[2016] FWC 241

The attached document replaces the document previously issued with the above code on 15 January 2016.

The removal of identifying features in paragraph 51.

Bec Francis

Associate to DEPUTY PRESIDENT WELLS

Dated 19 January 2016

[2016] FWC 241
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394—Unfair dismissal

Mary-Jane Anders
v
The Hutchins School
(U2014/15714)

 

DEPUTY PRESIDENT WELLS

HOBART, 15 JANUARY 2016

Application for relief from unfair dismissal.

Introduction

[1] Mrs Mary-Jane Anders (“Mrs Anders”) (“the Applicant”) filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) following the termination of her employment by The Hutchins School (ABN 91 133 279 291) (“the Respondent”). The letter of termination dated 28 November 2014 did not cite a reason for termination but referred to a previous letter sent to Mrs Anders. That previous letter stated the school had no trust and confidence in Mrs Anders. Through her application, Mrs Anders sought reinstatement.

[2] The application proceeded to conciliation before a Fair Work Conciliator but was unresolved. The matter continued to arbitration. Directions were set for the filing of evidence and submissions. A significant volume of material was filed with the Fair Work Commission (FWC) to determine these matters. Whilst not all of the submissions and evidence have been referred to, all have been considered in this decision.

[3] Mr Alex Sachinidis of the Independent Education Union appeared for Mrs Anders. Ms Audrey Mills of Dobson Mitchell and Allport Lawyers appeared for The Hutchins School.

Background

[4] There is a considerable background to this matter that was borne out in the evidence and is set out below.

[5] The Hutchins School is a private boy’s school catering from early learning to Year 12 and is located close to Hobart. The Hutchins School is associated with two private schools for girls also located in the Hobart area, namely St Michael’s Collegiate School and Fahan School. These three schools (known as “the Cooperating Schools”) provide assistance to each other by way of, but not limited to, offering subjects to students that cannot otherwise be offered to them within the timetable of their enrolled school.

[6] At the time of hearing, Mrs Anders was aged 46 years and with her husband has three children aged ten, eight and six years of age. Mrs Anders commenced employment with The Hutchins School on 1 January 2001 as the Assistant to the Director of Studies, which also encompassed a senior mathematics teaching role. Following a restructure in 2003 Mrs Anders’ position was extended to include all aspects of timetabling, the academic database and the administrative tasks previously overseen by the Director of Studies. The extended role became known as Academic Administrator (“AA”). Whilst there were additional administrative duties added to the position, there was no change in time allocation for this work, which allowed 12 school periods per week.

[7] Over the course of 2013 Mrs Anders became ill and was diagnosed with depression and anxiety. She finished the school year two days early due to her health, on 9 December 2013 and had already applied for, and was granted, long service leave for the first term of the 2014 academic year.

[8] A dispute arose between Mrs Anders and The Hutchins School due to the AA role being removed from her on 20 December 2013. This was disputed before the FWC with Commissioner Lee conducting a conciliation conference on 16 July 2014. That application to the FWC was withdrawn by Mrs Anders on 8 August 2014 on the basis of a negotiated outcome that further discussion occur between the parties.

[9] Concurrently, Mrs Anders lodged a workers compensation claim against The Hutchins School, citing a workplace injury sustained on 23 September 2013. That claim is currently in dispute.

[10] Following Mrs Anders discontinuing her FWC application, there were meetings and correspondence between the parties relating to the disputed AA role and Mrs Anders continued to dispute her removal from that role up until the dismissal of her employment on 28 November 2014.

[11] The relevant industrial instrument in place at the time of Mrs Anders dismissal was The Hutchins School (Teachers) Enterprise Agreement 2013 1 (“the Industrial Agreement”) and the AA role was known as a position of responsibility under the Industrial Agreement. A position of responsibility attracts an allowance payment over and above the remuneration received as a Teacher.2

The evidence

[12] Witness statements and oral evidence for Mrs Anders were provided by:

[13] Witness statements and oral evidence for The Hutchins School were provided by:

[14] The hearing of this matter involved 11 days of witness evidence. A large amount of evidence led at hearing related to the workload of Mrs Anders in the AA role and the context around her termination of employment. Much of the evidence dealt with the relationship between Mrs Anders and others employed at The Hutchins School, both currently and at the time of her dismissal.

Events of 2013

[15] On 6 May 2013 Mrs Anders advised Mr Alan Jones, Deputy Headmaster of The Hutchins School, that she was struggling with her AA workload. Some of the content of this conversation, the amount of assistance or whether any assistance was provided to Mrs Anders at this time is in dispute.

[16] Subsequent to Mrs Anders’ discussion with Mr Jones, she broke down at work on 16 and 24 May 2013 and attended an appointment with her general practitioner (GP) on 3 June 2013, who diagnosed her at that time with depression and anxiety said to be as a result of “high workload” and “lack of resources”. 15 She was placed on anti-depressant medication. Mrs Anders advised Mr Jones verbally of her diagnosis and the medication prescribed a couple of days after her GP appointment.

[17] During June and on 20 and 21 August 2013, Mrs Anders again became distressed at work as to her workload. Mrs Anders attended her GP on 26 August 2013 and her anti-depressant medication was increased to a double dose. A further GP appointment was made at that time for 23 September 2013. Mrs Anders experienced extreme anxiety at work on 23 September 2013, attended her scheduled GP appointment, and was assessed and provided a medical certificate certifying her unfit for work for a period of two weeks. This medical certificate was provided to Mr Warwick Dean, the Headmaster of The Hutchins School.

[18] A Return to Work (“RTW”) plan was prepared by Ms Jenny Self, Business Manager for The Hutchins School, to facilitate Mrs Anders’ return to the workplace. This plan indicated Mrs Anders was diagnosed with anxiety and depression. 16 As part of the RTW plan, Mrs Anders was taken off teaching duty for the first week of term 4 to allow her to train her co-workers Mr James Seddon and Mr Sam Nogajski, to undertake maintenance of the timetable and generate reports, as she was to be on long service leave in term 1 of the 2014 academic year.

[19] In the week commencing 2 December 2013 Mrs Anders indicated to a colleague, via email, that she was struggling with the workload. Mrs Anders’ evidence was that this was due to Mr Seddon and Mr Nogajski both being absent from the school on days during that week and not being available to assist her with timetable duties.

[20] On 9 December 2013, whilst meeting with Mr Jones, Mr Seddon and Mr Nogajski about the work remaining for the 2014 timetable, an incident occurred (“the incident”) where Mrs Anders became overwhelmed and distressed, left the meeting and sought the counsel of a work colleague, Ms Sally Westcott. Very shortly after this, Mr Seddon and Mr Nogajski met with Mr Dean in his office and advised Mr Dean that they would no longer work with Mrs Anders.

[21] The details of Mrs Anders subsequent interactions with Mr Nogajski and Ms Self on 9 December 2013 are in dispute, however it is common ground between the parties that Mr Nogajski approached Mrs Anders in the laboratory asking her about files for the timetable, however the manner of this approach to Mrs Anders is in dispute. Mrs Anders then spent some time in the office of Ms Self, then met with the Headmaster Mr Dean, and was advised by him to go home, not do any work and to seek specialist help.

[22] Mrs Anders attended her GP the following day, 10 December 2013, with her husband and Ms Self present. Shortly thereafter, Ms Self made an appointment for Mrs Anders to see a psychiatrist chosen by The Hutchins School, Dr Phillip Reid, on 19 February 2014. Mr Dean advised Mrs Anders in writing 17 that the appointment with Dr Reid was to provide her with specialist assistance.

[23] On 20 December 2013, Mrs Anders attended a meeting with Mr Dean and Ms Self. Mr Dean advised Mrs Anders that due to her health, she would not be returning to the role of AA, following her long service leave. Mr Dean advised that on her return, her role would be as a Senior Classroom Teacher (SCT) in Mathematics. Mrs Anders disputed this.

[24] Following that meeting, Mrs Anders became despondent and was required to attend emergency at the Royal Hobart Hospital with her husband on 21 December 2013. The triage nurse enquired as to whether the visit was covered by workers compensation. It was at this point that Mrs Anders and her husband became aware that she may have a possible workers compensation claim.

Events of 2014

[25] On 20 January 2014 Mrs Anders and her husband attended a further meeting with Mr Dean. Ms Self was also present. Mrs Anders was again advised by Mr Dean that she would not return to her role of AA and that her salary would reduce. He also offered to extend Mrs Anders leave until the end of term 2 in 2014 and to pay her for any period that would not be covered by her existing leave entitlement. Mrs Anders took up the offer of extended leave on 22 January 2014. A letter was handed to Mrs Anders at the meeting dated 13 January 2014 which reflected these matters. 18 Mrs Anders continued to dispute that the role of AA be removed from her. At this meeting Mr Dean advised Mrs Anders that Mr Seddon and Mr Nogajski had stated they did not wish to work with her.

[26] Mrs Anders received a letter from Mr Dean dated 30 January 2014 advising that the medical assessment with Dr Reid scheduled for 19 February 2014 was to determine her suitability for the AA role. Mrs Anders attended the psychiatric assessment and a copy of the report 19 was forwarded to her GP. Mrs Anders responded to the report on 23 March 201420 disputing a number of matters contained in it. I note there is dispute over the content of the correspondence sent to Dr Reid by the lawyers acting for The Hutchins School, with Mrs Anders stating that the information provided to Dr Reid was inaccurate and subjective and included a Statement of Duties which did not reflect all of her work. There was a significant amount of evidence led on this point.

[27] Mrs Anders proceeded onto long service leave and extended leave, with her return to work date being the commencement of term 3 in 2014.

[28] Dr Reid consulted with Mrs Anders on 19 February 2014. His report dated 3 March 2014 set out Mrs Anders’ background and addressed the questions asked of him by The Hutchins School. Dr Reid concluded: 21

[29] On 23 March 2014 Mrs Anders disputed the content of Dr Reid’s report and provided Mr Dean with a 23 page written response to it. 22 A further report was obtained from Mrs Anders’ GP, Dr Stone.23 Whilst on leave on 14 May 2014, Mrs Anders and her husband met with Mr Jones to discuss the ongoing dispute involving her returning to work as a Senior Classroom Teacher (SCT) rather than as the AA. Mr Jones’ evidence was that at that meeting Mrs Anders was aggressive toward him and threatened him. Mrs Anders denied this behaviour.

[30] On 5 June 2014 Mrs Anders received an email from the Head of the maths faculty, Mr Grabovszky, advising her of her teaching allocation for terms 3 and 4 in 2014. She was not allocated any pre-tertiary maths subjects and was upset as she had always taught a pre-tertiary subject. On the evening of 5 June 2014 Mrs Anders posted a status on her facebook page which read: 24

[31] This Facebook status was available to Mrs Anders Facebook friends. Mrs Anders’ evidence was that she did not identify The Hutchins School as her employer on her Facebook profile. Mr Jones advised that The Hutchins School considered it was exposed to reputational damage by the content of the post, as Mrs Anders was known to be an employee of The Hutchins School and other staff were her Facebook friends. Mr Jones’ evidence was that he subsequently reminded all staff of their proper obligations using social media and that they needed to be aware if they were identifying themselves as employees of the school and needed to be very careful about personal comments made on Facebook.

[32] On 25 June 2014 Mrs Anders sent an email to a colleague, Ms Jill Abell, relating to the donation of a book to the school by the Anders family. In that email Mrs Anders commented the school seemed willing to contravene its own code of conduct. Further, on or around that day Mrs Anders posted another status on her Facebook page which read:

[33] As a result of the email to Ms Abell and the Facebook status, Mr Jones wrote to Mrs Anders on 26 June 2014 referring to those matters. The correspondence advised that her statements could be defamatory and were viewed as inaccurate and could damage the reputation of the school. Mrs Anders was requested to “…please immediately refrain from making any further comments which damage the reputation of the School or defame the reputation of those at The Hutchins School.” 25

[34] Subsequent to her return to work and on 7 July 2014, Mrs Anders filed a formal dispute under s.739 of the Act with the FWC relating to the AA role being removed from her. The matter proceeded by way of conference before Commissioner Lee on 16 July 2014. The application was discontinued by Mrs Anders on 8 August 2014. 26 It is common ground that Mrs Anders agreed to return to work in the role of SCT on the basis of reserving her rights ‘under protest’ as to the AA role, and that discussions would continue with Mr Jones about remuneration and the special project she was to undertake in the SCT role.

[35] At the commencement of term 3 of 2014, Mr Seddon was appointed as the AA and an email was sent by Mr Jones to all staff at that time advising of that appointment and the return of Mrs Anders in an SCT role.

[36] Upon her return to the workplace in term 3 of 2014 (21 July 2014), Mrs Anders discussed details of her dispute with The Hutchins School with other members of staff, both face to face and via email.

[37] It was the evidence of Ms Self, Mr Jones and Mr Dean that on her return to work, Mrs Anders’ behaviour towards them was inappropriate and involved staring and/or glaring and eye rolling. Mr Seddon stated that Mrs Anders was inappropriately critical of his work in an attempt to undermine him in the AA role. Mrs Anders denied all of these allegations.

[38] On 23 July 2014 Mrs Anders provided The Hutchins School with a Workers Compensation Medical Certificate and claim form and left the workplace distressed. Mrs Anders was cleared to return to work on 18 August 2014, following issues with the finalisation of a second RTW plan.

[39] From 21 July 2014 Mrs Anders had been corresponding with Mr Dean about her undertaking the SCT role and had put options to The Hutchins School about another role. Management, in an email of 5 August 2014, 27 did not take up the options suggested by Mrs Anders and in return correspondence requested her to sign the employment contract for the SCT role.

[40] On 13 August 2014 Mr Dean wrote to Mrs Anders 28 specifically requesting that Mrs Anders refrain from raising and commenting on her industrial issue in her communication with other staff and advising it was only relevant to discuss such matters with Mr Dean, Mr Jones and Ms Alex Terhell, Human Resource Advisor at The Hutchins School. The letter also requested that Mrs Anders do certain things if she required assistance and how she should provide feedback in relation to the current timetable. On the evening of 14 August 2014 Mrs Anders presented to the Emergency Department of the Royal Hobart Hospital via ambulance due to her mental health. She was certified unfit for work on 15 August 2014 (see RTW Plan No. 2).29

[41] A meeting convened by The Hutchins School took place on 4 September 2014 between Mrs Anders and Mr Mecklenburgh, Mr Jones and Ms Terhell relating to email correspondence sent by Mrs Anders to a member of the IT team and Mrs Anders’ request that she not greet Messrs Seddon and Nogajski in the workplace. Mrs Anders sought mediation with Messrs Seddon and Nogajski. The evidence at hearing was that Mr Seddon never agreed to mediation 30 and whilst Mr Nogajski advised the school he was open to mediation, he later changed his mind in response to what he described as “a series of unfortunate events”.31 The Hutchins School management did not inform Mrs Anders of this. Following that meeting a letter was sent from Mr Dean to Mrs Anders, dated 9 September 2014,32 outlining the discussions that took place in the meeting of 4 September 2014. This letter noted:

[42] On 16 September 2014 Mr Grabovszky had a conversation with Mrs Anders about the non-allocation of pre-tertiary maths subjects to her wherein Mrs Anders became agitated and forceful and accused him of discrimination because of her disease and said she was going to take the school for everything they have got. Mrs Anders returned shortly after this conversation and apologised to Mr Grabovszky. 33 Mr Grabovszky advised Mr Dean and Mr Jones of this conversation and later advised he found working in the same office with Mrs Anders difficult. On 24 September 2014 he moved into a separate office.34 However on the day of the move Mrs Anders questioned whether the allocation of teaching subjects had changed. When she heard that they had not changed she replied “the gloves are off and the spears are up”. Mr Grabovszky found this statement confronting. Mrs Anders’ evidence was that the statement “spears are up” was an aboriginal cultural term and meant ‘to make a stand’.35

[43] On 23 September 2014, Mr Dean and Ms Terhell met with Mrs Anders and Mr Mecklenburgh to discuss the SCT position. The matter remained unresolved and Mrs Anders told Mr Dean that she believed The Hutchins School had taken adverse action against her. 36

[44] The following day Mrs Anders attended a RTW meeting with her internal RTW coordinator, Mr Darryl White. Mrs Anders stated that Mr White said he was removing himself as her RTW coordinator as he had concerns about her holding him accountable in the future. 37 Mr White advised that if she had any concerns she should approach the external coordinator, Ms Katie Bishop.

[45] School holidays commenced on 25 September 2014. Mrs Anders’ husband became critically ill on 4 October 2014 whilst in Melbourne, requiring attendance at the Royal Alfred Hospital. He was subsequently admitted to Calvary Hospital in Hobart on 5 October 2014. Due to this, Mrs Anders advised Mr Nogajski (responsible for class supervisions), Mr Dean and Mr Jones that she may not be present at work at the commencement of term 4. There was a considerable amount of evidence led by both sides as to Mrs Anders accessing emergency carer’s leave over a period. Mrs Anders viewed a request from The Hutchins School for her to provide material for student lessons as inappropriate and not in accordance with school policy. 38 The evidence of the relevant witnesses for The Hutchins School was that they were unaware of the serious nature of Mr Anders’ illness and there was confusion over the requirements to provide lesson plans, depending on the type of leave being accessed by Mrs Anders. Mr Anders was released from hospital on 22 October 2014 and Mrs Anders returned to work on 27 October 2014 feeling disheartened by the treatment she had received from the school whilst her husband was ill.39

[46] On 30 October 2014 Mrs Anders lodged a disability discrimination complaint against The Hutchins School with the Office of the Anti-Discrimination Commissioner and she informed her colleague Mr McNamara of this on 31 October 2014. She advised Mr McNamara that she had reached this point because the school refused to consider her position. 40

[47] Also on 31 October 2014 Mrs Anders sent an email to Mr Dean expressing her concern about the treatment of her family whilst she was on leave caring for her husband.

The Termination Process

[48] On 3 November 2014 Mrs Anders attended Mr Dean’s office with Mr Servant as a support person. Mr Dean and Ms Terhell were also present. Mrs Anders was issued with a letter, the content of which is as follows: 41

[49] Mrs Anders and Mr Mecklenburgh met with Mr Dean and Ms Terhell on 6 November 2014 and Ms Self was present to take minutes of the meeting. The meeting was also recorded. Mrs Anders addressed a number of the allegations and the outcome of the meeting was that The Hutchins School would provide further detail to Mrs Anders as to some of the allegations by the next day and a response from Mrs Anders was to be provided by 10 November 2014. 42

[50] On 7 November 2014 Mr Mecklenburgh provided a written response 43 to the allegations to Mr Dean, questioning the integrity of information provided to him. Mrs Anders also provided a written response to the allegations discussed in the meeting of 6 November 2014.44 Mr Mecklenburgh wrote to Mr Dean on 10 November 2014, advising that the written responses stated that a number of the allegations in the letter of 3 November 2014 had been satisfactorily dealt with previously.45

[51] On 17 November 2014 The Hutchins School issued a further letter 46 to Mrs Anders which restated the points raised in the letter of 3 November 2014 and contained two additional allegations which were dated after 3 November 2014. The letter was signed by Mr Jones and again advised that termination of employment was a possible outcome of the process. The relevant parts of the letter read:

[52] In response, Mr Mecklenburgh wrote to Mr Dean on 18 November 2014 47 and Mrs Anders provided a written response on 19 November 201448 answering each of the allegations in full, despite having previously answered a number of them. Subsequently, on 26 November 2014 Mrs Anders received an undated letter from Mr Jones which contained the following: 49

[53] Mrs Anders provided a written response 50 which gave responses to all of the findings and also advised that during the meeting of 6 November 2014 she had denied the allegation that she had told Ms Terhell she did not trust Mr Dean and Mr Jones. Mrs Anders also went on to further address that allegation again in her written response. Mrs Anders stated she did not resign as she did not consider resignation to be justified. She attended the meeting on 28 November 2014 accompanied by Mr Mecklenburgh. Mr Jones and Ms Self were present. Mr Dean was not present as he was representing The Hutchins School at the Royal Commission into Institutional Responses to Child Sexual Abuse. Mr Jones advised Mrs Anders that her employment was terminated as the trust and confidence between her and The Hutchins School was broken. There were some further discussions which involved Mrs Anders linking her treatment by the school and the Royal Commission. Mr Jones took that comment to be a threat. Mrs Anders confirmed she made the comment but denied it was in any way a threat. Mrs Anders was provided with her termination letter which said:51

Evidence of individual witnesses

[54] All witnesses provided oral evidence and were comprehensively cross examined, with the exception of Mr Mecklenburgh whose witness statement was tendered unopposed.

[55] Mr Mecklenburgh provided evidence in relation to his background as a union official, his involvement in Mrs Anders’ interactions with The Hutchins School, including the general dispute application from July 2014 and the meetings with, and responses to, The Hutchins School relating to Mrs Anders’ termination.

[56] Mrs Anders’ evidence was considerable, encompassing an 83 page statement with 146 attachments and more than five days of oral evidence. This evidence comprehensively dealt with her written responses to The Hutchins School directly involving the matters concerned with her termination as well as providing a background to the AA role. The majority of Mrs Anders oral evidence dealt with her duties in the AA role (particularly the timetable); her workload and the additional work that was required of her in 2013 which involved a new curriculum, creation of a web based preference program for use by the students when choosing subjects, additional duties relating to the cooperating schools, career counselling and what she said was off-line teaching of two students. Her evidence also went to her relationship with colleagues, in particular Mr Seddon and Mr Nogajski; her interactions on Facebook relating to her distress at the treatment she had received in the workplace; her diagnosis of mental illness and her contentions that the briefing letter sent by the lawyer for The Hutchins School to Dr Philip Reid, Psychiatrist, was subjective and inaccurate.

[57] It was Mrs Anders evidence that she could return to the workplace in a professional capacity and would have no difficulty working with any of her former colleagues.

[58] Mr Servant’s evidence went to his professional relationship with Mrs Anders, her role as AA and mentor, her relationship with other work colleagues and the inactions of management of The Hutchins School as to the difficulties experienced by Mrs Anders in the workplace. Mr Servant saw no bar to Mrs Anders returning to The Hutchins School should her dismissal be found to be unfair.

[59] Mr Crofts provided evidence as to his role as union delegate at The Hutchins School, his participation in formulating and understanding the grievance policy 52 and other school policies, his relationship with Mrs Anders and her relationship with others at the Hutchins School, and what he saw as inaction by The Hutchins School management to adhere to its grievance policy when dealing with Mrs Anders and Messrs Seddon and Nogajski. Mr Crofts said the grievance policy should have been enacted even if Messrs Seddon and Nogajski had declined mediation. Mr Crofts considered Mrs Anders could return to the workplace in a professional capacity.

[60] Ms Westcott’s evidence dealt with her interaction with Mrs Anders following the incident on 9 December 2013, her observations of Mr Nogajski when he came to get information from Mrs Anders at that time, her interaction with Mr Jones on that day; what staff at The Hutchins School had been told about Mrs Anders subsequent to that date and after her termination and her relationship with Mrs Anders. Ms Westcott’s evidence was that she could see no reason for Mrs Anders not to return to the workplace should her dismissal be unfair.

[61] Mr Dean’s evidence went largely to his qualifications as an educator and Headmaster, his knowledge of Mrs Anders’ employment history at both The Hutchins School and Fahan School; her role and work as the AA in 2013; his involvement in the meetings that took place after the incident on 9 December 2013 and the role description for the AA position. Further, Mr Dean provided evidence on what he saw as his pastoral duties and duty of care toward Mrs Anders; his knowledge of the briefing letter to Dr Reid; his understanding of Mrs Anders diagnosis of depression and anxiety; his role in the decision not to allow Mrs Anders to undertake the role of AA; his discussions with Mr Seddon about ongoing AA duties in 2014; and his involvement in and understanding of the allegations put to, and responses received from, Mrs Anders as to the alleged breakdown in trust and confidence in the employment relationship. Mr Dean stated that it would be impossible for Mrs Anders to return to The Hutchins School in any employment capacity.

[62] Mr Jones gave extensive evidence which involved a 29 page witness statement with 18 attachments and two days of oral testimony. His evidence provided a history of his work and qualifications; the time allocation of Mrs Anders’ AA role split into administrative and teaching duties; his understanding of the timetable at The Hutchins School; his engagement of timetabling expert Mr Brett Pullyblank to audit and make recommendations on The Hutchins School timetable and his interactions as to workload with Mrs Anders in the lead up to, and subsequent to, her diagnosis and medication for anxiety and depression. Mr Jones’ evidence also went to his arrangements of extra assistance for Mrs Anders during 2013, the duties of the AA role, interactions with Messrs Seddon and Nogajski involving their complaints about working with Mrs Anders; his concerns about the complexity of Mrs Anders’ timetable and her inability to have the timetable completed by the end of the school year; the additional work taken on by Mrs Anders; his interactions with Mrs Anders at the time of the incident on 9 December 2013 and subsequent meetings; his understanding of mediation and the school’s grievance and other policies; and his involvement in the preparation of the briefing letter to the Psychiatrist Dr Reid. Mr Jones provided evidence that Mrs Anders was an excellent timetabler, that previously he had a strong relationship with Mrs Anders but that this relationship was irretrievably broken during a meeting on 14 May 2014 when he stated Mrs Anders threatened him. He said “I was going to get it from her”. 53 Further, Mr Jones’ evidence included his role in dealing with Mrs Anders’ use of Facebook to discuss personal grievances which had the ability to identify The Hutchins School; and meetings and consideration of responses from Mrs Anders relating to the allegations of the loss of trust and confidence in her relationship with The Hutchins School, which eventually led to the decision to terminate her employment.

[63] Mr Seddon’s evidence went to the history of his employment with The Hutchins School; the training he received from Mrs Anders; what he perceived as the role of the AA and unnecessary additional tasks he said Mrs Anders took on; Mr Nagojski’s absence from his work due to cricket umpiring commitments and his own absence from the school whilst on professional development the week prior to the end of the 2013 academic year. Mr Seddon also provided evidence of the timetable as operated by Mrs Anders and the less complex way he now completed the timetable on time; the events of the incident that occurred on 9 December 2013 and the subsequent meetings with Mr Jones and Mr Dean; his refusal to work with Mrs Anders and his subsequent discussions with Mr Dean about taking on the AA role. Mr Seddon said in part he refused to enter mediation with Mrs Anders; was approached by Mr Jones in 2014 as to whether he was interested in taking on the AA role permanently; that he was ultimately successful in obtaining that position and advised he felt undermined by Mrs Anders subsequent to his taking up the AA role. Mr Seddon stated that during term 3 of the 2013 academic year he became aware that Mrs Anders was suffering from a mental illness. 54 He also stated he could not work with Mrs Anders in any capacity in the future.55

[64] It was Mr Nogajski’s evidence that he worked with Mrs Anders in the maths faculty and as assistant timetabler and then later as daily organiser at The Hutchins School. Mr Nogajski’s evidence provided the time allocations for his administrative workload; the arrangements relating to his absences from the workplace due to cricket umpiring; his observations of Mrs Anders’ behaviour when she became stressed in her role as AA; the complexity of the timetable as constructed by Mrs Anders and what he saw as unnecessary work undertaken by Mrs Anders. Mr Nogajski outlined that Mrs Anders would often re-do his work unnecessarily and that she was very controlling when it came to work on the timetable. Mr Nogajski provided evidence as to the events of 9 December 2013 when Mrs Anders broke down and had to leave Mr Jones’ office and his interaction with Mrs Anders when he went looking for her and found her in the laboratory talking to Ms Westcott. He denied that he told Mr Jones that he found Mrs Anders in the foetal position on the floor of the laboratory. He advised of the content of the meeting he and Mr Seddon continued to have with Mr Jones after the incident and of the subsequent meeting with Mr Dean. Mr Nogajski’s evidence was that sometime in September 2013 he was advised by the school that Mrs Anders was suffering from a mental illness. 56 His evidence provided that Mrs Anders was unwilling to interact with him on her return to the workplace in 2014 after her extended long service leave and he discussed his unwillingness to mediate.

[65] During the testimony of Mr Nogajski, further emails were produced and tendered into evidence which related to discussions Mr Nogajski had with Ms Terhell. These emails and subsequent conversations between Mr Nogajski and Ms Terhell related to Mrs Anders’ behaviour toward Mr Nogajski and were relied on by Mr Nogajski and The Hutchins School to show a serious breakdown in the relationship between Mrs Anders and Mr Nogajski. It is to be noted that these matters were largely based on hearsay and the additional email evidence was never put to Mrs Anders. Mr Nogajski advised there was a “…zero per cent chance” 57 he could work with Mrs Anders in the future.

[66] Ms Self’s evidence went to her role at The Hutchins School, her involvement in doctors appointments she attended with Mrs Anders; her involvement in the preparation of the briefing letter to the Psychiatrist Dr Reid; her observations of Mrs Anders at work over a long period of time; her involvement in a RTW plan for Mrs Anders in October 2013 and her observations of events of 9 December 2013. Ms Self gave evidence of the meetings between Mr Dean and Mrs Anders on 20 December 2013 and 20 January 2014, as she was present at those meetings, and that, at both meetings Mrs Anders was advised that she would not be returning to the AA role in 2014. It was Ms Self’s evidence that Mrs Anders was either aggressive or dismissive of her when she returned to the workplace in 2014 and detailed her involvement in the correspondence and meetings which led to the termination of Mrs Anders. Ms Self advised she was aware of Mrs Anders’ diagnosis of anxiety and depression from attending a consultation with Mrs Anders at her GP in 2013. 58 Ms Self stated that Mrs Anders could not return to The Hutchins School in any capacity.

[67] Mr Grabovszky provided evidence as to his employment history and his work relationship with Mrs Anders within the maths faculty at The Hutchins School; allocation of maths subjects to teachers within the faculty; his non-approval of Mrs Anders teaching off-line students; his observations of Mrs Anders’ behaviour during Term 3 of 2014 when she forcefully accused him of discriminating against her based on her illness. Further it was Mr Grabovszky’s evidence that subsequent to that discussion with Mrs Anders, she started ignoring him. He said Mrs Anders apologised to him and he advised Mr Jones of this. Mr Grabovszky said he would be able to work with Mrs Anders if she returned to the school but was concerned about the rest of the maths faculty’s ability to work with her.

[68] Mr McNamara’s evidence went to his employment relationship with The Hutchins School; his interactions with Mrs Anders when she returned to the workplace in term 3 of 2014 which involved discussions about her difficulties with The Hutchins School; her discussions with Mr Grabovszky (and subsequent apologies) about her teaching allocation; her issues with accessing carer’s leave in 2014 and her feelings of discrimination and wish to make a claim against The Hutchins School. It was Mr McNamara’s evidence that Mrs Anders’ claims and views were widely known at the school which had created angst and the formation of groups of staff. He said he had observed that Mrs Anders’ relationship with some staff had been damaged and had broken down and that a functioning collegial relationship could not be established if Mrs Anders was to return to the maths faculty. 59

Remedy

[69] In the event that Mrs Anders’ dismissal was found to be unfair and that reinstatement was not considered appropriate by the FWC, Mrs Anders’ evidence was that she lives in the northern suburbs of Hobart and is married with three children aged 10 and younger. From dismissal until the hearing of this matter, Mrs Anders said she had earned approximately $500 undertaking tutoring, and that she had applied (without success) to a number of private schools in the Hobart area, but had not applied in the public education sector for employment.

[70] The Hutchins School said that the maths faculty at the school was operating well since Mrs Anders’ dismissal and the promotion of Mr Seddon to the role of AA had been a success with the timetable being administered well and on time, with a minimum of difficulties. Further, the evidence of a number of The Hutchins School witnesses was that it was not possible for Mrs Anders to return in any orderly way to the maths faculty at the school.

The Applicant’s case

[71] Mr Sachinidis, on behalf of Mrs Anders, provided considerable written closing submissions totalling 102 pages and his closing submissions in-reply were 52 pages in length. Below is a brief outline of those submissions as follows:

• That Mrs Anders totally denied any allegations of threatening Mr Nogajski or Mr Seddon and was not cross-examined on much of the evidence of Mr Nogajski. Further Mrs Anders denied that she treated colleagues in a disrespectful manner.

• That Mrs Anders denied slamming books and papers, staring at or rolling eyes at work colleagues; that there was agreement in evidence that Mrs Anders did not contravene any policy in relation to her request for emergency carer’s leave in October 2014;67 that she did not fail to respond to Mr Grabovszky’s request for subject preferences as she did so verbally; and that she only escalated an IT upgrade request to Mr Dean and Mr Jones (via email on 27 August 2014) because that was the process she was requested to follow and which was laid out in Mr Dean’s letter to her of 13 August 2014.

• That whilst Mrs Anders accepted she told Mr Grabovszky she would “take the school for everything they’ve got”, she apologised shortly thereafter to Mr Grabovszky; and that whilst Mrs Anders admitted she made the comment “I will tell them what I think”68 when referring to the impending CIS audit, she praised the school in the audit process.

• That the findings contained in Mr Jones’ undated letter that was sent to Mrs Anders on 26 November 2014, could not be substantiated and that singularly or jointly the behaviours displayed by Mrs Anders do not constitute a valid reason for termination of employment.

[72] The submissions in relation to remedy on behalf of Mrs Anders were concentrated on the remedy of reinstatement with very little led in relation to the remedy of compensation in lieu of reinstatement other than:73

The Respondent’s case

[73] Ms Mills, on behalf of The Hutchins School, provided written closing submissions. Those submissions are outlined as follows:

[74] As to the argument that the dismissal was harsh, Mrs Mills submitted that whilst Mrs Anders had a good work record there had been some difficulties with other staff (which had not warranted formal considerations), and she had shown she would not accept any form of discipline as to her behaviour. It was said the seriousness of the behaviour warranted termination and there were no other options available.

[75] As to remedy, should the FWC not dismiss the application, The Hutchins School submitted that on all of the evidence, the FWC can be satisfied that reinstatement is inappropriate88 and that of the decisions cited by Mr Sachinidis on behalf of Mrs Anders, none involved the type of behaviour or the workplace context that existed in this matter. It was said that the evidence provided there was no viable employment relationship in existence.

The Applicant’s case in-reply

[76] Mr Sachinidis restated a considerable amount of argument in his in-reply submissions89 and much of which has already been addressed by way of evidence of submissions in this decision. There were some matters identified which provided reference to evidence that countered some submissions made by The Hutchins School relating to when Mrs Anders had advised making a workers compensation claim, and the submission that the FWC should consider it relevant as to whether The Hutchins School provided a safe work environment for Mrs Anders.

[77] Mr Sachinidis also addressed the specific correspondence dated 26 June, 13 August and 9 September 2014 from The Hutchins School to Mrs Anders, arguing, that due to the content of these letters, they could not be considered to be warnings.

[78] It was also submitted that any reliance on interactions between Mr Jones and Mrs Anders as an argument against reinstatement should be discounted due to Mr Jones taking up a position in Western Australia at the end of 2015.90

Legislation

[79] This unfair dismissal application was made pursuant to s.394 of the Act. Sections 385 and 387 are relevant in determining whether the dismissal was harsh, unjust or unreasonable (and therefore unfair). These sections of the Act set out as follows:

Consideration

[80] By virtue of s.385 of the Act, a person has been unfairly dismissed if the Commission is satisfied that:

[81] For the purposes of this matter, sub-section (a) is established and sub-sections (c) and (d) are not relevant. Accordingly, I must determine whether the dismissal of Mrs Anders was harsh, unjust or unreasonable. In determining whether a dismissal was harsh, unjust or unreasonable, the Commission must consider the criteria set out in s.387.

Valid Reason

[82] In Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 Northrop J found (at 373) that a valid reason is one that is “Sound, defensible or well founded”. Northrop J went on to say that “…the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business”. Such a concept embodies the element of fairness in the sense that a valid reason must be defensible and well founded.

[83] In Australian Meat Holdings Pty Ltd v McLaughlan (Q1625), albeit under the Workplace Relations Act 1996, a Full Bench of the Commission relevantly concluded that:

[84] Accordingly, in considering whether there was a valid reason for the dismissal of Mrs Anders, based on events involving her and which were said to have led to a breakdown in trust and confidence, the Commission must firstly determine for itself, on balance, that the conduct occurred and then determine whether or not that conduct had constituted a breakdown of trust and confidence and provided a valid reason for dismissal. In these considerations I have had regard to the information available at the time of the dismissal, the evidence put before me and the authority contained in McVinish v Flight West Airlines, AIRC Full Bench, Print Q5910, per Ross VP, Munro J and Gay C (McVinish). Although McVinish was determined under the predecessor Act (Workplace Relations Act 1996) pursuant to s.170EA, its findings are highly relevant and provided at paragraphs 6 and 7:

[85] I now turn to consider the existence of a valid reason for the dismissal, that being a loss of trust and confidence, and whether that opinion, as held by Mr Dean and Mr Jones, was sound and rationally based.

s.387(a) Was there a valid reason

[86] Firstly, it is clear on the evidence that Mr Dean, as Headmaster, had the discretion to appoint individuals to the positions of responsibility at The Hutchins School. This discretion was available to him by virtue of the Industrial Agreement which provides at clause 15 as follows:

[87] I am satisfied that Mrs Anders was covered by the Industrial Agreement at the time of her dismissal, and that the role of AA was an “additional responsibility” pursuant to cl.15 of the Industrial Agreement. Further, Mrs Anders’ substantive position at The Hutchins School could not have encompassed the position of responsibility due to the discretion afforded to the Headmaster (or his delegate) to appoint individuals to those positions, by virtue of clause 15(ii) of that agreement. Therefore, I find that Mrs Anders’ substantive position was that of a Teacher, classified under the Industrial Agreement at level T8.

[88] Mrs Anders advanced there was no valid reason for her dismissal as the reasons were not justified and do not amount to the seriousness that would warrant dismissal, particularly in view of a lack of any management action on resolving Mrs Anders dispute over the AA role and no opportunity to deal with the relationship issues between herself and Messrs Seddon and Nogajski under the school’s grievance policy. Essentially the submission was that the actions of Mrs Anders were not committed in a vacuum.

[89] The findings contained in the undated letter from Mr Jones (which was given to Mrs Anders on 26 November 2014) are, in my view, central to establishing whether there was a valid reason for termination. The Hutchins School submitted that the Commission should find that the behaviour of Mrs Anders was unsatisfactory and combined, was serious enough to lead to a breakdown of trust and confidence.

[90] The findings made in the undated letter from Mr Jones were that Mrs Anders had:

[91] These findings lead The Hutchins School to conclude that Mrs Anders’ relationship with her employer had broken down.

[92] The investigation of some of the allegations were problematic in that at least one of the complainants, Mr Jones (as to staring and glaring), was also involved in the investigation of his own complaint. This raises a question as to an apprehension of partiality. Mr Dean, Mr Jones and Ms Self’s allegations of eye rolling and staring or glaring were all denied by Mrs Anders. This, together with Mr Jones’ knowledge of Mrs Anders’ mental health issues and his involvement in the investigation of his own complaint, did not provided a reasonable basis for Mr Jones to conclude that each of these allegations were proven. Further, it is not clear exactly what uncooperative, discourteous and disrespectful behaviour was found to be proven, and whether these were incorporated in other allegations that were found to be proven. Mr Jones provided no details as to his findings on these in his letter. Likewise, I am not satisfied that the allegation of Mrs Anders advising Ms Terhell that she did not trust Mr Dean or Mr Jones was proven. Mrs Anders denied this during the meeting of 6 November 201494 and again in her final response95 to Mr Jones’ undated letter. There was no basis, on balance, for Mr Jones to have found the allegation proven only on the say so of Ms Terhell.

[93] I do not consider that Mrs Anders’ action of making a discrimination claim against her employer and advising Mr McNamara of this to be unsatisfactory behaviour. A statutory right exists for Mrs Anders to make such a claim. Management were well aware that Mrs Anders still disputed her removal from the AA role and were aware that she had reserved her rights as to the AA position, even though she had withdrawn her general dispute application with the FWC. Mrs Anders was merely exercising her workplace right to make a claim and discussing this with a work colleague who, in his own evidence, said he had “…allowed her to off-load her thoughts and feelings to me.”96

[94] The evidence given by Mrs Anders was that she accepted she made comments to Mr Grabovszky about the school as to discrimination; that she accused Mr Grabovszky of discrimination and that she did so in an aggressive way. Mr Jones’ findings in relation to these allegations are sound.

[95] I am satisfied that Mrs Anders’ email interactions with Mr Nogajski and Mr Seddon were, at times, short or non-existent. However it should be countenanced in the context of her depression and anxiety and her frustration at her inability to resolve what she saw as the outstanding issues in the workplace, which included a lack of clarity about entering mediation with Mr Seddon and Mr Nogajski.

[96] It is also clear on the evidence that there were at least two Facebook status posts97 that related to her dispute with The Hutchins School and whilst the school was not specifically identified, I accept that a number of staff who were Facebook friends of Mrs Anders would have understood the comments to be in relation to the industrial dispute at the workplace. This gave rise to the possibility of exposing the school to ridicule. A confronting comment made to Mrs Anders’ post by a third party was, I accept, not within the control of Mrs Anders. However it cannot be disputed that the comment would not have been made had Mrs Anders not posted the status to her Facebook page. I accept that the comment made had the propensity to be distressing for those employees who felt they were a target of that comment. Mrs Anders showed a lack of judgement on authoring this Facebook post and was subsequently warned, appropriately, by management. Whilst these matters were not referred to in the letters of allegation leading to the dismissal, they are relevant as they are related to the workplace, involved a warning, and they evidence the behaviour undertaken by Mrs Anders, even though Mr Sachinidis unconvincingly submitted the letter was not a warning.98

[97] Mrs Anders exhibited behaviour that showed a lack of wisdom on her part. These included the Facebook posts, the threats in conversations made to Mr Grabovszky, her request that she not have to greet Messrs Seddon and Nogajski; the shortness of her email responses to Messrs Seddon and Nogajski; and the comment - albeit jokingly and not acted on - in relation to what she would say about the school during the CIS audit process. However it was incumbent on the employer to be active and manage disputes as they arose within the workplace. It is not an option for an employer to be wilfully blind to interpersonal issues within the workplace or to fail to act on them, particularly when there was a clear grievance policy in existence.

[98] I do not accept the Respondent’s submission that Mrs Anders had shown an inability to accept any form of discipline. The evidence provided that following a warning, Mrs Anders had amended her email style and was commended by Mr Dean for this.99

[99] A number of Mr Jones’ findings could not, on the information that was available to him, constitute a sound and rational basis for finding a loss of trust and confidence in Mrs Anders. Having regard to my findings above as to the allegations proven, I am of the view, The Hutchins School have fallen short of establishing a valid reason for termination.

Other criteria when considering harshness etc

s.387(b) Notification of the valid reason

[100] It is clear on the evidence that Mrs Anders was notified on 26 November 2014 via the undated letter from Mr Jones and on 28 November 2014 by letter of the same date, that she was dismissed for the reason of a breakdown in trust and confidence relating to the employment relationship.

s.387(c) Opportunity to respond to any reason

[101] Mrs Anders was afforded a number of opportunities to respond to the reasons and she did so on 6 November 2014 verbally, and on 10, 19 and 27 November 2014 in writing. I am satisfied Mrs Anders had ample opportunity to respond to the allegations and findings relied on by The Hutchins School in dismissing her.

s.387(d) Unreasonable refusal to allow a support person

[102] The Applicant submitted that her termination commenced on 20 December 2013 when the position of AA was removed from her and that she was not advised of the content of that meeting, therefore this amounted to an unreasonable refusal to allow a support person to be present. I do not concur with this argument.

[103] I do not consider the actions of Mr Dean on 20 December 2013 to have constituted a dismissal as I have already found that Mrs Anders’ substantive position is that of a Teacher, and that the Headmaster of the school has the discretion to appoint individuals to that role in accordance with cl.15 of the Industrial Agreement.

[104] Mrs Anders had a support person with her at each meeting from 3 November to 28 November 2014, with no unreasonable refusal on the part of The Hutchins School.

s.387(e) Warnings regarding unsatisfactory performance

[105] It is common ground that this criterion has no relevance in this matter.

s.387(f) Degree to which size of enterprise would likely impact procedures followed

[106] The Hutchins School has almost 200 employees, employs a Business Manager and a Human Resource Advisor. It has administrative and industrial policies and procedures and Mr Dean’s evidence was that the school has regular training in relation to its policies. The Applicant submitted that there is no impact on the dismissal procedures taken due to the size of the enterprise. The Respondent made no submissions in relation to this criterion. I have determined this criterion to have no relevance to the determination of this matter.

s.387(g) Degree to which absence of dedicated human resource management expertise impact procedures followed

[107] The Hutchins School has a dedicated human resource function at the workplace. The Respondent made no submissions to the effect that this criterion was relevant and I have determined this criterion to have no relevance to the determination of this matter.

s.387(h) Other relevant matters

[108] This matter presents a long history which provides the context for the termination of the employment relationship. There are a number of management actions involved in this matter which warrant reference. They are:

[109] Notwithstanding the issues I have identified above, I do not believe The Hutchins School acted with the intention to harm Mrs Anders when it took the decision on 20 December 2013 to change her employment. Although I consider the decision to have been premature, I am of the view it was done with the best of intentions and with consideration to its duty of care, after some action to assist her with her workload. Mr Dean generously offered access to additional leave and the school paid for an additional five weeks of leave to enable Mrs Anders to enjoy a further full academic term off to recover. This is clearly indicative that Mr Dean was bent on his duty of care toward Mrs Anders.

[110] Similarly, Mrs Anders’ inaction not to bring the general dispute of the AA role back before the FWC was a mistake on her part, particularly when it was obvious in November 2014 that the relationship between her and her employer was deteriorating. Indeed the letter from the IEU of 18 July 2014 states “Should an agreement not be reached, Ms Anders may initiate further proceedings in relation to the demotion without further notice.”102

[111] Having regard to all of the evidence, I am satisfied that Mrs Anders’ very good employment history with The Hutchins School; her diagnosis of suffering from a mental illness; the occurrence of her husband being critically ill in the weeks immediately prior to the Respondent’s first allegation letter and at a time when some of the allegations were said to have occurred; management’s inaction in addressing what were clearly relationship difficulties between Mrs Anders and Messrs Seddon and Nogajski and to some extent Ms Grabovszky, are matters all in her favour and should add to the previous finding that there was not valid reason for dismissal. The act of dismissal on the basis of a breakdown in trust and confidence was harsh and disproportionate to the actions of Mrs Anders which I have found occurred. I have included Mrs Anders’ previous Facebook posts as part of my considerations in this regard.

Conclusion as to Merit

[112] Having considered all of the criteria of s.387 I find there was no valid reason for dismissal and that the dismissal was harsh and disproportionate, unjust and unreasonable and therefore unfair. I now turn to determine the remedy that should be applied.

Remedy

[113] Section 390 describes the circumstances of when a remedy order may be made:

[114] The jurisdictional preconditions in s.390(1)(a) and (b) are satisfied and I will now consider whether to order the reinstatement of Mrs Anders or, if reinstatement is inappropriate, whether an order for the payment of compensation be made to Mrs Anders.

Reinstatement as the primary remedy for an unfair dismissal

[115] Subsection 390(3) provides the primacy of reinstatement as a remedy for an unfair dismissal with compensation only to be ordered where the FWC considers reinstatement inappropriate. Part 3-2 of the Act, which contains the unfair dismissal provisions, evidences that an object of that Part, at s.381(1)(c), is “to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.” The question in determining whether to grant reinstatement of an employee who has been unfairly dismissed is whether that is appropriate in the particular case.

[116] The Hutchins School advanced the argument that reinstatement is inappropriate in this matter as there has been a loss of trust and confidence, and it is impossible for any re-establishment of the employment relationship with Mrs Anders. This argument is not uncommon in unfair dismissal matters. Loss of trust and confidence concerns what is essential to make an employment relationship work. In Australasian Meat Industry Employees’ Union v G & K O’Connor Pty Ltd103 Gray J observed that the development of law relating to the employment relationship and trust and confidence started when that relationship customarily involved a close personal relationship between employer and employee, but that the importance of trust and confidence has diminished with the rise of corporate employers.104 That is not to say that trust and confidence is not important, however an assessment must be made as to the likely effect of any loss of trust and confidence on workplace operations and all circumstances must be taken into account.

[117] Relevant to this the Full Court of the Industrial Relations Court, under the Workplace Relations Act 1996, in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 said of a reinstatement remedy at 191:

[118] The more recent Fair Work Australia Full Bench decision in Regional Express Holdings Limited v Richards [2010] FWAFB 8753 also observed at paragraph [26]:

Is reinstatement appropriate?

[119] In McVinish the Full Bench concluded, relevant to this matter:

[120] The Full Bench in McVinish considered it appropriate to order the reinstatement of Captain McVinish, having held that reinstatement was not impracticable.105 However in this matter, having considered on balance all of the matters put before me, including the size of the maths faculty at The Hutchins School, the relationship between Mrs Anders and Mr Seddon, Mr Nogajski and the management at the school, I have not arrived at the same conclusion.

[121] I have determined, despite my finding that there was no valid reason for termination, that reinstatement of Mrs Anders is inappropriate. In my view reinstatement is impracticable and would affect the continued functioning and harmony of the enterprise and seriously affect productivity and outcomes for students. I am satisfied there is no ability to re-establish a collegial working relationship in the maths faculty and, due to the nature of the business, there are no other palliatives to be availed of. Considering all the circumstances of the case, an order for compensation in lieu of reinstatement is appropriate.

[122] It is important that I deal with the evidence introduced by The Hutchins School late in the proceedings through Mr Nogajski, relating to his concerns about his relationship with Mrs Anders and the hearsay nature of those comments. I accept the submissions of Mr Sachinidis that Mrs Anders was not cross-examined on this evidence. I consider this gives rise to the rule in Browne v Dunn106 where the High Court emphasised the need for care when attributing significance to evidence where counsel failed to put an aspect of its case to a witness on the other side, especially where it is otherwise apparent that the proposition which is not put is in issue. There is an exception to the general rule in Browne v Dunn where prior notice of points in contention has been given. Where the witness has prior notice that there is other material in the proceedings that will be relied upon to contradict the evidence of the witness, it is not necessary to raise the issue with the witness in cross-examination.

[123] Having considered the points in Mr Nogajski’s witness statement, I consider the evidence that was later introduced contained new material which would therefore not invoke the exception to the general rule. Accordingly, in coming to my determination, I gave no weight to the email exchange between Ms Terhell and Mr Nogajski.107

Conclusion

[124] I am satisfied Mrs Anders’ dismissal was unfair and have concluded that, in all the circumstances, reinstatement of Mrs Anders is impracticable and that compensation, pursuant to s.392 of the Act, is appropriate.

[125] Despite a request from the FWC to the parties to comprehensively address all aspects of remedy in closing submissions, the submissions on behalf of both parties were lacking in detail as to the criteria for the payment of compensation. To enable assessment of compensation relevant in these matters, I will hear from the parties further in relation to criteria contained in s.392. A notice of listing will issue separately for this hearing.

DEPUTY PRESIDENT

Appearances:

Mr A Sachinidis, for the Applicant

Ms A Mills, for the Respondent

Hearing details:

Hobart

2015

1,2,3,17,18 June

10,11,12,13 August

9,10 September

Final written submissions:

2015

25 October

 1   Agreement ID: AE404499

 2   Clause 15 of the Industrial Agreement

 3   Exhibit A4

 4   Exhibit A1 – Witness Statement of Richard Mecklenburgh, dated April 2015

 5   Exhibit A36 – Witness Statement of Roy Oscar Servant, dated April 2015

 6   Exhibit A37 – Witness Statement of Peter Crofts, dated April 2015

 7   Exhibit A38 – Witness Statement of Sally Westcott, dated April 2015

 8   Exhibit R5 – Witness Statement of Warwick Dean, dated 1 May 2015

 9   Exhibit R6 – Witness Statement of Alan Jones, dated 1 May 2015

 10   Exhibit R12 – Witness Statement of James Seddon, dated 1 May 2015

 11   Exhibit R13 – Witness Statement of Samuel Jonathan Nogajski, dated 1 May 2015

 12   Exhibit R18 – Witness Statement of Jenny Self, dated 12 June 2015

 13   Exhibit R19 – Witness Statement of Timothy Michael Grabovszky, dated 30 April 2015

 14   Exhibit R20 – Witness Statement of Roger McNamara, dated 1 May 2015

 15   Exhibit A4 – Witness Statement of Mary-Jane Anders, dated 8 April 2015, Attachment 34

 16   Exhibit A4 – Attachment 10

 17   Exhibit A4, Attachment 24

 18   Exhibit A4 – Attachment 24

 19   Exhibit A4 – Attachment 28

 20   Exhibit A4 – Attachments 31 and 32

 21   Exhibit A4 – Attachment 28

 22   Exhibit A4, Attachment 32

 23   Exhibit A4, Attachment 34

 24   Exhibit R6, attachment R12

 25   Ibid, attachment R14

 26   Exhibit R6, paragraph 118

 27   Exhibit R6, Attachment R20

 28   Exhibit A4, Attachment 82

 29   Exhibit A13 – Return to Work and Injury Management Plan 2, by Katie Bishop Rehabilitation Consultant

 30   Transcript, PN11420

 31   Transcript, PN12217

 32   Exhibit A4, Attachment 92

 33   Exhibit R19, paragraph 12

 34   Exhibit R19, paragraph 17

 35   Exhibit A4, paragraph 148

 36   Exhibit A4, paragraph 158

 37   Exhibit A4, paragraph 160

 38   Exhibit A4, Attachment 121 – Supervisions (Classroom) 2014

 39   Exhibit A4, paragraph 196

 40   Exhibit A4, paragraph 201

 41   Exhibit A4, Attachment 128

 42   Exhibit A4, paragraph 212

 43   Exhibit A4, Attachment 131

 44   Exhibit A4, Attachment 132

 45   Exhibit A4, Attachment 133

 46   Exhibit A4, Attachment 139

 47   Exhibit A4, Attachment 140

 48   Exhibit A4, Attachment 141

 49   Exhibit A4, Attachment 142

 50   Exhibit A4, Attachment 143

 51   Exhibit A4, Attachment 144

 52   Exhibit A4, Attachment 103

 53   Exhibit R6, paragraph 86

 54   Transcript, PN11484-11485

 55   Transcript, PN11423

 56   Transcript, PN12243

 57   Transcript, PN12221

 58   Exhibit R18, paragraph 21

 59   Transcript, PN13574

60 Exhibit A4, Attachment 30

61 Exhibit A40, paragraph 41

62 Ibid, paragraph 175

63 Ibid, paragraph 164

64 Exhibit A6

65 Ibid, paragraph 102

66 Exhibit A40, paragraph 198

67 Ibid, paragraph 198(e)

68 Exhibit A4, Attachment 142

69 Exhibit A40, paragraph 274

70 Ibid, paragraph 276

71 Ibid, paragraph 218

72 Ibid, paragraphs 334 to 360

73 Ibid, paragraphs 375-376

74 Exhibit R21 - Respondent’s closing submissions, paragraph 5

75 Ibid, paragraph 10-11

76 Transcript PN12516, Exhibit R21, paragraph 20

77 Exhibit R6, paragraphs 96-97

78 Ibid, Attachment R14

79 Exhibit R21, paragraphs 57-62

80 Transcript PN3894 and PN3901

81 Agreement ID: AE404499, clause 15(iii)(d) and 15 (iv)(b)

82 Exhibit R21, paragraphs 83-85

83 Ibid, paragraph 90-92

84 Ibid, paragraph 110

85 Ibid, paragraph 126

86 Exhibit R5, Attachment R5

87 Exhibit R21, paragraph 164

88 Ibid, paragraphs 173-189

89 Exhibit A42, Applicant’s closing submissions in reply

90 Exhibit A42, Attachment – Hutchins Communique, 13 October 2015

91 (1998) 865 FCA (24 July 1998)

92 Ibid.

93 Perkins v Grace Worldwide (970015) 7 February 1997 per Wilcox CJ, Marshall and North JJ

94 Exhibit A4, Attachment 130

95 Ibid, Attachment 143, page 6

96 Exhibit R20, paragraph 4

97 Exhibit R6, Attachment R12

98 Exhibit R42, paragraph 41

99 Exhibit R6, Attachment R22

100 Exhibit A4, Attachment 21

101 Ibid, Attachment 10

102 Ibid, Attachment 68

103 [2000] FCA 627

104 Ibid at [42]

105 McVinish v Flight West Airlines, AIRC Full Bench, Print Q5910 at [58]

106 (1983) 6 R 67

107 Exhibit R17 – String of emails between S Nogajski and A Terhell from 14 to 19 August 2014

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