to participate in a discussion with you.
Despite the fact that I was crying and in obvious emotional distress caused by your aggressive comments throughout the day, you physically prevented me from leaving the premises and proceeded to physically assault me by means of pushing and shoving me towards the office. As you are aware this was witnessed by one other staff member who intervened in my defence.
Upon review of the staff complaint policies and procedures it appears that you are in breach of the guidelines and I am seeking legal advice on how to proceed. I have cc’d the General Manager of Mt Martha Community Learning Centre in this email and am awaiting his response regarding this situation.
Furthermore, I will not be attending work until further notice based upon advice from my medical practitioner and legal advisor as a result of the amount of stress I am currently experiencing.
74 Probably at this stage in the order of things (although nothing turns on the exact timing), Mr Murphy telephoned the applicant again. According to her evidence, he “snarled” down the phone, “Have you read your emails?”, to which the applicant replied, “No, I haven’t. I’m working with the children.” Mr Murphy said to her, “Well, read them”. By this stage, the applicant was aware that Ms Moore would not be coming to work, and she told Mr Murphy that she would not be available to speak to him until some time after 4:00 pm, because she herself would have to conduct both sessions with the children. Mr Murphy said that he would see her at 4:30 pm.
75 Mr Murphy then telephoned Ms Dewhurst. According to Mr Murphy, in the conversation which followed he asked Ms Dewhurst if she had been present when the altercation between the applicant and Ms Moore occurred, and she said that she had been. He asked her if Ms Moore had been pushed, and she replied, “Yes, she had.” Mr Murphy asked her to put that in writing. Ms Dewhurst herself did not give evidence about this conversation, but it was probably the third of the calls from Mr Murphy that morning to which the applicant referred in her evidence. She said that Mr Murphy telephoned to speak to Ms Dewhurst. The applicant saw Ms Dewhurst on the phone to Mr Murphy and, after a period of seemingly listening to what he was saying, Ms Dewhurst simply said, “Yes”. In this respect at least, the evidence of the applicant and of Mr Murphy is consistent.
76 At 11:40 am on 14 July 2014, Mr Murphy received the email from Ms Featherstone to which I have referred.
77 At some point, inferentially late in the morning of 14 July 2014, Mr Murphy telephoned “Jobs Australia”, an organisation to which the respondent subscribed and which provided it with industrial relations advice as required. At 12:14 pm, he sent an email to the person at Jobs Australia with whom he had spoken by phone, Cathy Caruso, enclosing Ms Moore’s complaint against the applicant. In that email, Mr Murphy said that he had spoken to Ms Dewhurst “who confirms what happened and will do so in writing tonight from home”.
78 At 12:20 pm on 14 July 2014, Ms Caruso responded to Mr Murphy’s email. She attached a document of Jobs Australia titled, “Disciplinary Action and Termination of Employment Guide”, a 2009 publication revised in 2012. In her email, Ms Caruso drew Mr Murphy’s attention to a page of the document which dealt with “the process you should follow for dealing with serious and wilful misconduct” and to another page on the subject of “summary dismissal”. As to the latter, Ms Caruso said, “You could technically dismiss under this provision but I suggest having an investigation is a more appropriate approach.” She said that she would draft a letter and send it to Mr Murphy. She did so in an email sent to Mr Murphy at 12:44 pm that day.
79 Upon reading Ms Caruso’s email sent at 12:20 pm, Mr Murphy immediately decided that her suggestion that there be an investigation, which he understood as an “independent” investigation, was a good one, and should be adopted. From that point on, and save for a brief exchange with the applicant at about 4:30 pm that day to which I refer below, Mr Murphy withdrew from any personal involvement in the investigation of the events of 11 July 2014.
80 Because an aspect of the applicant’s case in this proceeding relates to Mr Murphy’s reasons for terminating her employment, I should set out the two sections of the Jobs Australia document highlighted by Ms Caruso. That which related to summary dismissal was as follows:
Summary or instant dismissal effectively means dismissal “on the spot” and without the period of notice specified in the award or provided for under any applicable legislation.
Summary dismissal by an employer for serious and wilful misconduct is a common law right.
The Fair Work Act 2009 in its Regulations defines and codifies the common law with respect to serious misconduct:
• wilful, or deliberate, behaviour by an employee that is inconsistent with the continuation of the contract of employment; or
• conduct that causes imminent and serious risk to the health of [sic] safety of a person or the reputation, viability or profitability of the employer’s business.
Conduct that is deemed to be serious misconduct can occur when the employee, during the course of employment engages in one or more of the following:
• intoxication at work (to the extent that the employee is unfit for work); or
• refusing to carry out a lawful and reasonable instruction.
Effectively, the Act is stating that an employee’s actions must be such that the employee has fundamentally breached an implied or express term of their contract of service with their employer. Judging whether a particular instance of misconduct constitutes serious and wilful misconduct is not always as straightforward as it sounds, and advice should be sought.
As in other situations of termination of employment, if an employer is dealing with an employee where serious and wilful misconduct is alleged, the employee concerned is entitled to natural justice before a decision is made to summarily dismiss. The principles of natural justice are quite clear in the case of dismissals. Judgments have been made stating the principle that:
An employee cannot lawfully be dismissed without first telling the employee what is alleged against them and hearing their defence or explanation.
While the employer may consider the actions of an employee to be such as to warrant instant dismissal, Jobs Australia advice should be sought before any decision to dismiss is made. Each case must be assessed on its particular merits.
81 The section of the document which set out the process for dealing with serious and wilful misconduct was as follows:
• Employer collects all material relevant to the allegation.
• Employer objectively reviews information obtained.
• BEFORE TAKING ANY ACTION CONTACT JOBS AUSTRALIA.
• Prepare a letter detailing the allegation.
PRIOR NOTICE OF INTERVIEW
• Letter sent to employee stating that a disciplinary process is being initiated.
• Letter details the allegation of serious and wilful misconduct.
• Schedule a meeting time and place and nominate who will conduct the interview.
• Invite employee to [be] represented by union or other representative.
• Interview with the employee. Provide opportunity for employee to answer all allegations. Take detailed notes on responses to each defence or explanation.
• Concentrate on the issues listed in the notification letter. Don’t be distracted and stay objective.
• Advise the employee that you wish to consider the employee’s explanation.
• Thoroughly investigate any matter which was raised in the interview in defence of the allegation and about which you are not clear. Fairly, and objectively consider the explanation and information provided by the employee.
You should contact Jobs Australia at this stage to discuss whether it is appropriate to summarily dismiss the employee.
• If the allegations of misconduct are proven to your satisfaction then the employee should be advised of employer’s decision to terminate their employment for serious and wilful misconduct.
• Provide written notice of termination including the reason(s) for dismissal.
• Pay employee all accrued entitlements.
No Notice period is paid in the case of a summary dismissal
• Issue Certificate of Service and Separation Certificate
If in doubt at any stage, contact Jobs Australia – we’re here to help.
Remember: if you don’t follow the above procedures you may be forced to reinstate an employee or pay compensation.
82 At 1:37 pm on 14 July 2014, Ms Moore sent Mr Murphy a lengthy email defending herself against the concerns raised in the applicant’s email sent at 3:31 pm on 11 July 2014 to which I have referred.
83 Mr Murphy caused Ms Caruso’s draft letter to the applicant to be printed on the respondent’s letterhead. I shall refer to the terms of the final version of the letter below, but this first version was sent back to Ms Caruso for her comment at 2:04 pm on 14 July 2015. Consistently with Ms Caruso’s draft, a sentence in the letter read: “A copy of our Discrimination and Harassment and Complaints and Grievance policies are attached for your information.” Those policies were also sent to Ms Caruso for her comment.
84 There is no evidence as what Ms Caruso thought of the respondent’s policies, but the fact is that they did not accompany the letter which was handed to the applicant by Mr Murphy at 4:30 pm on 14 July 2014. Omitting formal parts, the letter read:
I am writing to advise that a formal complaint has been lodged with Mount Martha Community Learning Centre Inc by Melaine [sic] Moore.
The allegation made against you by Melaine [sic] Moore is that:
• “on 11 July 2014, you intimidated and bullied Melanie Moore by:
○ - requesting a meeting in a threatening manner
○ - refusing her requests to go home as she was upset and make another time
○ - blocking the doorway and shouting at her, demanding she go into the office
○ - physically pushing her, nearly knocking her over”
Given the serious nature of the allegation the organisation has decided to conduct a formal investigation into the matters raised by Melaine [sic] Moore.
As part of the investigation you will be interviewed and provided with the opportunity to respond. I also advise that you are free to have a support person present with you when being interviewed as part of the investigation.
In addition the organisation has determined to suspend you on full pay pending the conduct of an investigation during which you are asked to not report for duty until completion of the investigation expected to take several weeks. During this time should you require access to documents or your office such access:
• Shall be provided with a senior member of staff present.
• Also during the suspension period you are asked to refrain from contacting staff of the centre as they may be potential witnesses to the alleged incident.
Should you require additional support in the form of counseling [sic] support the organisation has arranged access to Christine Cox on 0404 069 674.
In the event that the allegation is proven you need to be aware that given the serious nature of the allegation an outcome may be disciplinary action that may include warnings or termination of employment.
It will be noted that the letter did not contain the sentence referred to in para 83 above.
85 As Mr Murphy handed this letter to the applicant in the office at the children’s centre, he told her that the complaint made against her by Ms Moore was very serious, and that he was suspending her on full pay. He said that there would be an independent investigation into the matter to ensure fairness. According to Mr Murphy’s evidence, the applicant responded by saying, “Well, I may as well resign. This is too much for me,” and started to pack her office up, by taking things off the shelves, for example. Mr Murphy said, “No. I don’t believe you should resign. I think you should let the investigation run its course. These are only allegations at this particular time.” But the applicant was still very emotional. Perhaps understandably, the applicant had an imperfect recall of the detail of this conversation, but thought it most unlikely that she offered to resign. She thought that she might have said that, if she left then, she doubted if she would be coming back.
86 On a day that I would infer was 15 July 2014 (because it was either 14 or 15 July, because it was known to be a day on which Ms Caruso was not at work at Jobs Australia and because Ms Caruso was undoubtedly at work there on 14 July), Mr Murphy contacted Jobs Australia and spoke to a human resources consultant, Margaret Balsillie. The matter they discussed was who could conduct the investigation upon which Mr Murphy had resolved. Ms Balsillie’s recommendation, which Mr Murphy accepted, was that he should contact Peta Nowacki at an organisation called “Working Together”. He did so. In a discussion with Mr Murphy on 15 July, Ms Nowacki said that she would be able to assign someone she knew with her own industrial relations consultancy, Elaine Phillips, to the investigation, and that Ms Phillips could commence by interviewing Ms Moore the following day. That was important, in Mr Murphy’s mind, because Ms Moore was departing for a holiday overseas on 17 July 2014. And so it came that Ms Phillips was assigned to conduct this investigation. Via Ms Nowacki, Mr Murphy supplied her with copies of the emails that had, to that point, come to his attention and which related to the matter in hand.
87 On 16 July 2014, Ms Phillips interviewed Ms Moore. She did so by reference to Ms Moore’s email to Mr Murphy sent at 4:12 pm on 11 July (see para 67 above). In the course of that interview, Ms Moore elaborated on some of the conduct of the applicant over the previous weeks to which she took objection. Ms Phillips treated those matters as further “complaints” against the applicant. After the interview, Ms Moore sent Ms Phillips an email particularising these additional complaints which she made against the applicant.
88 On 16 July 2014, Ms Phillips also interviewed Ms Dewhurst and Ms Featherstone.
89 On 17 July 2014, Ms Phillips sent Mr Murphy a draft of a letter which, she advised, should be sent to the applicant. The letter was sent to the applicant over Mr Murphy’s hand that day. It identified the following additional allegations that had been raised by Ms Moore:
• During a staff meeting last week you embarrassed Melanie in front of other staff members by advising Melanie that the meeting was not a “bitch fest”
• Rudely requested tasks to be completed
• Throwing a hat at Melanie’s legs demanding – “why the bloody hat was on the table”
• Talking about other staff members in a derogatory manner
• Talking to Melanie in a condescending manner in front of new parents
Calling the children “little fuckers” in front of other staff if they pulled a flower out of a bush.
In the letter, the applicant was asked, during her period of suspension, “… to refrain from contacting staff at the centre as they may be potential witnesses to the alleged incidents.” Mr Murphy’s letter concluded by advising the applicant that, given the “serious nature of these allegations”, an outcome of the investigation may be “disciplinary action that may include warnings or termination of employment”.
90 On the same day, the applicant responded to Mr Murphy’s letter, denying “these recent accusations” and making certain procedural requests in relation to the timing and organisation of her own interview with Ms Phillips. She was being legally advised at this point, and did not want to attend for interview until after she had spoken to her solicitor.
91 In arranging for the applicant to have her interview with Ms Phillips, Mr Murphy encountered some difficulty. In evidence is an email which he sent to the applicant on 21 July 2014, referring to a phone call to her which he had made that morning, but which had been taken by her partner, who informed Mr Murphy that the applicant did not wish to speak with him. In the email, Mr Murphy asked the applicant to contact Ms Phillips directly by the close of business the following day, to arrange a suitable time and venue.
92 Also on 21 July 2014, the applicant’s solicitor wrote to Mr Murphy, but the letter is not in evidence. By a further letter sent on 23 July, the solicitor said that the applicant was willing to meet the investigator, but required the respondent first to provide her with a copy of each of its disciplinary policy, grievance policy and “any documents relevant to the investigation including any witness statements”. The solicitor’s letter continued:
More generally, there is an inference from your actions over the past week that you are seeking to dismiss my client regardless. On Friday July 11 2014, Ms Hansen raised performance concerns regarding Ms Moore in writing and provided a copy to you. Ms Moore [sic] response was to immediately make a complaint against Ms Hansen. At least some of her allegations are clearly defamatory.
Rather than supporting Ms Hansen as a senior staff member, you immediately suspended her on July 14 thus sending a clear message to staff generally that Ms Hansen was guilty of serious misconduct and undermining her reputation and standing. Ms Moore is of course on holidays in the United States and thus there could be no imperative to suspend. On July 17, you sent Ms Hansen a further letter outlining additional allegations. You have also purported to forbid her from contacting staff which is obviously unreasonable as it prevents her from fully preparing her response.
Your conduct has clearly favoured Ms Moore over Ms Hansen.
If indeed your agenda is to terminate Ms Hansen’s employment, the sensible course for the Centre would be make her an offer to go. The alternative is likely to be costly and time-consuming litigation.
93 Ms Phillips interviewed the applicant on 24 July 2014. The allegations against the applicant had been organised in 10 paragraphs. Ms Phillips put each of them to the applicant, and noted her response. On the following day, Ms Phillips emailed to the applicant a document which set out the allegations together with her note of the applicant’s response to each one. The applicant settled that document, and returned it to Ms Phillips. The first four allegations in the document as settled, and the applicant’s responses to them, were as follows:
1. It is alleged that on Friday 11th July 2014 you requested a meeting with Melanie Moore in an angry manner.
What is an angry manner? That is difficult for me to respond to. I said to her that I would like to have a meeting with her. That is Melanie’s interpretation of my tone. I did request a meeting, as per my notes to Kevin Appendix 2. (I requested that I have a meeting with her. at the end of the session). I am not sure how that was interpreted as an angry manner. Firm but what is an angry manner? I said to Melanie that we needed to meet, in that level of voice. My voice was not raised or threatening tone. Children were present at the time; therefore I was not going to raise my voice. My voice was calm.
2. It is alleged that on Friday 11th July 2014, you refused Melanie’s requests to go home, as she was upset. Melanie wanted to make another time to meet with you, given her upset state.
She said nothing to me about making another time. She just said I am upset and I am going home. She wasn’t crying. She came out with her bag and said that she was upset, she was leaving.
3. It is alleged that on Friday 11th July 2014 you blocked the doorway and shouted at Melanie to prevent her from leaving. You then demanded that she go into the office.
What can I say? No, I was not between her and the doorway. I did not demand that she go into the office. I did not shout. I don’t shout at staff, I don’t shout in front of children. As I did state in my statement, Appendix 2, I said to her “calm down – we need to talk”. I put my hands on her upper arms. This is a strategy I use with children to calm them down.
4. It is alleged that on Friday 11th July 2014 you physically pushed Melanie, nearly knocking her over. “You continued to shout at Melanie, saying if she left she would get a formal written warning”.
No, to both allegations. I am gob smacked about the formal written warning. Never was that uttered to her. I certainly did not nearly push her over. I certainly did not nearly knock her over. Absolutely, categorically not. I am stumped. This is the first I have heard about the formal warning comment.
94 Over the ensuing days, Ms Phillips conducted a number of further interviews, and engaged in some correspondence with relevant people.
95 On 1 August 2014, Ms Phillips forwarded what she described as her “final report” to Mr Murphy. The cover page contained the following “Executive Summary”:
There were 10 allegations raised by Melanie Moore against Jo Hansen as part of this investigation process. Of the 10 allegations raised, 4 were proven, 3 were not proven and 3 were proven in part.
It should be noted that allegations 3 and 4, that were proven, are of a very serious nature, involving physical contact with Melanie.
If Jo’s behaviour is allowed to continue, it would amount to bullying under legislation and Policy. I am of the view that the employment relationship has broken down and Jo cannot return to the workplace while Melanie Moore remains employed there. The Centre needs to seek legal advice in this regard.
96 Section 9 of Ms Phillips’ report contained her findings in relation to each of the allegations made against the applicant. In making those findings, Ms Phillips used the “more likely than not” standard. The allegations, and the applicant’s responses to them, were taken directly from the document which the applicant settled on 25 July 2014 (see para 93 above). Dealing only with the four which are of direct relevance in this case, Ms Phillips found that the applicant’s tone had been firm, not angry, and that the first allegation was not, therefore, proven. She found that Ms Moore had been crying and upset, but she did not find that the applicant had refused Ms Moore’s request to go home or that Ms Moore had suggested making another time to meet with the applicant. Thus the second allegation was proven in part. Ms Phillips upheld the third and fourth allegations, on the basis of “direct witness evidence”.
97 Ms Phillips then turned to consider whether the applicant’s conduct, as proven, amounted to bullying within the terms of the FW Act. Her opinion was that, if the behaviour comprehended by the third and fourth allegations were allowed to continue, “it would be a potential breach of bullying” under that Act. She referred to comments by all the respondent’s employees whom she had interviewed about the applicant’s controlling and overpowering behaviour generally, adding her opinion that there had been “a complete breakdown in the employment relationship”, which could not be repaired by mediation or other means.
98 Ms Phillips made five recommendations, the second of which was:
The Committee should seek professional advice in relation to the ending of Jo’s employment or disciplinary action, primarily based on allegations 3 and 4 and the breakdown of the employment relationship.
According to a handwritten note made by Ms Phillips (the original of which is in evidence), Mr Murphy telephoned her on 1 August 2014. The note was, relevantly, “Kevin called asking why in the recommendations ‘termination’ was not included.” When Ms Phillips was under cross-examination, it was put to her that Mr Murphy had asked her to amend her report to include a recommendation that the applicant’s employment be terminated. Ms Phillips rejected that suggestion. She said that Mr Murphy’s concern was that, in respect of the advisability of termination, the report was not clear. It was, in Ms Phillips’ words, “too wishy-washy” in this area. Mr Murphy gave no evidence about this conversation in chief, and originally denied that he had received the report at all, because it was sent on a Friday, when he usually did not work. When taken to Ms Phillips’ note in cross-examination, however, Mr Murphy said that he could not recall the conversation. After some reflection made possible by an adjournment (and without any opportunity to consult his legal advisers), Mr Murphy told the court that he may have come into his office briefly on 1 August to collect the report. But he did not recall having done so. I find that Mr Murphy did receive the report on 1 August 2014, and that he telephoned Ms Phillips about it on the same day.
99 In response to Mr Murphy’s concerns expressed on 1 August 2014, Ms Phillips sent a second version of her report to him, at his private email address, on Sunday 3 August. In that version, her second recommendation was now expressed as follows:
The Committee should seek professional advice in relation to the ending of Jo’s employment or disciplinary action, primarily based on allegations 3 and 4 and the breakdown of the employment relationship. In the event that employment is ended it should be done in a procedurally fair manner. This would be our primary recommendation.
It will be noted that a third and fourth sentences have been added to this recommendation.
100 Mr Murphy was absent from work on 4 and 5 August 2014, on medical grounds. Nothing of any present relevance happened on those days.
101 At 11:31 am on 6 August 2014, Mr Murphy sent a copy of Ms Phillips’ report to Ms Balsillie at Jobs Australia, adding that he wanted to discuss it with her, and to discuss also “the process from here on”. From the times at which various otherwise trivial emails were sent, I infer that Mr Murphy and Ms Balsillie, and possibly others from Jobs Australia, met by teleconference some time after 12:30 pm that day. Probably the best evidence of what was said then is that contained in an email sent to Mr Murphy by Ms Balsillie at 4:23 pm that day:
Further to our discussion this afternoon with regard to the investigation report that was submitted in relation to the incident involving Jo Hansen.
We maintain our advice to you that we find the investigation report is quite confusing in part and does not lend itself in its current format to support you terminating Jo Hansen.
However, we have reviewed the interview transcripts particularly the transcript of Melissa Dewhurst date 16 July 2014 and note her specific statement with regard to the physical contact she witnessed being applied by Jo Hansen to Melanie ... Moore she states”
“Jo used force to mover [sic] her, using her hands to push her. She pushed her twice, Melanie stood her ground, didn’t push Jo back, Melanie didn’t react”.
We believe that this specific statement highlights the fact that Jo did in fact use force against Melanie. Therefore we suggest that the investigator include in the body of the report under the finding for Allegation 4:
Finding against fact – proven and supported by the statement made by Melissa Dewhurst on page 14 of the report where she states:
“Jo used force to mover [sic] her, using her hands to push her. She pushed her twice, Melanie stood her ground, didn’t push Jo back, Melanie didn’t react”.
This would certainly support you should you in [sic] terminating the services of Jo Hansen.
102 At some time after the teleconference with Ms Balsillie, but before her email at 4:23 pm, Mr Murphy telephoned Ms Phillips. Her note of the conversation which followed (a note, I infer, made some hours later) is in evidence. In part, the conversation related to two minor errors in the report received on 3 August. Nothing turns on them. According to Ms Phillips’ note, Mr Murphy said that he had had a meeting with Jobs Australia, and that they had said that there was “not enough to terminate”. They had asked why Ms Dewhurst’s statement was not included in the report. Ms Phillips told Mr Murphy that the statement was listed as supporting documentation in the report. She advised Mr Murphy to call Ms Nowacki to discuss the (presumably upcoming) meeting with the applicant, whatever decision he was to make.
103 Ms Phillips’ note proceeded to deal with things that were not, quite obviously, by way of a record of her conversation with Mr Murphy. She referred to his email sent at 4:55 pm that day, to which I shall turn next. She then referred to a telephone conversation which she had with Ms Nowacki at 8:00 pm that day. She said that she would call Mr Murphy the following morning “to explain rationale”. Ms Phillips’ note continues: “We felt that Kevin is looking for extra ‘ammo’ but allegations 3+4 are serious enough. May need to broker a deal with her about exiting the business.” Under cross-examination, Ms Phillips accepted that the “ammo” to which she referred in her notes was ammunition to justify a decision to terminate the applicant’s employment. She resisted the suggestion, put to her by counsel for the applicant, that, according to her understanding at the time, Mr Murphy had already made that decision.
104 At 4:55 pm on 6 August 2014, Mr Murphy sent an email to Ms Phillips, with a copy to Ms Nowacki, in which he said that he had “a couple of observations and questions”, namely:
In allegation 1 we say “requests a meeting in an angry manner” whereas our first letter to Jo states “meeting in a threatening manner” and Melaine’s [sic] complaint says she felt threatened. Jo talks about angry manner and then deflects to tone. I think there is a big difference between threatening and angry. Why was it changed to angry.
In allegation 2... I believe Melissa’s initial email does say “Jo went to the door and told her to go back to the office”; does this not support the allegation that initially she refused her request to go home. However you say not proven. Why?
Mr Murphy said that he wanted to discuss these matters with Ms Phillips and Ms Nowacki the following day.
105 Mr Murphy did speak with Ms Phillips on the morning of 7 August 2014. She was not prepared to make further changes to her report in consequence of the matters raised in Mr Murphy’s email sent at 4:55 pm the previous day. In her note of that conversation, Ms Phillips said, “Kevin has made the decision to terminate her.”
106 As a result of speaking to Mr Murphy on the morning of 7 August, however, Ms Phillips did change the Executive Summary on the cover of the report. It seems that Mr Murphy had stressed to her the importance of the Executive Summary reflecting what was in the report. As amended, the Executive Summary read:
There were 10 allegations raised by Melanie Moore against Jo Hansen as part of this investigation process. Of the 10 allegations raised, 4 were proven, 3 were not proven and 3 were proven in part.
Some of the allegations are behavioural in nature and are, on their own, not serious. However, two of the allegations, (allegations 3 and 4) which form the main allegations in this report, are very serious in nature and require immediate action by the Centre. This may entail termination of employment.
Both allegation 3 and 4 have taken place based on fact. These allegations involve physical contact and would allow Melanie to go to the Police and report the actions.
Allowing this type of physical violence in the workplace by a manager towards a staff member is a serious safety issue and is putting the safety of the staff at the Centre at risk.
107 Ms Phillips’ explanation for the change in the Executive Summary was that she had been told by Mr Murphy that Jobs Australia did not think there was initially enough in the report to justify a decision to terminate the applicant’s employment, and she took the view that that was because they “got caught up in all of the allegations rather than the two central or two principal serious allegations of 3 and 4.” To address that problem, Ms Phillips “adjusted the summary so that when they read the summary they could really just focus on those two serious … allegations.”
108 Under cross-examination, however, Ms Phillips accepted that, in the body of her report, there was nothing about “a serious safety issue … putting the safety of staff at the Centre at risk.” Nor was there anything to the effect that immediate action by the respondent was required. Ms Phillips accepted that her amended Executive Summary was not in fact a summary of her report. When she was asked how she could have written such an Executive Summary, she could not answer the question. But she rejected the suggestion that it was because Mr Murphy wanted things of this kind to be said to enable him to dismiss the applicant for misconduct. For his part, Mr Murphy insisted that he had nothing to do with the final terms of the Executive Summary beyond, as noted above, stressing the importance of the summary reflecting what was in the report itself.
109 At 12:36 pm on 7 August 2014, Mr Murphy sent Ms Balsillie a copy of the most recent version of Ms Phillips’ report, highlighting the fact that it had a revised Executive Summary. At 2:23 pm, Ms Balsillie replied to Mr Murphy in the following terms:
Further to our conversation this morning:
• As discussed yesterday you have [sic] the report changed to reflect the eye witness report in [sic] include in the body of the investigative report – the attachment to this email does not have those changes reflected.
• Organise communications to Jo directing her to attend a meeting at the workplace, you can attach a copy of the executive summary. Indicate again that Jo should be encouraged to use the services of a support person;
• At the meeting you will put the findings to Jo and provide her with another opportunity to provide additional information;
• You should further consider any information that she puts to you;
• If she has nothing to add, you will advise her that she is being terminated and the reasons for her termination;
Just to clarify, she was stood down on full pay pending the outcome of a full investigation – payment for this period is not to be treated as annual leave and deducted from entitlements. Likewise, she will receive additional an [sic] payment in lieu of notice as she was not summarily dismissed – this payment is in addition to her stand down salary.
At 12:52 pm on 8 August 2014, Mr Murphy forwarded that email to Ms Nowacki and Ms Phillips.
110 Also on 8 August 2014, Mr Murphy sent a letter to the applicant requesting her to attend a meeting on 13 August to put to her the findings of the investigator and to provide her with another opportunity to provide additional information. The Executive Summary to Ms Phillips’ report, in its latest form, was attached to the letter.
111 On 11 August 2014, Mr Murphy sent a copy of his letter to the applicant, with attachment, to Caroline Ryan, who was handling the matter at Jobs Australia in place of Ms Balsillie who had gone on leave. I infer that a telephone conversation between them followed, since, at 4:03 pm, Ms Ryan sent Mr Murphy an email setting out the applicant’s entitlements on termination. They included five weeks’ pay (from which I infer that Ms Ryan, at least, was not contemplating a summary termination) and accrued annual leave and annual leave loading. Ms Ryan’s email continued:
You will meet with Jo on Wednesday and go through the findings. Advise her that the proven allegations amount to serious misconduct and it is in your intention to terminate her employment. If she has any further response to make about the findings, she can make that response at the meeting or within 48 hours after the meeting.
A letter of termination will be prepared after you have received further information from Jo (if any).
112 However, at 3:59 pm on 11 August, and seemingly while Mr Murphy was on the telephone to Ms Ryan, the applicant’s solicitor sent a letter by email to Mr Murphy, informing him that the applicant was unwell, and enclosing a medical certificate which ran to 24 August. He said that the applicant would, in the circumstances, be unable to attend the meeting on 13 August. He asked Mr Murphy to supply the full report, to give the applicant a “genuine opportunity” to provide additional information, once she was well enough to do so. At 4:06 pm, Mr Murphy sent that email and letter to Ms Ryan, asking, “Where do we go now?”
113 Where Mr Murphy went was to reply to the applicant’s solicitor the following day. He said that his advice was to provide the applicant only with so much of Ms Phillips’ report as contained the findings made in relation to each allegation (the first four of which I have set out at para 93 above). That part of the report was attached to Mr Murphy’s email to the solicitor. The solicitor replied on 14 August 2014. He protested about the limited nature of the material which Mr Murphy had supplied. It was insufficient to enable the applicant to make a meaningful response. He said that it was “obviously possible” that the investigator had misunderstood the evidence, or that a witness had been untruthful, or had exaggerated the facts. He reminded Mr Murphy that the applicant had not been allowed to contact other staff, thereby precluding her from gathering evidence or witnesses in support of her position. He said that natural justice demanded that an employee be informed of the “evidence” (the solicitor’s inverted commas) and have a real opportunity to respond. He reiterated his request for a copy of the full report.
114 On 18 August 2014, Mr Murphy replied to the applicant’s solicitor, justifying his decision not to provide the full report, and maintaining his position as expressed in earlier correspondence.
115 On 21 August 2014, Mr Murphy wrote to the applicant, noting that her medical certificate had been extended to 7 September 2014. He requested her to attend a meeting on 8 September 2014, in place of that originally fixed for 13 August 2014.
116 A period of correspondence followed between the applicant’s solicitor and Mr Murphy. It related, largely, to the former’s insistence that the respondent should provide the whole of the investigator’s report. The only contribution of substance from Mr Murphy was his letter of 4 September 2014 in which he adhered to his position of not providing the full report to the applicant’s solicitor. He said that, in his view, the most serious allegations were those numbered 3 and 4. His letter continued:
We intend to make a decision in relation to the proven allegations, and we again offer Ms Hansen the opportunity to provide us with any further details that she feels may support her case.
My letter of the 21 August 2014 has previously advised a meeting at 2pm on Monday 8 September 2014 at our office in Mt Martha to put to Ms Hansen the findings of the investigator’s report and to provide Ms Hansen with another opportunity to provide additional information.
If Ms Hansen is not able to attend the above meeting, her further response can be made through you and either verbally or by way of a written submission by COB on 8 September 2014.
Please be advised that should Ms Hansen decide not to provide us with any further information we will make a decision in the absence of any further input from her.
117 Also on 4 September 2014, the applicant, through her solicitor, forwarded to Mr Murphy a further medical certificate, this time running until 14 September.
118 By letter to Mr Murphy dated 9 September 2014, the applicant’s solicitor reiterated his complaints about the applicant not having had access to the full report. The letter concluded:
You state in your letter of September 4 that if Ms Hansen does not provide you with any further information, you will make a decision.
If that remains your position then you will now make a decision thus allowing the truth of the allegations and the ‘witness evidence’ to be tested in another place.
On 12 September 2014 (the Friday before the expiration of the applicant’s then current medical certificate), the applicant’s solicitor emailed Mr Murphy, noting that he had not received a response to his letter of 9 September. He asked Mr Murphy to advise by the close of business that day (12 September) whether the suspension of the applicant imposed by the respondent’s letter of 14 July 2014 remained in force.
119 On the morning of 15 September 2014, Mr Murphy sent an email to Ms Ryan, to which he attached the applicant’s solicitor’s letter of 12 September. He asked Ms Ryan to confirm that, since the applicant’s absence from work was no longer covered by a medical certificate, she remained on suspension. He added that his committee was very unhappy to have to pay termination moneys, and asked whether the respondent was not within its rights to withhold payments of this kind, due to the reason for the termination of the applicant’s employment. By return email, Ms Ryan confirmed that the applicant was covered by her original suspension. She answered Mr Murphy’s second question in the affirmative: the respondent was within its rights to terminate without payment in lieu of notice; but, Ms Ryan added, a more pragmatic course which the respondent might favour – and the decision was its to make – would be to make a notice payment, thereby narrowing the area of disputation as to the legality of the dismissal.
120 By letter to the applicant dated 16 September 2014, the respondent terminated her employment summarily for serious misconduct, constituted by the conduct referred to in allegations numbered 3 and 4 in the investigator’s report.
THE APPLICANT’S CASE IN CONTRACT
121 I commence this section of my reasons by resolving the contested issues of fact about the events in the children’s room on 11 July 2014.
122 There are certain things which are effectively uncontroversial. First, Ms Moore was in a state of high nervous tension in the period immediately preceding her confrontation with the applicant. This had reached the point where she adjudged herself incapable of participating in what she anticipated would be a stern counselling session conducted by the applicant. Secondly, the applicant was in a state of frustration, which had been accumulating for some days, as to her inability to tie Ms Moore down to a specific time to conduct the meeting which she wanted, and needed, to have. The applicant’s state of mind apropos Ms Moore was not improved by her knowledge that, because of Ms Moore’s intended departure on leave the following Thursday, time was running out. Thirdly, whatever the rights and wrongs of the situation, the applicant was in fact frustrated by Ms Moore’s (unilateral, the applicant would say) alteration of her times of work. Ms Moore’s premature announcement on the afternoon of 11 July that she intended to go home, even before the time which would have balanced an early start that day, must have been the last straw for the applicant.
123 In this state of things, it is a mercy that the court has the assistance of someone who observed the confrontation between the applicant and Ms Moore and whose state of mind, at the time, was not affected by the emotions that beset the main protagonists as I have outlined them above. Ms Dewhurst was a good witness whose answers were measured in their content and carefully given. I accept the evidence set out in paras 62-63 above, and do not add to it. It was broadly consistent with Ms Dewhurst’s email to Mr Murphy sent on 15 July 2014. I reject the applicant’s evidence that she went no further than to place her hands on Ms Moore’s arms in a soothing way. That evidence was, I would hold, a self-serving reinterpretation of what actually occurred. But I also reject Ms Moore’s evidence that the applicant “launched” at her, that the applicant “sent [her] flying” and that the applicant “screamed” at her. This evidence was in more colourful terms even than those used in Ms Moore’s email to Mr Murphy sent later on the same day. As I would hold to be most likely, Ms Moore was, at the time, so emotionally sensitive to anything that the applicant might say or do that she tended to exaggeration in her perception of the events which occurred, and in her relating of them to others, whether it was Ms Featherstone or Mr Murphy.
124 The question which arises is whether the applicant’s conduct as I have found it to have been was sufficient to justify the summary termination of her employment. The relevant facts having been found, the respondent bears the onus of persuasion. Its case was that the applicant was guilty of serious misconduct. At the core of this allegation, of course, was the applicant’s assault on Ms Moore. But counsel for the respondents submitted that the whole course of the conduct in which the applicant engaged during her confrontation with Ms Moore should be taken into account. I did not understand counsel for the applicant to resist this approach. He did submit, however, that his client’s conduct had not been sufficiently serious to justify the summary termination of her employment.
125 It has recently been held by the Full Court that, in order to justify summary termination, it is not necessary for the employer to establish that the misconduct of the employee was such as amounted to a repudiation of the contract or its terms: Melbourne Stadiums Ltd v Sautner (2015) 317 ALR 665, 671, . In reaching that conclusion, their Honours appear to have been guided by what had been said by Gillard J in Rankin v Marine Power International Pty Ltd (2001) 107 IR 117, 143 at : “[I]t would be wrong to say … that the right to terminate only exists where the conduct of the employee demonstrates repudiation of the contract, manifesting an intention not to perform the contractual obligations in the future.” From all that appears, their Honours were not referred to the judgment of the Full Court of the Australian Industrial Court in North v Television Corporation Ltd (1976) 11 ALR 599, or to that of the Full Court of the Industrial Relations Court of Australia in Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 142 ALR 99, in each of which the principle enunciated in Laws v London Chronicle (Indicator Newspapers) Ltd  2 All ER 285, 287-289 was applied. In M Irving, The Contract of Employment, 2012, at pp 636-637, it is suggested that, at least on one view, there is no difference between termination for repudiation and termination for a serious breach of an intermediate term. If there is a difference between these situations, the present case is not the occasion to examine it: I was not addressed in anything like the detail that would provide a basis for such an examination. In argument, counsel for the respondents accepted that his task was to show that the applicant’s conduct on 11 July 2014 was repudiatory, but, in the light of Melbourne Stadiums, I consider that the only course open to the court is to recognise the existence of a species of non-repudiatory misconduct that is nonetheless sufficiently serious to justify summary termination. But it is clear from the cases that mere misconduct will not justify summary termination. It has been said that the misconduct must be “beyond all dispute a violation of, repugnant to and incompatible with the contract” (Irving, op cit, at p 640).
126 The respondents’ case was conducted on the silent assumption that the actual physical assault of a fellow-employee will inevitably be regarded as crossing that bar. But counsel for the respondents immediately accepted that physical contact which was no more than a technical assault – such as, for example, might have been the situation if the applicant had indeed gone no further than to place her hands on Ms Moore’s arms in a soothing manner – would not amount to misconduct of sufficient seriousness to justify summary termination. He accepted that a like conclusion would apply to quite forceful, even violent, physical contact if done with an unobjectionable motive, such as to save a fellow-employee from imminent danger. But he submitted that the present case was a long way distant from examples of these kinds. The physical contact which the applicant made with Ms Moore was wilful and aggressive. It could never be justified as a means of imposing the applicant’s will upon an uncooperative subordinate employee.
127 Counsel for the respondents was unable to refer me to a single Australian court judgment (and did not refer me to any other judgment) in which it was held, categorically, that the infliction of physical assault upon a fellow-employee would always be sufficient justification for summary termination of employment. This absence of categorical pronouncement on the subject has been confirmed by my own researches. By contrast, the question, when it has arisen, has tended to be answered by reference to all of the facts, most particularly those which provide context for the assault sought to be relied on. Nowadays, very little context would be needed for the conclusion reached in the old case of Atkin v Acton (1830) 4 Car & P 208. At the other extreme, in the cases which have arisen in the industrial tribunals, where the question has tended to be how an industrial dispute arising from the dismissal of an employee should best be settled, context has been everything: see such cases as Quinn v Australian Stevedoring Industry Authority (1960) 94 CAR 800, In re Dispute – Transfield Pty Ltd re Dismissal of Union Delegate  AR (NSW) 596 and Elcom v Electrical Trades Union (1983) 5 IR 267. Brackenridge was a case in which the sufficiency of an employee’s conduct as a justification for the summary termination of her employment arose squarely for decision (see 142 ALR at 104-109), and it was not the mere fact that the employee had assaulted another employee that led to the outcome (favourably to the employer): it was the primary Judge’s finding that it was the employee herself who aggressively initiated the confrontation in the course of which the assault occurred.
128 In the present case, there are certain considerations which favour the applicant’s case. First, on any view of the matter, Ms Moore’s announcement to the applicant that she was going home came some time before the end of her shift. Strictly, in that regard Ms Moore was leaving work early without permission to do so. For that reason if no other, the applicant was entitled to object to the course proposed. Secondly, the applicant was doing her job of providing supervision to Ms Moore as she understood it. Whatever else might be said of the applicant’s methods, it could not be denied that she was conscientiously attending to the interests of her employer. We have a situation, therefore, in which Ms Moore was doing something which she was not entitled to do, and the applicant – ignoring for the moment the methods she used – was doing her job as she perceived it. Thirdly, what occurred on 11 July 2014 was a true “spur of the moment” event. The applicant’s conduct towards Ms Moore had, of course, a degree of animus about it, but that was reactive rather than malicious or calculated. Fourthly, the applicant desisted from pushing Ms Moore when Ms Dewhurst told her to stop. Although this instruction was given twice, I could not be satisfied on the evidence that there was an intervening period in which the applicant, while mindful of Ms Dewhurst’s first instruction, continued to push Ms Moore until the second instruction was given. I think it more likely that, in the heat of the moment, everything was happening in rapid succession. And fifthly, the respondent had no instructions, protocols or guidelines for the conduct of employees towards each other that would be relevant to the events of 11 July 2014. The termination of the applicant’s employment could not, therefore, be justified on the basis that she was flouting an instruction or direction of her employer.
129 There are, however, two other circumstances which stand front and centre in the facts of the present case. The first is that this was not a physical altercation between two employees of coordinate standing in the workplace. The applicant was Ms Moore’s immediate supervisor. The other circumstance is that this was a very small workplace in size and staff numbers. It was not as though the applicant was employed at a certain level within a large organisation: she was employed as the coordinator of a small working group, and it is clear from the evidence that, in addition to her important administrative functions, in practice she worked in close cooperation with those whom she supervised. Ms Moore was one of them. The applicant was required to give the direction and guidance to Ms Moore that her supervisory position entailed. Correspondingly, Ms Moore was obliged to follow the instructions given by the applicant and, for the centre to operate efficiently, was assumed to have confidence in the applicant as a workplace leader.
130 In my view, when she imposed her will upon Ms Moore by physical means on 11 July 2014, the applicant compromised her ability thereafter to function as Ms Moore’s supervisor and leader. The position may have been otherwise if the applicant had, more or less immediately, recognised the mistake she had made and mended her fences with Ms Moore. But, far from taking that step, the applicant proceeded as though she had not acted as I have found she did. The situation, therefore, is one in which the applicant sought to impose her will on Ms Moore by physical means, and refused to recognise that this conduct was not acceptable. The supervision of Ms Moore was an important dimension of the applicant’s role, and she did, by her conduct on 11 July 2014, effectively disqualify herself from the future discharge of her responsibilities in that respect. One needs only to ask the question, “could the applicant and Ms Moore have worked normally, and productively, the following Monday?” for a negative answer to come both obviously and instantaneously. Although the applicant was, as I have held, acting reactively in relevant respects, and may have had the best interests of the respondent in mind, she crossed the line of permissible methods of supervision of a subordinate.
131 The applicant’s conduct was, in the respects outlined, repugnant to the contract between herself and the respondent. It was serious misconduct sufficient to justify the summary termination of her employment. I would hold, therefore, that, as a matter of contract, the respondent was entitled to terminate the applicant’s employment summarily when it purported to do so in its letter of 16 September 2014.
THE APPLICANT’S CASE UNDER PART 3-1 OF THE FW ACT
132 The applicant alleges that the respondent suspended her from her employment on 14 July 2014, denied her procedural and substantive fairness in the investigation which followed her suspension and in the determination of the allegations against her, and dismissed her from her employment without notice on 16 September 2014, in breach of s 340(1)(a)(ii) of the FW Act.
133 Section 340(1)(a)(ii) provides as follows:
(1) A person must not take adverse action against another person:
(a) because the other person:
(ii) has, or has not, exercised a workplace right; or
In her case under this provision, the applicant relies on the exercise of the workplace rights described in paras (a) and (c)(ii) of s 341(1), which provide as follows:
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(c) is able to make a complaint or inquiry:
(ii) if the person is an employee—in relation to his or her employment.
134 The dismissal of the applicant from her employment was adverse action within the meaning of item 1(a) in the table in s 342(1) of the FW Act. Likewise, counsel for the respondents accepted that the suspension of the applicant from work on 14 July 2014 was adverse action within the meaning of item 1(c) in the table. The remaining species of adverse action alleged by the applicant – denial of procedural and substantive fairness – is, of course, tendentiously expressed, and refers not to a concrete fact but to the characterisation of the course of the respondent’s conduct between about 14 July and about 16 September 2014. Whether that is a characterisation that should be made is an issue arising in another compartment of the applicant’s case, and I shall come to it below. I here note only that I would not accept, as an absolute proposition, that a denial of procedural fairness, of itself, necessarily amounts to either of the actions referred to in items 1(b) and (c) in the table.
135 With respect to s 341(1)(a) of the FW Act, the applicant contends that she had a “role or responsibility” under the relevant industrial agreement, namely, the Neighbourhood Houses and Learning Centres Workplace Agreement 2007 (“the industrial agreement”). By cl 11.1.1 of the industrial agreement, the classification structure was to be found in Sch 2 thereto. By cl 11.3.1, all employees were to be “classified in accordance with the descriptors appearing at Schedules 2A, 2B or 2C as appropriate”. In the case of the respondent, it was Part C of Sched 2 that was appropriate. Clause 1.2.6 of Part C was headed “Childrens’ Services Employee Level 6 – Director” and covered the applicant’s position.
136 Relevantly to the present matter, it was provided in cl 184.108.40.206.6 that a “director” was an employee who –
220.127.116.11.6. is appointed as the Director of a Service and is responsible for the overall management and administration of the service with the following additional indicative duties:
18.104.22.168.6.1. supervise the implementation of developmentally appropriate programs for children;
22.214.171.124.6.2. recruit staff in accordance with relevant regulations;
126.96.36.199.6.3. maintain day-to-day accounts and handle all administrative matters;
188.8.131.52.6.4. ensure that the centre or service adheres to all relevant regulations and statutory requirements;
184.108.40.206.6.5. ensure that the centre or service meets or exceeds quality assurance requirements;
220.127.116.11.6.6. liaise with families and outside agencies;
18.104.22.168.6.7. formulate and evaluate annual budgets;
22.214.171.124.6.8. liaise with management committees or proprietors as appropriate;
126.96.36.199.6.9. provide professional leadership and development to staff; and
188.8.131.52.6.10. develop and maintain policies and practices for the centre or service.
137 The applicant contends that, by reason of these provisions, she had a “role or responsibility” which included the responsibility for the overall management of children’s services, the implementation of programs, adherence to regulations and statutory requirements, the meeting of quality assurance requirements, liaison with families and the professional leadership and development of staff. She contends that she exercised that role or responsibility on 6 March 2013 and the days following by insisting that she would perform no duties other than those which fell within the classification of “director” under the industrial agreement (see paras 38-40 above).
138 It was submitted on behalf of the respondents that the reference to a role or responsibility under a workplace instrument (and on any view the industrial agreement was such an instrument) was to a role or responsibility given by the instrument, such as the role of representing employees under grievance procedures for which an instrument provides. It did not refer, it was submitted, to a role given by the relevant employer in relation to which the instrument did no more than to attach the appropriate rate, or scale, of remuneration. This submission should be accepted.
139 In my view, the ordinary meaning of s 341(1)(a) is that for which the respondents contend. By s 15AB(1)(a) of the Acts Interpretation Act 1901 (Cth), I am entitled to have recourse to the terms of the relevant Explanatory Memorandum to confirm that meaning. Those terms are as follows:
1364. The inclusion of ‘role or responsibility’ in paragraph 341(1)(a) is intended to provide protection for persons who perform a representative function in the workplace that is recognised under a workplace law, workplace instrument or order of an industrial body.
By contrast with provisions of the kind referred to in the Explanatory Memorandum, the provisions of the industrial agreement upon which the applicant relies identified the employees who were entitled to remuneration at particular levels, and did so, in some respects, by reference to their roles and responsibilities. That is to say, if an employer assigned certain roles and responsibilities to an employee, his or her remuneration under the industrial agreement would be such as related to those roles and responsibilities. They were not roles and responsibilities under the instrument.
140 To the extent that the applicant’s case relies on s 341(1)(a) of the FW Act, it must be rejected.
141 With respect to s 341(1)(c)(ii) of the FW Act, the applicant relies on her email to Ms Clarke on 22 May 2012 as a complaint in relation to her employment. The respondents accept that this email was such a complaint, but contend that it played no part in the decision to suspend the applicant or in the decision to terminate her employment. Here the commencing point is to recognise, as was common ground, that it was Mr Murphy who made both of those decisions. In the case of the decision to terminate the applicant’s employment, the applicant submitted that Mr Murphy actually made the decision on Monday 14 July 2014, and that everything which followed, including Ms Phillips’ investigation, was, in effect, no more than window dressing to give the appearance of due process. I reject that submission. The evidence is not such as would permit me to pinpoint the time at which Mr Murphy resolved, in his own mind, that the applicant should be dismissed, but I would find that this did not happen until he received the first version of Ms Phillips’ report at the earliest.
142 Mr Murphy denied that the applicant’s complaint of 22 May 2012 was a reason for his decision to suspend the applicant or later to dismiss her. I accept that denial. It is strongly consistent with the surrounding circumstances. I accept Mr Murphy’s evidence that he did not see the complaint until after the commencement of this proceeding. As I have attempted to demonstrate in my recitation of the facts above, that evidence too, unlikely though it may have seemed to counsel for the applicant, is consistent with the objective record. I allow for the possibility that Mr Murphy may have known, from a conversation at some unidentified point, that the applicant had made a complaint against him, but, from his perception, the whole issue about the interchange which he had with the applicant on 18 May 2012 was resolved at their meeting on 23 July 2012. True it may be that the applicant came away from that meeting with a sense that her complaint had not even been addressed – a circumstance in itself which supports Mr Murphy’s evidence that he was not aware of the complaint at the time – but it is Mr Murphy’s reasons with which I am now concerned, and it is his perception of the outcome of the meeting which matters. There followed a period of more than two years when the applicant was working in the organisation managed by Mr Murphy, a circumstance, of itself, which weakens the applicant’s inferential case in relation to Mr Murphy’s reasons in July-September 2014, and, correspondingly, makes his denials the more credible. Finally, there was, when the applicant was suspended and later dismissed, a specific reason for those actions which, it barely needs to be emphasised, provided an immediate and conspicuous justification for them.
143 To the extent that there was a denial of “procedural and substantive fairness” on the part of Mr Murphy to the disadvantage of the applicant which might be regarded as adverse action (and I would hold that there was not), nothing needs to be added to what I have said in the previous paragraph in relation to Mr Murphy’s reasons for acting in that way.
144 I find, therefore, that the adverse action taken against the applicant was not taken because she exercised her right to make a complaint in relation to her employment.
145 It follows that the applicant’s case under Pt 3-1 of the FW Act must be rejected.
THE APPLICANT’S CASE UNDER THE INDUSTRIAL AGREEMENT
146 The applicant contends that, in the way that it investigated her conduct of 11 July 2014 and subsequently dismissed her, the respondent was in breach of certain provisions of cl 9 of the industrial agreement.
147 The industrial agreement was not an “enterprise agreement” for the purposes of s 50 of the FW Act. From what appears, it was made as a multiple-business union collective agreement pursuant to ss 328 and 331 of the Workplace Relations Act 1996 (Cth). On the repeal of that Act in 2009, the industrial agreement became a “transitional instrument” by the operation of item 2(2)(c) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (“the FWTP Act”) and was continued in existence by the operation of item 2(1) of that schedule. The industrial agreement was an “agreement-based transitional instrument” under item 2(5)(b) of that schedule. By item 2(2) of Sch 16 to the FWTP Act, a person must not contravene a term of such an instrument. That subitem is a civil remedy provision to which the provisions of Pt 4-1 of the FW Act apply: see FWTP Act, Sch 16, item 16.
148 The provisions of the industrial agreement that are relevant to this aspect of the applicant’s case were:
9. DISCIPLINARY PROCEDURES
9.1 Where the employer has concerns about the work performance or conduct of an employee, the following procedure will apply.
9.2 The employee shall be advised of the alleged poor work performance or misconduct, that those concerns will be dealt with in accordance with these procedures, and that a possible outcome could be a disciplinary sanction such as termination of employment. The employee shall be provided with the opportunity to respond to any such allegations at a disciplinary meeting with the relevant supervisor. An employee subject to disciplinary proceedings may be assisted or represented in any disciplinary meeting by a support person of the employee’s choice from the workplace, such as a colleague, or other nominated representative.
9.3 The employee shall be treated at all times in accordance with the principles of natural justice. These principles include:
• the right to a fair hearing including adequate notice of what is alleged and a reasonable opportunity to respond to allegations, and
• the right to an unbiased process of judgement.
9.4 Nothing in this procedure shall restrict the employer’s right to summarily dismiss an employee in circumstances that warrant summary dismissal.
9.5 If the concerns are not adequately addressed at the initial disciplinary meeting, a warning may be issued. The employer shall notify the employee of the reason for the warning and detail the standards of performance and/or conduct expected. In the case of unsatisfactory performance the employer will also set a timeframe for a review of performance, and will consider reasonable measures to assist the employee to meet the required performance standards, such as mentoring or training as appropriate. The warning shall also state the consequences of not meeting the required standards of performance and/or conduct, such as further disciplinary action which could include termination of employment.
9.6 If the problem continues the matter will be discussed with the employee at a second disciplinary meeting.
9.7 In the case of unsatisfactory performance, if the concerns are not resolved at the second meeting, a second warning in writing will be given to the employee. Termination of employment for unsatisfactory performance at this stage may only occur in cases where the unsatisfactory performance has particularly serious consequences, such as placing the viability of the employer at risk or posing a serious safety risk.
9.8 In the case of misconduct, if the allegations of a recurrence of misconduct are not satisfactorily resolved at the second meeting, a second written warning may be given to the employee, or employment may be terminated, depending on the level of seriousness of the misconduct and any mitigating factors.
9.9 If the problem continues the matter will be discussed with the employee at a further disciplinary meeting. If the concerns are not resolved, the outcome may be a further warning or termination of employment. Nothing in this procedure shall prevent the employer from conducting further disciplinary meetings where the particular circumstances require it.
9.10 If after any warning a period of twelve months elapses without any further warning or action being required, all adverse reports relating to the warning must be removed from the employee’s personnel file.
9.11 Disciplinary Action
9.11.1 The outcome of a disciplinary procedure may include one of the following actions:
184.108.40.206 that the complaint may be dismissed and a letter to that effect be placed on the employee’s personal file;
220.127.116.11 that no action be taken;
18.104.22.168 that the employee be issued with a warning;
22.214.171.124 that the employee’s salary increment be withheld for up to one year;
126.96.36.199 that the employee be dismissed.
149 The first breach of cl 9 alleged by the applicant was a failure to observe cl 9.3 constituted by the denial of a right of a “fair hearing”, in that the respondent did not provide adequate notice of what was alleged against her and did not give her a reasonable opportunity to respond to the allegations. As I understand the applicant’s case, complaint is made of the respondent’s failure to provide the documents requested in the applicant’s solicitor’s letter of 23 July 2014 (see para 92 above), the instruction that the applicant should not make contact with other members of staff while she was suspended and the respondent’s refusal to provide the solicitor with a copy of Ms Phillips’ full report, as he had requested in August and September 2014.
150 It would, in my view, be a mistake to treat the obligation arising under cl 9 of the industrial agreement as effectively importing into an employer’s disciplinary process the whole gamut of procedures used in contested proceedings in a court, whether civil or criminal. It is a commonplace that the requirements of natural justice are flexible, adapting themselves to the circumstances in which a particular decision has to be made or a particular power exercised. The object of cl 9.3, in my view, was to ensure that an adverse disciplinary outcome was not visited upon an employee without giving him or her the opportunity to present his or her side of the story. It was not to allow him or her to embark upon his or her own investigation of the sufficiency of the employer’s decision-making processes. It would often be the case that information about the conduct of the employee in question would come to the attention of the employer from statements made by other employees. A process of the kind contemplated by cl 9.3 was not such as would entitle the employee under investigation to comb through these statements in a way that might (not always would) be his or her entitlement in a court. Rather, the process was one that would be satisfied if the substance of the allegations made against the employee were put to him or her, without material omissions or elaborations, so that he or she knew what it was that required a response. If the reason for disciplinary action involved primary documents (ie not merely documents created in the course of the investigation), there might, of course, be a strong case for them being made available to the employee; but the present case does not involve an issue of that kind, and I say nothing further about it.
151 In the present case, the applicant was interviewed by Ms Phillips on 24 July 2014. Further, it is as clear as may be that the respondent was anxious to hold a further interview with the applicant before it made a final decision about the future of her employment, but the applicant herself was never available for such an interview. The applicant was given particulars of the matters alleged against her, at least in respects that ultimately became relevant to the allegations that were upheld. She was provided with a copy of so much of Ms Phillips’ final report as contained the findings associated with those allegations. The steps taken by the respondent in these respects did, in my view, involve adequate notice to the applicant of what had been alleged against her and provided her with a reasonable opportunity to respond to the allegations. I would hold that the demands made in the applicant’s solicitor’s letter of 14 August 2014, referred to in para 113 above, overreached his client’s entitlement under cl 9.3, and that the respondent was under no obligation to comply with them.
152 The other contention made by the applicant with reference to cl 9.3 of the industrial agreement is that she was denied “an unbiased process of judgment” because, from the outset, Mr Murphy was set in his view that she had to be dismissed. I reject that contention. An employer faced with a decision whether to dismiss an employee is not like a judge or arbitrator. Often the person charged with making such a decision will be the very person who witnessed the misconduct which would provide grounds for dismissal. He or she may be the very person whose understanding of the particular employee’s precedents, with reference to performance, to conduct or to both, will bear centrally upon the decision to be made. To propose that the decision-maker should come to the process with an open mind would be to fly in the face of industrial reality. In context, what cl 9.3 means by “an unbiased process of judgment”, in my view, is a process in which the decision-maker is not improperly biased against the particular employee by reference to circumstances which are irrelevant to the subject-matter of the decision.
153 The accusation by the applicant’s solicitor, made in his letter of 23 July 2014, that Mr Murphy had “favoured Ms Moore over Ms Hansen” missed the point. Ms Moore’s derelictions involved her performance, and may well have been something at which the respondent would have wanted to look. But the allegations which Ms Moore made against the applicant had a seriousness in their own right, and did not merely sit on a set of notional scales, as it were, against the performance concerns that the applicant expressed with respect to Ms Moore. By the time that he wrote his letter to the applicant late in the afternoon of 14 July 2014, Mr Murphy had more than Ms Moore’s complaint: he had spoken both to Ms Dewhurst and to Ms Featherstone. That he might, by then, have come at least to a provisional state of concern that the applicant’s conduct might, if proven, lead to an adverse disciplinary outcome for her was no more than would be expected of a reasonable employer in that situation. Indeed, cl 9.2 of the industrial agreement contemplated that the responsible officer of the relevant employer would know enough to inform the employee that “a possible outcome could be a disciplinary sanction such as termination of employment.” That was, of course, exactly what Mr Murphy did in his letter to the applicant on 14 July 2014.
154 Mr Murphy might have interviewed the applicant then and there, but he took the course of holding himself apart from the investigation which he was advised to authorise. The investigation as such was conducted independently of Mr Murphy’s views about the applicant or her conduct. There could be no suggestion that Ms Phillips was biased against the applicant. It was put on behalf of the applicant, however, that, once Ms Phillips’ report was received, Mr Murphy, in effect, sought to massage her recommendations to make them point less equivocally to a termination of the applicant’s employment as the primary course for the respondent to take. The course of Mr Murphy’s communications with Jobs Australia and Working Together did, it must be said, provide some material for a submission along those lines. I would find, however, that Mr Murphy’s principal concern was to have a recommendation which pointed clearly to the course which the respondent should follow, albeit that the final decision in that regard would be his to take. The first version of Ms Phillips’ report, if I may so observe without disrespect, tended to shy away from any firm conclusion or recommendation, while at the same time leaving no doubt about the seriousness of the findings which she had made against the applicant. To say that the employment relationship had broken down and that the applicant could not return to the workplace while Ms Moore remained employed there, but to go no further in that regard than to advise the respondent to seek legal advice, left Mr Murphy in something of a quandary. The communications which he had with Jobs Australia and Working Together were his way of working out what he should actually do. At its highest, he was saying, in effect, if you think that we should dismiss this employee, please say so. In my view, the applicant was not denied an “unbiased process of judgment” within the meaning of cl 9.3 of the industrial agreement.
155 For the sake of completeness and to avoid any misunderstanding, I add that, in what I have written above, I imply no criticism of Ms Phillips for not having expressed a categorical view as to whether the applicant’s employment should be terminated for misconduct. She was an investigator and fact-finder, not a legal adviser. The result, however, was that her report inevitably left Mr Murphy some distance short of the position he needed to reach in order to decide what to do in the applicant’s case.
156 The applicant’s allegations of breaches of cl 9.3 of the industrial agreement must be rejected.
157 The other allegation which the applicant makes under cl 9 of the industrial agreement is to say that the respondent did not work through the procedures in cll 9.5-9.9 before it terminated her employment. That allegation is groundless. Those provisions had no application in the present case because the respondent exercised the right reserved to it under cl 9.4 to dismiss the applicant summarily.
158 The applicant next relies on cll 26.8.2 and 26.8.3 of the industrial agreement, which provided as follows:
26.8.2 Annual Leave Loading
In addition to the amount prescribed by 26.1, an annual leave loading of 17.5% shall be paid to an employee when proceeding on annual leave. Provided that, by agreement between the employer and a majority of employees, the annual leave loading may be paid once annually on a date fixed by agreement. Where leave loading is paid once annually, the remuneration for the purposes of calculating this loading is deemed to be the salary of the employee as at that agreed date.
26.8.3 The annual leave loading prescribed in this clause shall apply to proportionate payment of leave on termination of employment.
The applicant was not paid this loading when she received what were otherwise her entitlements on the termination of her employment. She was paid the loading on 22 April 2015, in circumstances explained in an email to her on that day from the respondent’s bookkeeper, in the following terms:
I have been advised that I did not pay leave loading when making the final payment to you last year. I apologize for this oversight.
Normally I would have paid the leave loading during the Christmas – New Year pays, but I did not think of this when making your payment back in September.
In accordance with this advice, attached is a pay advice confirming the payment today of the outstanding leave loading.
By then, the applicant had alleged in her Statement of Claim that she had not been paid the annual leave loading due to her on termination of employment, albeit that that allegation was tied to an inapplicable agreement. It was not until the applicant filed her Reply, on 19 April 2015, that she identified the industrial agreement as the instrument under which the entitlement arose. It is uncontroversial that the respondent was in breach of the above provisions of that agreement, and that it rectified that breach only once the applicant had filed the Reply.
159 For the above reasons, I uphold the applicant’s allegation that the respondent contravened the industrial agreement by failing to pay the annual leave loading to which she was entitled. I shall require the parties to file written submissions with respect to the penalty, if any, that should be imposed in relation to this contravention.
160 The next, and final, allegation which the applicant makes under the industrial agreement concerns cl 29.1 thereof, which is headed “Sick Leave”. The main operative provision, cl 29.1.1, provided that, “[i]n the event of an employee becoming sick and unfit for duty he/she shall be entitled to sick leave on full pay as follows ….” A scale of entitlements was set out: one day per month in the first year of service, 14 days in each of the second, third and fourth years of service, and 21 days in each year thereafter. There were provisions for the supply by the employee of a medical certificate, and certain exceptions to those provisions. In cl 29.1.4, it was provided as follows:
29.1.4 If the full period of sick leave as described above is not taken in any year, such portion as is not taken shall be cumulative from year to year.
161 The applicant did not contend that she had been denied sick leave on any occasion upon which she was entitled to it. Rather, the submission was made on her behalf that, in the respondent’s own payroll records, the unused sick leave to which the applicant would have been entitled had she been unwell was shown as less than it ought to have been under the clause. The submission that any such under-crediting of sick leave entitlements would have amounted to a breach of the industrial agreement must be rejected. Clause 29.1 was concerned only with an employee’s entitlement to leave when the qualifying conditions therefor were satisfied. The scale of entitlements in the clause set the maximum leave that was available to an employee in a particular year, subject to the process of accumulation for which cl 29.1.4 provided. If sick leave were denied to an employee when he or she was entitled to it, there would have been a breach of the provision. But the provision was not concerned with the accuracy of the records by which the employer kept track of the amount of leave which would be available to the employee if the qualifying conditions were satisfied.
THE APPLICANT’S CASE UNDER s 117 OF THE FW ACT
162 When she was dismissed from her employment by the respondent, the applicant had been in its employ for a little more than five years. She was over 45 years of age. Under s 117 of the FW Act, therefore, and subject to the exception to which I refer next, she was entitled to five weeks’ notice of the day of the termination. She was given no notice. Under these circumstances, the applicant contends that the respondent contravened s 117.
163 In its defence to the applicant’s case under s 117, the respondent relies on s 123(1)(b) of the FW Act, which provides that Div 11 of Pt 2-2, in which s 117 is to be found, does not apply to “an employee whose employment is terminated because of serious misconduct”. In s 12 of the FW Act, it is provided that the expression “serious misconduct” has the meaning prescribed by the regulations. By reg 1.07 of the Fair Work Regulations 2009 (Cth), “serious misconduct” has its “ordinary meaning”, and includes “wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment” and, unless the employee is able to show that the conduct for which he or she was dismissed was not conduct that made employment in the period of notice unreasonable, “assault”.
164 It follows from these provisions, and from the findings made above in relation to the applicant’s case on the contract, that the respondent has made good its defence that, by the operation of s 123(1)(b), s 117 did not apply to the termination of the applicant’s employment on 16 September 2014.
DISPOSITION OF THE PROCEEDING
165 It follows from the above that, save in relation to the delayed payment of annual leave loading on termination, the application must be dismissed.
Dated: 15 October 2015