[2011] FWA 5091

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The attached document replaces the document previously issued with the above code on 30 August 2011.

The document has been edited to correct typographical errors by replacing the word “Debarera” with the word “Dabarera.”

Dean Schubert

Associate to the Hon. Deputy President Sams, AM

Dated 30 August 2011

[2011] FWA 5091



Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Bianca Williams
Dtarawarra Pty Ltd t/a Dtarawarra Aboriginal Resource Unit



Application for unfair dismissal remedy - dismissal for misconduct - unacceptable behaviour - racist comments - allegations against supervisor - procedural fairness - dismissal not ‘harsh, unreasonable or unjust’.


[1] Ms Bianca Williams (‘the applicant’) was employed as a Case Worker / Tenant Advocate by Dtarawarra Pty Ltd t/a Dtarawarra Aboriginal Resource Unit (‘the respondent’) from 19 January 2009. She was dismissed on 5 November 2010, with two weeks’ pay in lieu of notice, in a letter which stated the reason/s for her dismissal as her failure to provide “a reasonable explanation or to recognise the seriousness of your conduct as identified in the letter forwarded to you on Aug 17 2010”.

[2] The 17 August 2010 letter had directed the applicant to attend a disciplinary meeting on 25 August 2010 (later postponed to 2 September 2010) which might result in disciplinary action, including termination in relation to three issues of concern, primarily related to the applicant’s dealings with the respondent’s Acting Co-ordinator, Ms Cheryl Corbett; namely:

[3] It was also said that her behaviour had forced Ms Corbett to seek medical advice and her doctor confirmed the enormous amount of stress she was under. Pending final resolution of the matter, the applicant was suspended on full pay. By letter dated 26 August 2010, the applicant’s Union, the United Services Union (‘the Union’), responded to the above allegations on the applicant’s behalf. The Union rejected items (a) and (b) above as not relating to the applicant’s conduct and rejected all of the respondent’s concerns as not relating to her performance.

[4] A disciplinary meeting at the Union’s office on 2 September 2010, was attended by the applicant, Ms Corbett, Ms Ruth de Costa (Director), Mr Thomas Russell and Mr Ben Thompson (from the Union). During the meeting, Ms de Costa handed the applicant a document which read as follows:

The matters listed below are provided to give Ms Bianca Williams the opportunity to respond:

I have serious concerns regarding your conduct and I must remind you that we are a small business that has limited human resources. Because of this and the number of complaints you have made over the 19 months of your employment we have suggested outside supervisions, mentoring which you have refused. We have requested that you write down your issues so that we can identigy strategies to make improvements but again you refuse to.

Both Cheryl Corbett and I have been in business for the last 16 years and have worked on and with Aboriginal Communities for the last 20 years. Ms Corbett has assisted with the development of a number of resources including Cross Cultural Packages and is fully aware of the horrific treatment which Aboriginal people suffered under the error of the Aboriginal Protection Board and the day of Mission Manager. And to referred to her has (sic) a “Mission Manager” is consider the most malicious term to someone that has not only devoted so much time to Aboriginal issues and community but to someone that’s work ethic is not that of a boss mentality.

[5] The meeting was adjourned at the Union’s insistence as it was said that these matters constituted new allegations which the applicant needed time to consider and respond to. The applicant responded to the above matters by generally rejecting all of them. She was subsequently dismissed on 5 November 2010.

[6] On 17 November 2010, the applicant lodged an application for an unfair dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 (‘the Act’). The matter was unable to be resolved during a telephone conciliation on 7 December 2010. Subsequently, the respondent filed an objection to the application on the basis that:


[7] The following persons gave evidence in the proceedings:

Ms Bianca Williams, the applicant

Mr Thomas Keith Everall Russell, Support Team Officer, United Services Union

Mr Ben John Thompson, United Services Union

Ms Ruth Simone de Costa, Director and Company Secretary, Dtarawarra Aboriginal Resource Unit

Ms Cheryl Corbett, Program Co-ordinator, Dtarawarra Aboriginal Resource Unit

Mr Tim Rowse, Professorial Fellow, Centre for Citizenship and Public Policy, University of Western Sydney

Applicant’s Evidence

[8] The applicant said that on a number of occasions during February and March 2010, the respondent’s then Co-ordinator, Ms Stacey Broadbent (with whom she was friendly) had told her, in Ms Corbett’s presence, that she would be recommending her to Ms de Costa for the Acting Co-ordinator’s position. On Ms Broadbent’s last day of work, she again told the applicant she would be recommending her for the acting role.

[9] On 22 April 2010, the applicant questioned Ms Corbett about the position and was told that Ms de Costa had an unsigned letter of complaint about the applicant, purportedly from Ms Broadbent. On 23 April 2010, when the applicant asked Ms de Costa how she should respond to the complaint, Ms de Costa told her that Ms Corbett had been successful in obtaining the Acting position. The applicant believed that as Ms Corbett and Ms de Costa were friends outside work and had had a business relationship for 20 years, that this relationship influenced the respondent’s decision to appoint Ms Corbett.

[10] The applicant said that she made numerous attempts to call and email Ms de Costa to discuss the acting position and the alleged complaint, but did not meet with her until 4 June 2010. The applicant said that Ms de Costa told her that the complaint was unsigned because she had prepared the letter herself after a verbal complaint from Ms Broadbent. The applicant acknowledged that this matter was not raised again after this meeting.

[11] The applicant said that soon after the Co-ordinator’s position was advertised, she had applied for the job and Mr Jim Allen, Co-ordinator of the Batemans Bay Service, agreed to be her referee. However, he had to withdraw, as he was on the interview panel. On 18 June 2010, the applicant was advised that her application was unsuccessful. The applicant believed that she was disadvantaged and unfairly treated, particularly as she was later informed that the successful candidate had superior references. The successful candidate decided not to take the position and Ms Corbett retained the Acting Co-ordinator’s role.

[12] The applicant claimed that Ms Corbett did certain things which made her work difficult. These included interrupting her while she was speaking to clients and identifying the applicant as receiving a client’s call when Ms Corbett had.

[13] On 20 July 2010, the applicant raised with Ms Corbett the issue of the log book not being in the work vehicle. Ms Corbett said the book had been removed due to damaged pages and would be available at the next scheduled staff meeting on 26 July 2010. At this meeting, the applicant complained that the minutes were taken in short hand and she did not agree with the minutes of the last meeting. The applicant said that Ms Corbett refused to have minutes taken in long hand and responded to subsequent questions and comments put by the applicant by grunting. In frustration, the applicant said ‘your actions are that of a real mission management mentality’.

[14] The applicant claimed that at the 2 September 2010 meeting, she apologised to Ms Corbett if she was offended by the reference to ‘mission manager’. The applicant said Ms de Costa then handed her a letter with new allegations. As a result, the Union put an end to the meeting as she would need more time to respond properly. Ms de Costa had replied that they (the respondent) would not be ‘participating in anything else.... that’s the end of it’.

[15] In November 2010, the position of Co-ordinator was re-advertised. The applicant claimed that she had a good work record and enjoyed good relationships with the clients of the Service.

[16] In oral evidence, the applicant believed that the 2 September 2010 meeting was for the purposes of mediation in order to work out a resolution of the workplace issues. She had apologised to Ms Corbett. She claimed she had only used the term ‘mission management’ on two occasions - once to Ms de Costa and again in the staff meeting on 26 July 2010. When she had said it to Ms de Costa the applicant claimed that she had not responded. The applicant said her understanding of the term ‘mission management’ could relate to anyone in authority who uses their authority for their own outcomes. The applicant said Ms Corbett did not have a discussion with her in relation to her performance or conduct prior to the 17 August 2010 letter.

[17] In cross-examination, the applicant acknowledged attending cross cultural training, which included the history of ‘mission managers’ as managers who were cruel and oppressive toward Aboriginal people.

[18] The applicant agreed she had a good relationship with Ms Corbett in the three years before she took on the Acting Co-ordinator’s role. She denied their relationship soured over Ms Corbett’s appointment. She believed their relationship changed after she had raised matters in the workplace which were not followed appropriately, and despite the issues being raised with Ms Corbett.

[19] In relation to the alleged unfair treatment over Mr Allen withdrawing as a referee, the applicant accepted that Mr Allen’s decision was not the responsibility of the respondent. However, she believed there may have been some ‘underlying issue’.

[20] In further oral evidence, the applicant agreed:

[21] In further evidence, the applicant denied:

[22] However, the applicant could not recall using the term ‘mission manager’ at the 12 July 2010 meeting, or whether Ms Corbett told her ‘I take offence to that’.

[23] Mr Thompson attended the 2 September 2010 meeting. He believed the applicant genuinely apologised to Ms Corbett early in the meeting for any offence caused by calling her a ‘mission manager’.

[24] Shortly thereafter, Ms de Costa told the applicant she considered her conduct constituted serious misconduct and handed her a letter. After reading the letter, the applicant said it contained new allegations which she and the Union had not been made aware of. Mr Thompson suggested that the meeting should end to allow the applicant an opportunity to respond to the new allegations.

[25] In oral evidence, Mr Thompson agreed that he attended the meeting to support the applicant, and was not an observer. He believed the letter given to the applicant contained new allegations and this was the reason for ending the meeting, in order for her to respond to them. He could not recall Ms de Costa telling him to contact the Department of Fair Trading to establish whether the Co-ordinator’s role was an Aboriginal identified position. He could not recall saying this was a significant issue for his client’s case. He had no further involvement in the matter.

[26] Mr Thompson conceded that the applicant did use the term ‘mission manager’ in the meeting, but only in the context of a discussion of its historical meaning. He could not recall if the applicant directed the term toward Ms Corbett.

[27] Mr Russell said that during 2 September 2010 meeting, the parties had discussed the applicant’s request to have minutes of staff meetings taken in long hand. She had apologised to Ms Corbett if she had taken offence to the use of the words ‘mission manager’.

[28] Mr Russell said that about half way through the meeting, Ms de Costa handed the applicant a document containing new allegations. She had not told the applicant or the Union that these allegations would be raised. The applicant reacted in such a way as to make it clear that she had had no notice of these new allegations. Mr Russell said that the applicant indicated that she did not want to deal with these new allegations at that time. However, Ms de Costa said that this would be the only meeting. Mr Thompson had said that the meeting should end so as to allow the applicant an opportunity to respond. However, Ms de Costa said ‘I want to get this over now’ and implied there would be no further meetings or discussions. As Ms de Costa was leaving she said ‘you’ll be hearing from my lawyer’.

[29] In oral evidence, Mr Russell deposed that the Union did not consider that the letter of 17 August 2010 raised issues of performance. It was the Union’s understanding that the meeting of 2 September 2010, was convened for the purpose of addressing unresolved matters from this letter. It was basically a good faith or goodwill meeting that would not have binding outcomes. He explained this in cross-examination by indicating that the Union convened the meeting as a mediation to assist the applicant, and the Union was not necessarily speaking on her behalf. He accepted that the respondent’s letter suspending the applicant did not refer to the proposed meeting as a mediation. However, the Union’s letter in reply had done so.

[30] Mr Russell believed the document given to the applicant in the meeting contained new allegations. He denied that the applicant had again called Ms Corbett a ‘mission manager’. He believed her apology was sincere as she had not apologised in a sarcastic manner. Her repetition of the phrase was simply when she was discussing the term’s definition.

[31] Mr Russell acknowledged that the Union had contributed to the delay in dealing with this matter - but only by eight days.

[32] In questioning from the Bench, Mr Russell was asked about the Union’s practice of arranging mediations. He accepted that the Union’s participation was in support of its member. He said that the applicant’s worksite was categorised as a ‘priority 3’ site (having fewer than five members). This meant that the employer was invited to the Union’s offices to discuss any problems, but the Union would otherwise be unable to support the member in further disciplinary proceedings. Mr Russell said that after the 2 September 2010 meeting had broken down, he expected the respondent would agree to its request for at least one further meeting to discuss any disciplinary outcomes.

Respondent’s Evidence

[33] Ms de Costa established the business in 1996. It only ever had a maximum of five employees. Ms Corbett had been a Director until 2007 and had been an employee in management since 1996. Ms de Costa said the respondent has no dedicated human resources manager; that function was undertaken by her.

[34] Ms de Costa said that in January 2010, Ms Broadbent spoke to her about the applicant’s aggressive tone and attitude towards Housing New South Wales staff and her concern as to what effect this behaviour would have on the respondent’s relationship with Housing New South Wales.

[35] In response to Ms Broadbent’s concerns, Ms de Costa said she had organised training in February 2010 for all staff on effective communication skills for advocates. In addition, all new employees attend cross-cultural training. The applicant attended this training on 17 March 2009. The training included reference to ‘mission managers’. Ms de Costa attached to her statement the respondent’s policies, induction kit, training agenda and training booklet.

[36] On 1 April 2010, Ms Broadbent told Ms de Costa that she had received an aggressive phone call from the applicant concerning underpayment of her holiday pay. Ms de Costa said she prepared a statement of Ms Broadbent’s account of what had happened and Ms Broadbent confirmed it was accurate. Ms Broadbent said she would sign the statement and return it to her. On 23 April 2010, Ms Broadbent sent Ms de Costa an email confirming she had posted a signed copy of her statement. However, it was not, and has not, been received.

[37] Ms de Costa said that on that same day, she had received an angry telephone call from the applicant in which she said that she and ‘Jenny’ had had an altercation and she needed to go on stress leave. The applicant also enquired about who would be filling the Acting Co-ordinator’s role. Ms de Costa told her Ms Corbett would be filling the role until the job was advertised, interviews held and the position filled. The applicant expressed concern about Ms Corbett taking on the role as a volunteer, but her meaning of this concern was unclear to Ms de Costa and she asked her to put any concerns in writing. The applicant did not do so and did not go on stress leave. Ms de Costa denied telling the applicant that Ms Corbett was volunteering in the Acting Co-ordinator’s role. Ms de Costa claimed that she was unaware of the applicant’s allegations of Ms Corbett’s interference in her work, until she had read the applicant’s statement in these proceedings.

[38] Ms de Costa claimed that she had planned to discuss the holiday pay phone call with the applicant, but due to a serious car accident and work commitments she could not do so until a staff meeting on 4 June 2010. In the interim, she had asked Ms Corbett to give the applicant a copy of Ms Broadbent’s unsigned statement. After discussing the matter at the staff meeting, no further action was taken over the phone call issue. Ms de Costa denied that Ms Broadbent had ever recommended the applicant as suitable for the Co-ordinator’s position. It was not an Aboriginal person identified position.

[39] Ms de Costa said that on 18 June 2010, she notified the applicant that she had been unsuccessful in her application for the Co-ordinator’s position. The applicant had then threatened to leave by the time Ms de Costa returned from long service leave as she had to ‘put up with Cheryl and her mission management style’. Ms de Costa did not respond to her. Between 18 June and 16 August 2010, Ms de Costa was on long service leave.

[40] Ms de Costa said that the respondent had no involvement in Mr Allen’s decision not to act as the applicant’s referee and, in any event, she had sufficient time to provide a replacement. She denied telling the applicant that the successful candidate was preferred partly because of his referees.

[41] The day after returning from leave, Ms Corbett told Ms de Costa that she was on sick leave because of the stress at work and that her doctor had told her not to return to work. She informed Ms de Costa that the applicant had called her a ‘mission manager’ or having a ‘mission management style’ on three occasions in July 2010 and she had been very offended. She had told the applicant she had been offended. Ms Corbett also told her of other concerns with the applicant’s conduct towards her during her absence. This conversation resulted in the applicant’s suspension on full pay. Ms de Costa added that on 19 August 2010, the applicant wrote to the Department of Fair Trading making complaints about a number of issues in respect to the respondent.

[42] Ms de Costa said that a formal disciplinary meeting had been scheduled for 25 August 2010, but had to be cancelled due to the unavailability of an independent chairperson. The meeting was rescheduled at the Union’s offices on 2 September 2010. Ms de Costa said her notes of this meeting record that the applicant had denied the term ‘mission manager’ was racist. She had used the term against Ms Corbett again during the meeting. At no time did the applicant apologise to Ms Corbett. Her notes also confirm that she was not happy when the meeting was brought to an end. She indicated she would be seeking legal advice because the matter was taking too long to resolve. However, she denied saying that she considered the matter was at an end.

[43] Ms de Costa denied that new allegations were brought against the applicant during the meeting. They were consistent with those raised in the 17 August 2010 letter and, in any event, the applicant had two later opportunities to respond to the allegations. Ms de Costa believed the Union had brought the matter to an end because it was confused about the reporting hierarchy at Greater Sydney Area Tenancy Service and had wanted to clarify this issue before progressing with the meeting. On 14 September 2010, Ms de Costa received an email from Mr Russell attaching the applicant’s response to the issues raised during the meeting.

[44] On 18 October 2010, Ms de Costa wrote to Mr Russell providing Ms Corbett’s comments to the applicant’s responses. The added time taken to do this was due to workload and her own health issues. On 28 October 2010, Ms de Costa received an email from Mr Russell attaching a further response from the applicant.

[45] Ms de Costa said she had carefully considered the applicant’s written responses and the 2 September 2010 meeting and concluded that the applicant had shown no remorse, particularly as she had referred to Ms Corbett as a ‘mission manager’ again during the meeting. She decided to dismiss the applicant for serious misconduct but, nevertheless, paid her two weeks’ in lieu of notice.

[46] Ms de Costa agreed that she and Ms Corbett had a long history of being in business together, but this relationship had nothing to do with the applicant’s employment, the disciplinary process or the decision to terminate her employment.

[47] Ms de Costa said she had a serious heart condition which meant that she should minimise stress. She had found working with the applicant stressful and she could not tolerate her aggressive attitude in the workplace. In these circumstances, she believed that reinstatement was inappropriate.

[48] In cross-examination, Ms de Costa explained that she had asked Ms Corbett to give the applicant Ms Broadbent’s unsigned complaint, because Ms Broadbent had told her, on a number of occasions, that she had signed it. She had believed that giving the complaint to the applicant would bring things out in the open and give them all a chance to discuss and resolve the matter.

[49] When questioned as to why she did not respond to the applicant’s use of the term ‘mission management’ on the first occasion, Ms de Costa deposed that she had not wanted to make a fuss and escalate the issues prior to her taking leave. In addition, she did not believe that the applicant would use the term directly to Ms Corbett. Ms de Costa acknowledged that she did not consider the applicant’s behaviour, at that stage, amounted to serious misconduct. Ms de Costa said she had not raised the applicant’s use of the term before the 17 August 2010 letter, because she had only been advised of Ms Corbett’s concerns, when she returned from leave.

[50] In her statement, Ms Corbett claimed the applicant had had issues with her previous employer, Tranby Aboriginal College, when they had both worked there. Nevertheless, Ms Corbett agreed she had recommended the applicant for her job with the respondent.

[51] Ms Corbett said that the applicant did not respond well to her being appointed as the Acting Co-ordinator. She had appeared upset and resentful. For example, on 12 July 2010, the applicant had confronted her about her role as Acting Co-ordinator and had said ‘you are like a mission manager’. When she took offense at the remark, the applicant responded with allegations that she had misused the respondent’s vehicle. The applicant had also described her as unprofessional and unqualified. Ms Corbett told her to put any allegations in writing. She believed the applicant was aggressive during this conversation and she well knew the significance of being called a ‘mission manager’. Again on 19 July 2010, the applicant was short and dismissive when Ms Corbett had asked her where the laptops were. The applicant had responded with ‘around the place’.

[52] On 20 July 2010, the applicant again accused Ms Corbett of misusing the vehicle and petrol card for personal use. She had demanded to see the log book, called her a ‘mission manager’ again and added ‘you have no right to be here’. Ms Corbett said she had felt bullied and harassed. The applicant had also followed her around the office and tried to stand close to her. Ms Corbett believed this behaviour was very intimidating and she had not felt safe.

[53] Ms Corbett indicated that she occasionally used the work vehicle on the weekends. However, this was in accordance with the respondent’s policy. She had recorded her use of the vehicle and paid for the petrol herself.

[54] At the monthly staff meeting on 26 July 2010, when the applicant complained about the minutes being taken in short hand, Ms Corbett told her that she could take responsibility for taking the minutes in long hand. (Ms Corbett had a hand injury which prevented her taking notes in long hand.) The applicant had remarked ‘you are unbelievable’. The applicant had accused her, by implication, of improperly dealing with the purchase of Apple computers for the office from a friend. The applicant accused her of using the Acting Co-ordinator’s position for her own benefit and had said somebody else should have been hired. She mentioned ‘mission management’ again and had said an Aboriginal person should have been employed. She further alleged that Ms Corbett had taken the vehicle log book home to change the entries in order to ‘cover up’ the personal use of the vehicle. In addition, she alleged that Ms Corbett had typed up her own letter of appointment which Ms de Costa was probably aware of. She had continued to say ‘you shouldn’t even be here’.

[55] Ms Corbett found this meeting stressful and offensive. She had felt weak and unwell and had a ‘burning headache’. When she consulted her doctor, she was diagnosed with high blood pressure and was directed not to go back to work while the applicant was at the workplace. She was referred to a heart specialist for further testing and certified unfit for work until 20 August 2010.

[56] Ms Corbett also referred to an email exchange with the applicant on 4 August 2010, in which the applicant accused her of ‘dictating’ to her. Ms Corbett said she had spoken to Ms de Costa about the applicant’s behaviour around 17 August 2010.

[57] Ms Corbett gave her version of events of the 2 September 2010 meeting. The applicant had not apologised to her then, or ever, for using the term ‘mission manager’. She had accused Ms Corbett of being unprofessional and unqualified. Ms Corbett denied interrupting or acting aggressively towards the applicant at the meeting. She agreed she had queried the applicant’s qualifications, but not in a derogatory way. When the Union closed the meeting, it was agreed that the applicant would respond in writing to the allegations of misconduct. Ms de Costa had never said the matter was closed.

[58] Ms Corbett said that Ms Broadbent had never recommended the applicant to her for the Acting Co-ordinator’s position and she had no knowledge of Ms Broadbent ever making such a recommendation to Ms de Costa. Ms Corbett denied that she had ever deliberately interrupted the applicant or interfered with her work.

[59] Ms Corbett denied her friendship and business relationship with Ms de Costa had any effect on the applicant’s employment. She had not been consulted about the decision to terminate the applicant’s employment. Ms Corbett continues to work for the respondent and believes that she could never work with the applicant again. She felt the applicant’s comments had denigrated her and affected her confidence. She had felt anxious and was not enjoying her work. She could not take any further abuse from the applicant and did not think she could work in the applicant’s team.

[60] In cross-examination, Ms Corbett deposed that she did not:

[61] Mr Rowse has researched and written about Aboriginal indigenous history since 1981. He said that when used by an Aboriginal person, the term ‘mission manager’ would ordinarily have negative connotations. This arose from the historical context from which the term is derived. Mr Rowse concluded:


For the applicant

[62] It was Ms N Dabarera’s submission that the applicant’s dismissal was inconsistent with the Code in that the dismissal was not a summary dismissal (she was paid in lieu of notice) and the respondent must give the employee a reason why she was at risk of being dismissed and the reason must be a valid reason.

[63] Ms Dabarera said that the three allegations noted in the 17 August 2010 letter were vague and undefined and were therefore not a valid reason for the dismissal. The applicant was not given an opportunity to improve her behaviour because she was placed on immediate suspension after receiving the 17 August 2010 letter: see Dianna Smith v Fitzgerald [2011] FWAFB 1422. Rectifying her behaviour might include additional training and ensuring she understood the respondent’s expectations. The applicant was willing to take steps to rectify her behaviour by apologising for the ‘mission management’ comment. Ms Dabarera added that Ms Broadbent’s complaint was never handled properly or allowed to be addressed by the applicant.

[64] In further submissions, Ms Dabarera said that serious misconduct must be “significantly worse than negligence and serious in its culpable quality as misconduct, as distinct from the results”: see Jarvis v Anderson Plumbing & Roofing Pty Limited [2010] FWA 8896 at para 10. She said the respondent’s own conduct was inconsistent with the applicant having engaged in serious misconduct, in that:

[65] Ms Dabarera noted that the respondent did not inform the applicant, until the 17 August 2010 letter, that her conduct constituted serious misconduct and that a repeat might result in disciplinary action, including termination of employment. Ms Dabarera noted that the applicant was not told that her dismissal was for an unwillingness to follow directions or for bullying. There was not enough detail to enable her to respond effectively. She was therefore not provided with an opportunity to respond to these allegations: see Rapp v Wauchope RSL Club Ltd [1995] NSWIRComm 233.

[66] Ms Dabarera put that the applicant had a right to raise issues about the minutes being taken in short hand, requesting to see the vehicle log book and raise questions about whether the respondent’s policies were being followed.

[67] As to the matters in s 387 of the Act, Ms Dabarera submitted as follows:

[68] The applicant sought reinstatement with no loss of continuity and payment for lost wages. In the alternative, maximum compensation should be ordered by FWA.

For the respondent

[69] Mr J Pomeroy raised no jurisdictional issues in respect to this case. He contended that the applicant was dismissed for:

He noted that the applicant had provided written responses to the allegations on 14 September and 28 October 2010.

[70] Mr Pomeroy submitted that the applicant’s dismissal was consistent with the Code in that:

[71] In addition, Mr Pomeroy said the applicant’s dismissal was not ‘harsh, unreasonable or unjust’ in that:

[72] Mr Pomeroy put that the application should be dismissed. However, if FWA found to the contrary, reinstatement was inappropriate given the small workplace and the applicant’s interaction with Ms Corbett.

[73] Mr Pomeroy further submitted that pay in lieu of notice does not mean that the reason for dismissal could not be misconduct: see Murray v Electric Light Hotel [2010] FWA 2613. In any event, the respondent’s actions were not inconsistent with summary dismissal. That is, Ms de Costa was overseas on long service leave for some time and Ms Corbett was Acting Co-ordinator. She could not brief Ms de Costa until her return and Ms de Costa acted almost immediately upon being informed of the applicant’s behaviour.

[74] Mr Pomeroy submitted that the applicant’s conduct could not be understated and arose soon after her unsuccessful application for the Acting Co-ordinator’s position. She thereupon engaged in a deliberate course of harassment, intimidation and derogatory language at various times in July 2010. This was in the context of telling Ms de Costa ‘I may not be around when you return from long service leave’. Mr Pomeroy maintained that the patterns of consistency of the applicant’s abuse, in the face of Ms Corbett’s objections, entitled the respondent to dismiss her summarily.

[75] In closing submissions, Mr Pomeroy put that from the time Ms Corbett took up the Acting Co-ordinator’s role, the applicant was not prepared to accept her authority, nor her word. She contested the validity of Ms Corbett’s appointment and then, over the course of the next four months, refused on numerous occasions to accept her authority. She had raised various unfounded allegations, such as improper treatment of a computer contract, misuse of the respondent’s vehicle and petrol card and whether Ms Corbett was a proper person for the Acting Co-ordinator’s role.

[76] Mr Pomeroy said that Ms Corbett was subject to personal abuse by the use of the term ‘mission manager’, which, while not being racist, was one of the highest insults in Aboriginal culture. The applicant used the term knowing exactly what it meant. Mr Rowse’s uncontested evidence confirmed how offensive the term was. By its repeated use in the face of cross cultural training and the applicant’s personal knowledge, the applicant compounded her misconduct.

[77] Mr Pomeroy submitted that there were no issues of procedural unfairness. The 17 August 2010 letter set out the disciplinary process, the Union was involved at all relevant times and the applicant had three opportunities to respond to the allegations, and did so with advice. The allegations were not vague or imprecise. As the applicant had responded directly to them, she must have known what they entailed.

[78] Mr Pomeroy observed that the applicant had not sought to mitigate her loss, given she had only applied for one position since 5 November 2010. He said that reinstatement would be inappropriate, in that Ms Corbett still works part time and the applicant’s position had been filled. Mr Pomeroy conceded that ‘bullying’ had not been given as a reason for dismissal, but some of her conduct could easily fit that description. He also acknowledged that the fact the applicant’s position had been filled was not an insurmountable barrier to reinstatement, should FWA consider it appropriate.


The legislation and relevant principles

[79] There is no dispute that:

[80] Some controversy arose in this case as to whether the Code was appropriately applied to the applicant’s dismissal. The Code provides:

[81] I respectfully agree with Asbury C’s characterisation of the effect of the Code in context with the objects of the Act, which she referred to in Jarvis v Anderson Plumbing & Roofing Pty Limited, at par [9]:

[82] The respondent argued that the applicant was dismissed for serious misconduct and consequently the notice and warning provisions of the Code did not apply. Of course, the applicant was not summarily dismissed, but dismissed with pay in lieu of notice. However, the fact that two weeks’ wages were paid in lieu of notice, does not detract from the common proposition, that an employee can be dismissed for misconduct and paid any amount in lieu of notice, or such other gratuity, as the employer might be minded to make. On one view, where there is payment in lieu of notice, as occurred here, means a dismissed employee receives payments to which he/she might not otherwise be entitled. There can be no basis for criticising an employer for doing so. Nevertheless, for the reasons I shall later develop, I accept that the applicant’s dismissal was for serious misconduct. Consequently, the provisions in the Code in respect to notice and warnings are not relevant. In any event, the applicant had received a warning in the 17 August 2010 letter and had, despite Ms Dabarera’s submission, been given an opportunity to improve her behaviour. While she was not at work after 17 August 2010, she was given an opportunity to improve her behaviour, namely, her attitude to Ms Corbett at the meeting on 2 September 2010. She not only squandered this opportunity, but reinforced her misconduct by referring again to Ms Corbett’s ‘mission management’ style. In my view, her subsequent written responses were argumentative, self-serving and offered not a skerrick of remorse for her unfounded allegations against Ms Corbett or the continued offensive reference to her ‘mission management’ style. As I said in Karen Albert v Techni-Clean Australia [2011] FWA 2665, the obvious reason why warnings are given are to hopefully stimulate a change in behaviour or conduct. From my reading of the applicant’s responses, there was little the applicant put which would give the respondent any encouragement or comfort that the applicant would alter her attitude to Ms Corbett if she was returned to the workplace. That the respondent was perfectly entitled to come to that conclusion was reinforced further by its own decision to ignore Ms Broadbent’s complaint in early 2010 and ‘put it behind them’. Despite this ‘olive branch’ the applicant’s antagonism towards Ms Corbett intensified.

[83] Ms Dabarera put that in the Code’s Checklist the respondent had said the applicant was dismissed, inter alia, for unwillingness to follow directions and bullying. As these two matters were not addressed in any of the correspondence from the respondent, then the applicant obviously had no opportunity to properly respond. In my view, Ms Dabarera places too much reliance on the Code’s Checklist and her assumptions about the significance of the Checklist are misconceived. It is no more, and no less, than what it says it is - a checklist. It is to assist a small business employer in properly dealing with the dismissal of an employee. Indeed, there is no requirement that the Checklist is to be provided to the dismissed employee. The critical documentation in this case, is the letter of 17 August 2010, the document provided in the 2 September 2010 meeting and the letter of termination. In any event, there can be no doubt that the applicant knew precisely what the reasons for her dismissal were. Even so, I agree with Mr Pomeroy that some of the applicant’s conduct could well be characterised as ‘bullying’. Given these circumstances, there can be no denial of procedural fairness arising from a distinction between what the notified reasons for dismissal were and what was written in the Checklist.

[84] In addition, I see no merit in Ms Dabarera’s submission that the applicant was given no opportunity to improve or correct her behaviour and, therefore, the respondent was in breach of the Code. In any event, a breach of the Code might not necessarily invalidate the respondent’s decision to dismiss the applicant. I need not develop this proposition any further, because, as I said before, the warning provisions of the Code were not applicable in this case.

[85] While the term ‘serious misconduct’ in the Code is not associated with the descriptor of ‘wilful’, wilful or deliberate behaviour is to be found as one of the definitions of serious misconduct in the Regulations to the Act. Regulation 1.07, is expressed as follows:

[86] It seems tolerably clear that the respondent relies on 2(a) above which refers to ‘wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment’. Given this is also a commonly understood meaning of ‘serious misconduct’, I refer to what I said recently on this point in Siriwardana Dissanayake v Busways Blacktown Pty Ltd [2011] FWA 3549. At paras [88] to[ 92], I said:

[87] Turning now to the criteria for establishing whether the applicant’s dismissal was ‘harsh, unreasonable or unjust’, s 387 of the Act mandates the matters FWA is to have regard to in determining this question. These are:

[88] The frequently quoted authority as to the meaning of ‘harsh, unjust and unreasonable’ in an industrial context, is that of the High Court in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, where McHugh and Gummow JJ said:

[89] The Full Bench in Magers above (par [13]) cited with approval the meaning of ‘valid reason’ as expressed by North J in Selvachandran v Peterson Plastics Pty Ltd, at 373:

[90] Ms Dabarera raised a number of matters which, she submitted, had demonstrated that the applicant was denied procedural fairness. Subclauses (b), (c), (d) and (e) of s 387 of the Act relevantly deal with issues surrounding procedural fairness when an employer dismisses an employee. The High Court in Byrne & Frew v Australian Airlines Ltd spoke of ‘unfair procedures’ being ‘arbitrary, irrational or unreasonable’ when it said:

[91] Moore J said in Wadey v YMCA Canberra [1996] IRCA 568, 12 November 1996, that an employee has a right to know the nature of the allegations being made and have an opportunity to defend him or herself:

[92] However, two other questions arise in circumstances where procedural faults are established; firstly, did the seriousness of the misconduct outweigh any procedural faults and, secondly, would the procedural faults have affected or altered the ultimate outcome of dismissal? In this respect, I refer to what I recently said in Batterham and others v Dairy Farmers Ltd t/a Dairy Farmers [2011] FWA 1230, at par 274:

[93] I would also respectfully adopt the views of Lacey SDP in De Silva v Exxon Mobil Australia Pty Ltd [PR910623], where his Honour said at par [75]:

[94] Another important consideration arises in cases of unfair dismissals under the Act. This is the principle found at s 381(2) of the Act, as follows:

[95] Ms Dabarera relied on the decision of Rapp v Wauhope RSL Club Ltd. There are no similarities in the facts and circumstances in Rapp to the facts and circumstances of this case. Mr Rapp was never informed of the complaints made against him or their terms and was never asked to respond to the complaints before he was dismissed. That is not the position here. (Similarly with the decision of Johnson v Catholic Education Office, Diocese of Parramatta [1998] NSWIRComm 446.)

The real issue

[96] In my opinion, this case represents a classic illustration of a disgruntled employee who, having missed out on a promotional opportunity, then seeks to unreasonably and vindictively undermine the successful candidate. What usually follows is that the disgruntled employee’s manifestation of unhappiness turns into a campaign of resistance against the employer and petty nitpicking about insignificant matters. Ultimately, of course, the outcome of these distractions is a failure of performance or, more seriously, allegations of misconduct against the disgruntled employee. That said, I have no doubt that the applicant was very unhappy and resented not being appointed to the Acting Co-ordinator’s position. That this was so is no more aptly demonstrated than when she told Ms de Costa that she might not be around when she returned from long service leave. Her attitude and conduct towards Ms Corbett was entirely consistent with this resentment. Nevertheless, her conduct was a completely unreasonable and unnecessary reaction which, in hindsight, was most unwise.

[97] In addition, I do not accept that it was reasonable for the applicant to be upset about the referee issue or the unsigned letter of complaint. Firstly, given that the withdrawal of Mr Allen from being her referee (which was entirely appropriate in the circumstances) was a matter completely beyond the respondent’s control, it was unreasonable and illogical for her to blame the respondent for Mr Allen’s withdrawal. In any event, I fail to see how the withdrawal of a referee for a job application, amounts to unfair treatment or disadvantage. It was a very long bow to draw. Secondly, on the applicant’s own evidence, the unsigned complaint was not pursued by the respondent after 4 June 2010. She agreed Ms de Costa had said ‘Let’s put it behind us and have a fresh start’. In these circumstances, I do not understand how it remained an issue for the applicant subsequently.

Findings on the evidence

[98] Much of the evidence in this matter was uncontested. However, where the applicant’s evidence differs from that of Ms de Costa and Ms Corbett’s, it is their evidence which I prefer. Specifically, I accept:

[99] Further, I do not accept that the applicant was recommended by Ms Broadbent to Ms de Costa for the position of Acting Co-ordinator. Both Ms de Costa and Ms Corbett denied she did so. Given Ms Broadbent’s criticisms of the applicant (which I accept were untested in an evidentiary sense), it is difficult to reconcile Ms Broadbent doing so. It makes no sense. In any event, not much turns on this evidence.

Reasons for dismissal

[100] There can be little doubt that the applicant’s use of the term ‘mission manager’ to describe Ms Corbett was the highest form of derision, hurt and offence for any person. I accept Mr Rowse’s expert evidence, that given the historical context from which the term derived, ‘mission manager,’ when used by an Aboriginal person, is plainly intended to have a negative connotation. In my view, the applicant’s intentions were perfectly clear. She had intended to be hurtful and offensive when she used this expression. Had the term only been used once in the ‘heat of the moment’, one might give the applicant the benefit of the doubt. However, given it was stated more than once, even after she claimed to have apologised to Ms Corbett for doing so, I cannot accept the applicant was genuinely contrite about the comment. Moreover, I do not accept that the applicant was genuinely sorry for using the term in respect to Ms Corbett. On her own evidence, she had apologised if she had offended Ms Corbett. This was not an apology for using the expression, but an apology if Ms Corbett was offended by it. Her so-called apology could only be described as weak and disingenuous.

[101] In addition to using the term ‘mission manager’ three times to describe Ms Corbett, the applicant was dismissed for a range of other reasons; including:

[102] Given this level of hostility and disrespect from a subordinate, it is unsurprising that Ms Corbett felt stressed and anxious about her work and needed time off. This was not just a case of an employee exercising her rights at the workplace or holding strong independent views, contrary to those of management. In my assessment, there was no legitimacy to any of the applicant’s complaints against Ms Corbett. This is so for the following reasons:

[103] Firstly, a failure by Ms Corbett to take minutes in long hand was not only a piddling and impertinent complaint, but was entirely misguided and stupid.

[104] Secondly, the applicant was impertinent and disrespectful when she queried Ms Corbett’s use of the work vehicle and petrol card, particularly given her knowledge of Ms Corbett’s right to use the vehicle for personal reasons. This was an undeserving and improper accusation against Ms Corbett. It is little wonder Ms Corbett took offence to an accusation of what amounted to corrupt conduct.

[105] Thirdly, the applicant accused Ms Corbett of impropriety in respect to the purchase of Apple computers from a friend of hers. There was not a scrap of evidence to support this claim. Her belief was based on nothing more than her own vindictiveness and determination to make any allegation against Ms Corbett no matter how fanciful, hurtful or absurd.

[106] In my view, the applicant’s campaign against Ms Corbett was deplorable and utterly unjustified. She should be ashamed of herself. Her behaviour and conduct towards her supervisor was unacceptable and intolerable. It amounted to serious misconduct. In these circumstances, I am satisfied that the Code’s procedures did not apply and, further, that the applicant’s misconduct amounted to a valid reason for her dismissal. Moreover, I am comfortably satisfied that the applicant’s ongoing conduct was inconsistent with the continuation of the contract of employment. (see para 86 above)

Procedural Issues

[107] As to the claims of procedural unfairness, I do not accept that the respondent raised new allegations against the applicant at the meeting on 2 September 2010. An objective reading of the 17 August 2010 letter and the letter given to her at the meeting, reveals an entirely consistent set of related events, about which the applicant would have been fully aware. Indeed, she responded in some detail to all of the allegations, without making any concessions or admissions. It is important not to lose sight of the fact that the applicant responded to all of the issues raised by the respondent in both its letters of 17 August 2010, and in the meeting of 2 September 2010. Indeed, she did so in scrupulous detail, not once, but twice after the 2 September 2010 meeting and with the support of her Union. Given these facts, it is difficult to sustain an argument that the applicant’s dismissal involved a denial of procedural fairness or a denial of natural justice.

[108] The applicant criticised the respondent for the delay in handling and concluding the issues resulting in her dismissal. Putting aside Ms Broadbent’s complaint, which ultimately was not taken into account by the respondent, the disciplinary process effectively commenced on 17 August 2010, when she was suspended and informed of the allegations. The date of dismissal was 5 November 2010. Objectively, this time period might seem excessive. However, a number of factors contributed to the delay:

[109] Notwithstanding the delay, the applicant was on full pay during the entire period and therefore suffered no financial detriment. While I accept the matter should have been resolved in a more timely fashion, I do not consider, given the above factors, that the Union has established any procedural faults of such significance as to have affected the outcome of the disciplinary process or which resulted in the applicant having suffered an incurable injustice.


[110] Earlier I found that there was a valid reason/s for the applicant’s dismissal; she was notified of the reason/s in the letter of 17 August 2010, and in the meeting of 2 September 2010; and she was given three opportunities to respond to the allegations and she did so. Accordingly, I am satisfied that s 387(a), (b) and (c) have been met. The applicant was represented by her Union, in accordance with the Union’s own protocols in respect to such matters and the Union responded on her behalf and attended the meeting on 2 September 2010, (s 387(d)).

[111] Subsection (e) of s 387, is not relevant to this matter although it might be observed that the applicant had clear warning of her behaviour in the letter of 17 August 2010. Although the respondent is a small employer, I do not find cause for any serious criticism of its procedures in handling the matter, save perhaps for the delay in finalising it, which I have already commented on (s 387(f)). Any lack of finesse in process or procedure in respect to the applicant’s dismissal must be seen in light of the respondent’s lack of human resource expertise and the fact that Ms de Costa undertook this role in addition to all of her other managerial and supervisory duties. I have taken this matter into account.

[112] Finally, I have earlier raised a number of matters I consider relevant to this matter, primarily that it involved the misguided and improper actions of a disgruntled employee who had missed out on a promotional opportunity. Additionally, I have also had regard to the applicant’s relatively short service (January 2009 to November 2010), the extent and nature of the applicant’s skills and expertise and the fact that she had done little to mitigate her loss, having made only one job application between her dismissal on 5 November 2010, and the date of the arbitration (5 April 2011).

[113] For all the aforementioned reasons, I find that the applicant’s dismissal on 5 November 2010, was neither ‘harsh, unreasonable or unjust’ within the meaning of s 387 of the Act. Accordingly, her application for an unfair dismissal remedy must be dismissed. An order to that effect will be published separately to this decision.



Ms N Dabarera, Assistant Industrial Officer, United Services Union, for the applicant

Mr J Pomeroy, Solicitor, Gilbert + Tobin Lawyers, for the respondent

Hearing details:



5 April

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