DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amara Somasundaram
v
Department of Education & Training, North-Eastern Victoria Region
(U2015/2980)

Application for relief from unfair dismissal - dismissal was harsh, unjust and unreasonable.

[1] This decision relates to an application for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act) made on 11 February 2015 by Ms Somasundaram (the Applicant) following the termination of her employment from the Sherbrooke Community School by the Department of Education & Training, North-Eastern Victorian Region (the Respondent). Ms G Jardine of counsel appeared, by permission, for the Applicant and Ms C Currie of counsel appeared, by permission, for the Respondent.

[2] The application has been the subject of hearings before me on 6, 7, 8 and 14 May and 5 and 10 June 2015. On 6 and 7 May the Applicant gave evidence as did two other teachers at the same school who gave evidence for the Applicant. On 8 and 14 May Ms Holmes, the Acting Principal at Sherbrooke Community School gave evidence for the Respondent. At the conclusion of the hearing on 14 May 2015 the applicant’s counsel was only about half way through her cross examination of Ms Holmes and the hearing was scheduled to continue on 15 May 2015.

[3] At the conclusion of proceedings on 14 May 2015, the parties consented to and requested that the matter be subject to conciliation before a Member of the Commission other than myself. At very short notice Gregory C agreed to make himself available on 15 May 2015 to conduct a conference of the parties. Conciliation before Gergory C occurred on 15 May as well as on other days in the following week. That conciliation did not resolve the dispute between the parties and the formal proceedings resumed before me.

[4] A mention was conducted on 5 June 2015 for the purpose of dealing with the objection of the Respondent to the issuing of orders for production sought by the Applicant. During the mention the Respondent tabled submissions regarding further conduct of matter in which the Respondent advised that it withdrew its reliance on the majority of its witness evidence to date and conceded that it was open to the Commission on the basis of the evidence heard so far, to make a finding that the dismissal was harsh.

[5] On 10 June 2015 the hearing resumed and following extensive argument by Ms Jardine on behalf of the Applicant for the ability to continue the cross-examination of the Respondent’s witnesses and pressing for the issuing of orders for production of documents against several individuals, I ruled that the evidentiary case in relation to whether or not there had been a harsh, unjust or an unreasonable dismissal was stopped and that, following final written submission of the parties as to matters arising under s.387 of the Act, I would issue a decision as to whether the dismissal of the Applicant was fair or unfair. Any further proceedings would be dependent upon that decision. At the conclusion of the proceedings on 10 June 2015 the Commission determined each of the initial matters that the Commission was required to determine under s.396 before considering the merit of the application. 1

[6] Final written submissions were filed by the Applicant on 20 July 2015 and by the Respondent on 17 July 2015 and Reply submissions were filed by the Applicant on 20 July 2015.

[7] I note the very specific concession made by the Respondent that:

“The respondent accepts that in all the circumstances and in light of the evidence before the Commission, the decision to terminate the Applicant’s employment was harsh because it was disproportionate to the gravity of the conduct” 2

And

“In all the circumstances, the Respondent submits that the Commission can be satisfied that the dismissal of the Applicant was harsh. The result of this conclusion is that all of the matters set out at section 385(a) to (d) are satisfied and the Commission is able to, and should, make a finding that the Applicant was unfairly dismissed.” 3

[8] However, that concession is made on the basis of the specific contentions made by the Respondent in its final written submissions. Whilst the concession alone might encourage the Commission to make a finding that applicant was unfairly dismissed, to do so on the basis of the Respondent’s concession would be improper. The concession made by the Respondent does not relieve the Commission of the necessity to consider the requirements of the Act.

[9] I now turn to consider the requirements of s.387 of the Act which is as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

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

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

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

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

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[10] I note that paragraphs (e) and (g) are not relevant to the present matter.

Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[11] The respondent contended that it had a valid reason for the termination of the Applicant’s employment arising out of “the aggregation of events from the Applicant’s return to work in November 2013. The admitted conduct would reasonably lead an employer to the conclusion that it could no longer trust and or hold confidence in the Applicant to perform her role in a professional or proper manner or that the Applicant would comply with reasonable and lawful directions given to her in the course of her duties. That confidence was critical for an ongoing employment relationship between the parties relating to the conduct of the Applicant.” 4

[12] The conduct complained of by the Respondent comprises six specific allegations which neatly fall into three groupings.

[13] Firstly the Respondent contended that the admitted conducted of the Applicant in reading a prepared statement to a Whole School Meeting on 19 November 2013 provided a valid reason for dismissal. The respondent described the conduct of the Applicant as:

“you conducted yourself in a disgraceful, improper or unbecoming manner in an official capacity or otherwise when you read out from a pre-typed list of grievances you had with the School”.

[14] The Acting Principal of the school made the complaint about the Applicant’s conduct without having sighted or even requested a copy of the prepared statement. The prepared statement was introduced into evidence through the Applicant and the Applicant’s evidence was very clear – she calmly read the prepared statement out to the Whole School Meeting and said nothing more.

[15] It beggars belief that the Respondent could have come to the conclusion that the Applicant conducted herself in a disgraceful manner in an official capacity when she read out the prepared statement to the Whole School Meeting.

[16] It beggars belief that the Respondent could have come to the conclusion that the Applicant conducted herself in an improper manner in an official capacity when she read out the prepared statement to the Whole School Meeting.

[17] It beggars belief that the Respondent could have come to the conclusion that the Applicant conducted herself in an unbecoming manner in an official capacity when she read out the prepared statement to the Whole School Meeting.

[18] There is absolutely nothing in the content of the prepared statement, nor in the manner in which the Applicant read the prepared statement, nor in the time or place at which the prepared statement was read that could sustain the finding made by the Respondent.

[19] Secondly, the Respondent contended that the conduct of the Applicant in sending emails on 23 February 2014, 28 February 2014, 18 June 2014 and 22 July 2014 to the entire School Distribution List provided a valid reason for dismissal.

[20] The respondent described the conduct of the Applicant as:

“On 23 February 2014 you conducted yourself in a disgraceful, improper or unbecoming manner in an official capacity or otherwise by sending an email to the entire School Distribution List criticising both past and present staff members and leadership at the School.
On 28 February 2014 you conducted yourself in a disgraceful, improper or unbecoming manner in an official capacity or otherwise by once again sending an email to the entire School Distribution List.
On 18 June 2014 you conducted yourself in a disgraceful, improper or unbecoming manner in an official capacity or otherwise by contravening an instruction from the Acting Principal Ms Sue Holmes. You once again sent an email to the entire School Distribution List despite having been told on 16 June 2014 not to do this by the Acting Principal Sue Holmes.
On 22 July 2014 you conducted yourself in a disgraceful, improper or unbecoming manner in an official capacity or otherwise by contravening an instruction from the Acting School Principal Ms Sue Holmes and again sending an email to the entire School Distribution List critical of the school leadership and in breach of confidentiality principles.”

[21] In relation to each of the above four items the Respondent provided further details but they do not need to be repeated here.

[22] In using the entire School Distribution List the Applicant considered that her emails were going to each and every staff member at the school and to no-one else. The only critical failure of the Applicant in using the entire School Distribution List was that that list included a parent at the school who was also the chair of School Council. This error on the part of the Applicant was explained by the Applicant who gave evidence that she understood that the entire School Distribution List was limited to staff because another teacher had used the same email list to send out an email alerting everyone to the User name and Password for accessing the school’s IT system. In circumstances where nothing had apparently been done in relation to that other teacher’s email it was reasonable for the Applicant to assume that use of the entire School Distribution List was limited to staff at the school.

[23] In the case of each of the complained of emails, none of them individually, nor the circumstances surrounding them, would provide a valid reason for dismissal and no combination of the complained of emails, nor the circumstances surrounding them, would provide a valid reason for dismissal.

[24] The evidence before the Commission simply does not support the contentions of the Respondent. There could have been better ways that the Acting Principal and the Applicant communicated with each other and there could have been better ways for the Applicant to communicate with the other staff at the school, but that is not the basis for the findings made and acted upon by the Respondent.

[25] In the case of each email the Respondent decided that the Applicant had conducted herself in either a disgraceful manner or an improper manner or an unbecoming manner in her official capacity. A finding in relation to any one of the three alternatives was simply not open to the Respondent on any objective consideration of the circumstances surrounding each email.

[26] Thirdly, the Respondent originally contended that the Applicant’s interaction with another staff member on 19 June 2014 provided a valid reason for dismissal. The respondent found that the Applicant conducted herself in a disgraceful, improper or unbecoming manner in an official capacity or otherwise during a conversation with a colleague.

In its final written submissions the Respondent contended and conceded as follows:

33. The respondent does not contend that a finding should be made that the Applicant engaged in the alleged misconduct in relation to (a colleague). The respondent accepts that even if the incident was made out on the evidence, it would not on its own be of sufficient seriousness to be a valid reason for termination arising from or connected with the incident involving (the colleague).

[27] On the evidence before the Commission it is clear that the interaction between the Applicant and the colleague on 19 June 2014 could not give rise to a valid reason for dismissal.

Whether the Applicant was notified of the reason for dismissal.

[28] The applicant was notified in September 2014 of the allegations against her and in relation to which she was dismissed

Whether the Applicant was given an opportunity to respond to any reason related to the conduct of the Applicant.

[29] The applicant was given an opportunity to respond to the reasons, relating to the conduct of the Applicant, which were relied on by the Respondent to dismiss her

Any unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist at any discussions relating to dismissal.

[30] In all of the circumstances of the present matter I am satisfied that there was no unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist at any discussions relating to dismissal.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.

[31] The extremely large size of the Respondent and its status as a significant government department of the State of Victoria clearly leads to the conclusion that there was a significant impact on the procedures followed in effecting the dismissal. The very fact that the Respondent has a complex and comprehensive set of requirements for dealing with allegations against employees and for disciplining employees including dismissal should count in favour of the Respondent.

[32] The very fact that the Respondent now concedes that the dismissal was unfair permits the obvious conclusion that the size of the Respondent’s enterprise had a negative impact on the procedures followed in effecting the dismissal of the Applicant.

Any other matters that the FWC considers relevant.

[33] The conduct of the Applicant which gave rise to the Respondent finding that it “considered you conducted yourself in a disgraceful, improper or unbecoming manner in an official capacity” all occurred in the context of the Applicant having returned to work after a lengthy period off work because of work related mental health issues which the Applicant attributed to bullying at work. On return to work the Applicant encountered a school leadership and Departmental response which was not only not conducive to a well-managed return to work, but which appeared to ignore the genuine concerns of the Applicant.

[34] It is directly relevant that the Acting Principal had previously been the Assistant Principal at the same school where she was working in difficult circumstances. It is also directly relevant that the Acting Principal was only appointed to that role very shortly before the Applicant’s return to work and where this was the very first time that the Acting Principal had acted in a Principal’s position.

Conclusion as to s.387 matters

[35] Recently a full bench in Epworth Healthcare v Tamer Selcuk 5 found:

“[31] However, it does not follow that the identification of this error results in the grant of permission to appeal. This is so for two reasons. First, it is clear from the Commissioner's decision that the existence of the practice was a factor that he took into account in determining that the dismissal was unreasonable. The Commissioner had already and separately concluded that the dismissal was harsh because, the penalty of dismissal would operate harshly on him, having regard to the Respondent's circumstances. The Commissioner had also already and separately concluded that the dismissal was unjust by reason of the appellant's failure to provide the Respondent with relevant material which might have enabled him to better respond to the allegations before it dismissed him.

[32] As McHugh and Gummow JJ explained in Byrne v Australian Airlines Ltd as follows:

‘.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.’ 

[33] The Commissioner's conclusion that the dismissal was harsh, or his conclusion that the dismissal was unjust, were each a sufficient basis for the Commissioner's ultimate conclusion that the dismissal was unfair. It was not strictly necessary for the Commissioner to also conclude that the dismissal was unreasonable. Thus even if the appellant's appeal was upheld on this ground the result would be the same. On that basis the appeal on this ground has no utility.” [citations omitted]

[36] It is clear that when considering whether a dismissal is harsh, unjust or unreasonable it is sufficient for the Commission to be satisfied that the dismissal is unfair because it is one of harsh, unjust or unreasonable and it is sufficient for the Commission to be satisfied that there isa single basis for making such a finding. Nothing more is required in order to meet the requirements of a finding on merit that a dismissal is unfair.

[37] Having taken into account each of the relevant matters in s.387 the Commission is satisfied that the dismissal of the Applicant was harsh. Having taken into account each of the relevant matters in s.387 the Commission is also and separately satisfied that the dismissal of the Applicant was unjust. Having taken into account each of the relevant matters in s.387 the Commission is also and separately satisfied that the dismissal of the Applicant was unreasonable.

[38] The dismissal was harsh in its consequences for the personal and economic situation of the Applicant.

[39] The dismissal was unjust because the Applicant was not guilty of the misconduct on which the Respondent acted

[40] The dismissal was unreasonable because it represented a grossly disproportionate response to conduct of the Applicant which was reasonable and which invited a proper, considered and proportionate response from both the Acting Principal and the school staff and the Respondent.

[41] The dismissal was both unreasonable and unjust in that the allegations and subsequent findings were expressed as one of three possible alternatives without each allegation and each finding actually identifying the nature of the wrong. Each allegation and each finding was expressed as being one of disgraceful conduct or improper conduct or unbecoming conduct but at no stage was the Applicant told which of those alternatives applied. Conduct may be unbecoming but at the same time fall far short of being either or both improper or disgraceful conduct. and/or disgraceful. Responding to an allegation of engaging in unbecoming conduct may elicit a significantly different response than would be given if the same conduct was described as disgraceful conduct. The findings made by the Respondent that the conduct of the Applicant was one of being improper, disgraceful or unbecoming, but without specifying which provides no basis for the conclusion of the Respondent that dismissal should occur. Thus the dismissal was both unjust and unreasonable.

COMMISSIONER

Appearances:

Ms G. Jardine of counsel for the Applicant.

Ms C. Currie of counsel for the Respondent.

Hearing details:

2015.

Melbourne:

May 6, 7, 8 and 14.

June 5 and 10.

 1   Transcript at PN5808 – PN5817.

 2   Respondent’s submissions 17 July 2015 at para 52.

 3   Ibid at para 53.

 4   Ibid at para 34.

 5   [2015] FWCFB 2085.

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