[2017] FWC 4231
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394—Unfair dismissal

Frances Newchurch
v
Tangentyere Council Aboriginal Corporation
(U2016/15087)

COMMISSIONER BISSETT

MELBOURNE, 25 AUGUST 2017

[1] Ms Frances Newchurch was employed by Tangentyere Council Aboriginal Corporation (TCAC) as a cook. Her employment was terminated on 28 November 2016. Ms Newchurch says that her dismissal was unfair and has sought relief pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] Prior to the hearing of the application I granted permission to TCAC to be represented at the hearing.

Background

[3] TCAC provides a range of services to the Indigenous population in and around Alice Springs including employment through the federal government Community Development Program (CDP), social services, child care as well as other community services. It has a substantial number of participants in CDP and has about 40 employees.

[4] Ms Newchurch was first placed with TCAC on 4 February 2016 on a “work for the dole” program for a 10 week period. She was engaged in services in the kitchen of TCAC (then a program offered) preparing and delivering meals for participants in employment programs delivered by TCAC. Ms Newchurch’s work was of a good quality and she was identified for direct employment.

[5] On 11 April 2016 Ms Newchurch commenced working for TCAC in the kitchen as a casual employee. On 4 July 2016 Ms Newchurch was offered and accepted permanent part-time employment with TCAC of 25 hours per week.

[6] Whilst working in the kitchen Ms Newchurch’s immediate supervisors were Ms Kara Dodson and Mr Sasha Rosalski.

[7] On 27 July 2016 there was an incident in the kitchen involving Ms Newchurch, Ms Dodson and Mr Rosalski

[8] On 8 August 2016 Ms Newchurch apparently made a complaint to the Human Resources (HR) area of TCAC about how she was being treated by her supervisors. The complaint related in particular to an incident on 27 July 2016. She further complained about the conduct of a meeting with Mr Ellem on 3 August 2016 with respect to the menus and a food for preparation and then about an incident on 5 August 2016 in relation to comments Ms Dodson was alleged to have made to another kitchen worker.

[9] From 9 to 12 August 2016 Ms Newchurch was absent on personal leave. She returned to work on 15 August 2016.

[10] On 15 August 2016 a meeting was held with Ms Newchurch. The meeting was attended by Ms Newchurch, Ms Shaye Jordan (HR Manager) and Ms Renee Smith (HR Officer).

[11] On 11 November 2016 there was an incident at work involving Ms Newchurch and Ms Dodson and, to a lesser degree, Mr Rosalski. Ms Dodson emailed HR about the incident and Mr Rosalski lodged an incident report form and also emailed HR about the incident.

[12] On 15 November 2016 a meeting of Indigenous employees of TCAC was held to discuss specific concerns they had about some of the workplace matters at TCAC. A number of Ms Newchurch’s complaints about the kitchen and supervision were raised and discussed at the meeting.

[13] On 28 November 2016 Ms Newchurch was called to a meeting where she was advised that her employment had been terminated.

Witness evidence

[14] Evidence was given in the proceedings by Ms Newchurch on her own behalf.

[15] Evidence was also given on behalf of TCAC by Mr Matthew Ellem, General Manager Employment Services, Mr Patrick McDonald, Chief Operating Officer, Mr Sasha Rosalski, CDP Development Co-ordinator and Ms Renee Smith, Human Resource Manager.

[16] Mr McDonald was the relevant decision maker with respect to the decision to dismiss Ms Newchurch. He gave evidence that Ms Newchurch’s employment was terminated because she was deemed not to be a “good fit for the role” 1 in which she had been employed. He said that that decision was reached by him on the basis of the advice he received from his managers.

[17] Mr McDonald attended the meeting of Indigenous staff on 15 November 2016. He said that as a result of the matters expressed in the meeting by Ms Newchurch he spoke to her about the kitchen reporting structure, who her supervisors were [Ms Dodson and Mr Rosalski] and that she was required to take direction from them. He also said that she should try and address any concerns directly with her supervisors but that if she felt she had been treated unfairly she should put in an incident report and have a discussion with the HR manager. 2

[18] Mr Ellem gave evidence that Ms Newchurch’s conduct and performance when she was on the work for the dole program and when she was a casual employee of TCAC were very good. It was because of this that she was offered permanent part-time employment. He said that once she became a permanent employee there were issues with respect to how she took direction from and communicated with Ms Dodson and Mr Rosalski. In addition she was ordering food that required extra preparation and resisted changes to the meal plan for participants adding to the costs of providing meals.

[19] On 3 August 2016 Ms Newchurch met with Mr Ellem where he advised her that meals would no longer be cooked “from scratch” but rather pre-prepared meals would be bought that could be heated and delivered to program participants.

[20] Mr Ellem said he met with Ms Newchurch on 15 August 2016 3 about an incident in which Ms Newchurch had ordered Ms Dodson out of the kitchen. He said that Ms Newchurch accepted that she had spoken inappropriately to Ms Dodson and that, while she did not want other people coming into the kitchen, she accepted that Ms Dodson and Mr Rosalski had a legitimate role in doing so. Mr Ellem said that, as a result of the meeting, Ms Newchurch agreed to abide by the code of conduct and to accept direction from her supervisors.4

[21] Mr Ellem said that, while there were further reported incidents between Ms Newchurch and Ms Dodson (although he did not witness them), the next major incident occurred in November 2016 and it was a result of this that TCAC decided to terminate Ms Newchurch’s employment. Mr Ellem said he did not witness the incident but was advised of it by Ms Dodson and Mr Rosalski and that it ended in Ms Newchurch telling Ms Dodson to “shut up” and ordering her out of the kitchen. Mr Ellem said that Ms Dodson was shaken after the incident.

[22] Mr Rosalski gave evidence that once Ms Newchurch was appointed as a permanent employee her behaviour began to change. He said she started to refuse to take direction over the logistics of the kitchen and menu changes, argued about matters and constantly questioned decisions of her supervisors.

[23] Mr Rosalski said that on 27 July 2016 he had gone into the kitchen and saw that Ms Newchurch needed some assistance. He said this was discussed but “something was lost in translation” and Ms Newchurch yelled at him to “get out of the kitchen”. 5

[24] Mr Rosalski said he attended a meeting with Ms Newchurch, Ms Dodson, Ms Jordan and Mr Ellem on 15 August 2016 to discuss Ms Newchurch’s behaviour (although later agreed the meeting was on 16 August 2016). He said that Ms Newchurch was advised that her employment could not continue if her behaviour continued as it had and that she had to accept that both he and Ms Dodson had the right to supervise her and the kitchen. He said that Ms Newchurch understood what was being put to her and that she agreed to change her behaviour. Mr Rosalski thought the meeting had taken place in Ms Jordan’s office at the Elder Street premises. He does not recall such a meeting occurring at the Brown Street premises (where Ms Newchurch was based).

[25] Mr Rosalski said he considered that the meeting of 16 August 2016 had been a performance review meeting as part of Ms Newchurch’s probationary period and that it related not only to the incident of 27 July 2017 but to other incidents as well.

[26] Mr Rosalski said that nothing outstanding occurred with respect to Ms Newchurch until 11 November 2016. He said he was not initially present with Ms Newchurch and Ms Dodson but heard raised voices (although cannot recall what was said) and went to investigate. Whilst he completed an incident report 6 in which he said that Ms Newchurch displayed “aggressive behaviour directed towards Kara Dodson in the form of verbal abuse” he could not recall any details of the words spoken. On the incident report form Mr Rosalski indicated that he attempted to defuse the situation by separating the parties and by asking Ms Newchurch to stop commenting further. The incident report form indicates that this “triggered a further tirade towards” Mr Rosalski. In this respect he says she “breached her agreement” of 16 August 2017.

[27] Mr Rosalski then referred the matter to HR and left it to them to deal with.

[28] Mr Rosalski denied he had yelled at Ms Newchurch but said he may have raised his voice so that he could be heard as he tried to separate Ms Newchurch and Ms Dodson.

[29] Mr Rosalski agreed that in his email of complaint to HR on 11 November 2016 he expressed the view that Ms Newchurch’s employment should not continue. He said that he understood Ms Dodson had “numerous run-ins” 7 with Ms Newchurch, which had been reported to HR and he had numerous informal discussions with her about matters associated with her work.

[30] Mr Rosalski said that he did not recall flicking menus in Ms Newchurch’s face, Ms Dodson standing by laughing or there being any particular conversation between Ms Dodson and Ms Newchurch on 15 August 2016.

[31] Ms Renee Smith is the current HR Manager at TCAC. She commenced in that role in September 2016, taking over from Ms Jordan. Prior to this Ms Smith was the HR Officer.

[32] Ms Smith gave evidence that she first dealt with Ms Newchurch in August 2016 when Ms Newchurch spoke to her of issues she had at work. Ms Smith advised Ms Newchurch to put her complaints in writing. Ms Newchurch did so and on 15 August 2016 Ms Jordan and Ms Smith spoke to Ms Newchurch and to those Ms Newchurch said had witnessed the incidents of which she complained.

[33] Ms Smith recalls that Ms Newchurch complained that Ms Dodson taunted her and laughed at her, that Ms Dodson and others tried to take over the menu and that she had been told she could not cook fresh meals anymore but had to heat up pre-prepared food.

[34] Ms Smith said they spoke toa number of the witnesses named by Ms Newchurch 8 but they did not hear anything untoward or did not feel that Ms Dodson had spoken inappropriately to Ms Newchurch.

[35] Ms Smith did not attend the meeting on 16 August 2016 between Ms Newchurch and Ms Jordan, Mr Ellem, Ms Dodson and Mr Rosalski.

[36] Ms Smith said that Ms Newchurch next came to her attention in September 2016 when Ms Dodson and Mr Rosalski raised some concerns with her behaviour.

[37] In November she said she received emails from Ms Dodson and Mr Rosalski and an incident report from Mr Rosalski. On receipt of this information Ms Smith said discussions commenced about the future of Ms Newchurch’s employment.

[38] Ms Smith agreed that some complaints were made about Ms Dodson at the Indigenous staff meeting on 15 November 2016 but that the only written complaint received was that of Ms Newchurch. 9

[39] Whilst Ms Dodson submitted a witness statement in the proceedings she was unavailable to give evidence. Her statement is that the issues she had with Ms Newchurch were that she:

[40] Ms Dodson’s written statement sets out a series of complaints with respect to specific incidents including 27 July 2016 and 11 November 2016. Of these, Ms Dodson’s written statement says that on 27 July 2016 she went to the kitchen to see if she could help Ms Newchurch sought out a problem with the lunch numbers. The statement says that Ms Newchurch quickly lost her temper and yelled loudly at Ms Dodson in front of others to “get out of the kitchen…its none of your business”. 10

[41] Ms Dodson’s written statement is that on 11 November 2017 she went to the kitchen to collect her own lunch. She noticed that Ms Newchurch had changed a system previously agreed about how salt and pepper and napkins were distributed with the meals. She asked Ms Newchurch why she had gone back to the old system and Ms Newchurch yelled at her that “[i]t’s none of your business what you think is right for the participants. Get out of my kitchen!! I think you need talking to by Patrick…You are not in charge of the kitchen I am” Ms Dodson’s statement is that Mr Rosalski came along at that time and Ms Newchurch kept yelling “[d]on’t micromanage me. It’s my kitchen. It’s nothing to do with you!!” 11

[42] Ms Dodson sent an email to Ms Bray (Smith), Ms Jordan, Mr Ellem and Mr Nicholas Cowman of TCAC that day setting out her account of the incident and of earlier incidents on 7 and 10 November 2016.

[43] Ms Jordan is no longer an employee of TCAC and no witness statement was filed by her.

[44] Ms Newchurch said that when she commenced employment with TCAC she was cooking meals from scratch twice a week and preparing lunches from pre-prepared food on the other three days. On 3 August 2016 she was told by Mr Ellem that she was to stop preparing meals from scratch and move to pre-prepared food each day. Whilst Ms Newchurch did not agree with this approach (she did not consider the food choices were a healthy option) she said that she did as she was directed after she finished off the fresh food that had already been purchased.

[45] Ms Newchurch said that on 27 July 2017 the kitchen workers did not arrive for work. She said that Mr Rosalski arrived and started grabbing lunch bags and re-packing them. She said she already had the lunches sorted into programs and numbers but Mr Rosalski was changing it. She asked Mr Rosalski to stop for a minute because she already had it sorted out however he kept taking the lunches out to the van for delivery. He also took her list that had the numbers of lunches required for each program. She said that she again asked him to stop. She then heard Ms Dodson behind her who said that Mr Rosalski was just helping. Ms Newchurch said that Mr Rosalski was causing confusion. Ms Newchurch said she followed Mr Rosalski to the van and asked for the list so she could finish sorting the lunches. When she came back in she said that things snowballed.

[46] Ms Newchurch said she was upset and Ms Dodson was pulling faces. When she went to leave the kitchen Ms Dodson stopped her by blocking her path and moving to continue to block her path as Ms Newchurch tried to go around her. Ms Newchurch said that before she could get past her Ms Dodson spun around and leaned her back into Ms Newchurch’s chest and was rubbing her back against Ms Newchurch.

[47] Ms Newchurch said she was offended by Ms Dodson’s actions, that she had to hold Ms Dodson off her at arm’s length and that, when Mr Rosalski returned, both he and Ms Dodson were laughing. Ms Newchurch said she had not raised this particular part of the incident before because she was embarrassed by it and felt violated.

[48] Ms Newchurch said she did not yell at Mr Rosalski but she did ask him and Ms Dodson to leave the kitchen.

[49] Ms Newchurch said that, as a result of the incident on 27 July 2016, she met with Ms Smith and then put a formal complaint to HR in writing with respect to that incident and also her meeting with Mr Ellem on 3 August 2016. 12

[50] Ms Newchurch said that on 11 November 2016 Ms Dodson came into the kitchen and said that she did not want individual lunch bags made up with salt and pepper portions or cutlery put in them. Ms Newchurch said she told Ms Dodson that another employee made up the bags so she should speak to that person. She asked Ms Dodson what the problem was and Ms Dodson replied that it took up too much time.

[51] Ms Newchurch said that she then left to go to the toilet. She saw Mr Rosalski who asked how she was and she said “okay” at which point Ms Dodson said “No, she’s not. She’s just finished arguing with me.” 13 Ms Newchurch said the conversation turned into one about salad preparation, she asked that she at least be allowed to make salads and that she not be micro-managed. She said that Mr Rosalski then took an “arrogant” stance and told her to “shut up”. She said “don’t talk to me like that” and then said “what if I told you to shut up and get into the office”. Another employee then intervened and led Ms Newchurch away.

[52] Ms Newchurch said that she was not verbally aggressive during this interchange and that Mr Rosalski told her to “shut up”. Ms Newchurch questioned Ms Dodson and Mr Rosalski’s version of the incident.

[53] Ms Newchurch agreed that she had been given a direction to not place salt and pepper in individual lunch bags but maintained that this was the work of another kitchen worker (Denise) who was also supervised by Ms Dodson.

[54] Ms Newchurch agreed that she attended a meeting with Mr Ellem, Ms Jordan, Ms Dodson and Mr Rosalski on 16 August 2016. She did not agree that it was about her behaviour and said it was not put to her that she needed to change her behaviour. She said that the meeting was a result of the complaint she had put in and that Ms Jordan had said that they would re-set the relationship from there. Ms Newchurch said they then discussed the cleaning schedule.

[55] Ms Newchurch said that she did not have problems taking direction from a white person as suggested in Ms Dodson’s written statement.

[56] She did agree that she and Ms Dodson did not see eye to eye and that they both had loud voices.

[57] Ms Newchurch disputed a number of matters raised in Ms Dodson’s written statement either as to whether the incidents occurred or the accuracy or time they were said to have occurred.

[58] Ms Newchurch said she was not given any advance notice of the meeting of 28 November 2016 when her employment was terminated and that, in terminating her employment, TCAC had not acted in accordance with its policies or enterprise agreement. She did not elaborate on what these breaches were.

The letter of complaint of Ms Newchurch and the admission of new evidence

[59] During the hearing of Ms Newchurch’s application it became apparent that there was some question over whether Ms Newchurch had, in fact, sent her letter of complaint to TCAC HR as she claimed. TCAC said that it could not be concluded that she had made such a complaint as there was no facsimile transmission report (Ms Newchurch said she sent it be facsimile) or other evidence that it had been sent to, or received by, TCAC. A search of TCAC’s records for a copy of the complaint, by order of the Commission, failed to discover any copy of the complaint in the TCAC’s records.

[60] TCAC submitted I could not rely on the evidence of Ms Smith to conclude that the complaint had been received as Ms Jordan was, at that time, the HR Manager and the complaint would have been directed to her.

[61] TCAC sought leave to have the case re-opened to enable it to provide evidence from Ms Jordan on the receipt of the alleged written complaint. I declined this request for the following reason:

[62] To now admit further evidence as sought by TCAC that contradicts the evidence of TCAC’s own witness is neither fair nor reasonable. To do so would require re-calling Ms Smith as much of her evidence would now be contradicted. TCAC chose the best evidence it had to put forward. It chose not to call Ms Jordan.

[63] Whilst I appreciate that this case has been complex to manage – Ms Newchurch has not been represented and the materials filed by her in support of her case were not always clear – my decision as to the merits of her application does not rely, in its totality, on the existence of the complaint by Ms Newchurch. In any event the minutes of the meeting of 15 August 2016 between Ms Jordan, Ms Smith and Ms Newchurch support a conclusion that Ms Newchurch raised matters of concern with her supervisors and of her meetings with Mr Ellem at that time.

[64] To the extent that it is necessary for other matters in this decision, and based on the evidence of Ms Smith, I am satisfied that Ms Newchurch did put in a formal complaint in writing to HR in which she raised matters associated with the incident on 27 July 2016, her meeting with Mr Ellem on 3 August 2016 and general complaints about Ms Dodson and Mr Rosalski.

[65] Whilst a copy of the complaint could not be located by TCAC and Ms Newchurch did not have a facsimile transmission report as proof that she had put the complaint in, the evidence of Ms Smith as set out above clearly suggests that action was taken in response to the complaint. The minutes of the meeting Ms Jordan and Ms Smith had with Ms Newchurch on 15 August 2016 only make sense in the context of Ms Newchurch having made the written complaint as put before the Commission.

[66] I have therefore accepted the material previously marked for identification as evidence of the complaint made by Ms Newchurch to HR. 17

Unfair dismissal

[67] The relevant legislation to the determination of this matter states:

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold…

384 Period of employment

(1)  An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis…

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

[68] With respect to the initial matters I am required to consider I am satisfied that the application for relief from unfair dismissal was made within the required time, that the Small Business Fair Dismissal Code does not apply and that the dismissal did not relate to redundancy.

[69] Whether Ms Newchurch is protected from unfair dismissal depends on her having served the minimum employment period of six months. There is no dispute that her employment was covered by an enterprise agreement.

[70] Ms Newchurch commenced permanent employment with TCAC on 4 July 2016. Her employment was terminated on 28 November 2016. This period of employment does not meet the minimum employment period requirements of the FW Act.

[71] However, TCAC now accepts that the period of casual employment of Ms Newchurch from 18 April 2016 until 4 July 2016 was “regular and systematic” casual employment such that it should be taken into account in determining her period of employment for the purposes of the FW Act. 18

[72] For this reason I am satisfied that Ms Newchurch does meet the minimum employment period and that she is therefore protected from unfair dismissal.

[73] In determining if Ms Newchurch was unfairly dismissed it is also necessary for me to consider, pursuant to s.385(b) of the FW Act, if the dismissal was harsh, unjust or unreasonable.

[74] The criteria to be considered in determining if the dismissal was harsh, unjust or unreasonable are set out in s. 387 of the FW Act 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.

Section 387 (a) - a valid reason for dismissal

[75] For a reason to be valid it must be “sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced cannot be a valid reason”. 19

[76] Where the dismissal has been for reasons of misconduct it is necessary for the Commission to be satisfied that the conduct did, in fact, occur.20 Such an assessment must be made on the basis of the evidence before the Commission.

[77] Ms Newchurch’s employment was terminated because of her conduct on 11 November 2016 in addition to previous conduct, in particular that of 27 July 2016. The 11 November 2016 conduct was considered to breach the undertaking Ms Newchurch had given on 16 August 2016 following the 27 July 2016 matter and the investigation into her complaint of 8 August 2016.

[78] Given the highly contested nature of the evidence in relation to Ms Newchurch’s conduct on these occasions I have given little weight to the unsworn and untested statement of Ms Dodson. She was unavailable for cross-examination and would not have been available for some time. Her written statement is just that, it cannot be treated as reliable evidence.

[79] The only direct evidence I have of the incident of 11 November 2016 is from Ms Newchurch and Mr Rosalski who, in any event, only observed part of the incident.

[80] Mr Rosalski’s recollection of the incident is scant to say the least. The incident was severe enough for him to complete a formal incident report, which is of some evidentiary value having been completed at the time, but he could not recall details of the incident including the language used.

[81] I accept that Mr Rosalski heard raised voices from Ms Newchurch and Ms Dodson. I also accept that Mr Rosalski may have raised his voice in order to exert some influence over Ms Newchurch and Ms Dodson to have them calm down. I make no adverse finding in relation to Mr Rosalski of this. It is a reasonable response when trying to bring some control to such a situation.

[82] Having observed Mr Rosalski in the witness box I do not accept that he acted in an intimidating manner towards Ms Newchurch or that he was aggressive. His demeanour as a witness does not suggest such conduct of him.

[83] I accept that Ms Newchurch raised her voice on this occasion. She agreed that she and Ms Dodson did not see eye to eye and that they both had loud voices. Ms Newchurch was not happy about the change to only using pre-prepared food for participants and had indicated this to Mr Ellem. I accept that she was forthright in expressing her view on this and other kitchen-related matters to Ms Dodson.

[84] I am satisfied that Ms Newchurch saw Ms Dodson’s comments about the salt and pepper in individual lunch bags (when she considered there were reasonable grounds to continue with past practices at least until the stock had run down) as micro-managing her work. What, on its face, did not appear to be a major incident appears to have escalated for reasons that, given the lack of evidence from Ms Dodson, are unexplained.

[85] I am also satisfied that there was an exchange of words between Ms Newchurch and Ms Dodson and Mr Rosalski on 27 July 2017. I accept the evidence of Mr Rosalski that he thought they were helping but am prepared to accept that the effect of their help was to disturb a well-practiced system Ms Newchurch had for sorting and packing the lunches for delivery. I accept that Ms Newchurch was exasperated by the help. Further, I am satisfied that the situation snowballed, in part due to the simmering tensions between Ms Newchurch and Ms Dodson.

[86] I am satisfied that Ms Dodson did try and prevent Ms Newchurch from leaving the kitchen on 27 July 2016. Whether she did this as a joke or whether she was trying to have the last word is not clear. This is not a matter Ms Dodson addressed in her written statement. On the evidence before me I am satisfied however that Ms Dodson’s actions contributed to the incident.

[87] It is difficult, in the circumstances, to determine whether Ms Dodson intentionally touched or rubbed herself against Ms Newchurch but I have no doubt that some contact occurred and that this had caused some distress to Ms Newchurch. I can appreciate that, as an older woman, she was embarrassed by the incident. Her distress at recounting the incident was real. I read nothing into the delay in the matter being aired.

[88] To the extent that other incidents may have been relied upon no evidence of such incidents was before the Commission. Mr Ellem said there was further reported incidents between Ms Newchurch and Ms Dodson however he provided no evidence of them. To the extent they may be detailed in the written statement of Ms Dodson I have not had regard to them. Most of Ms Dodson’s statement was questioned by Ms Newchurch and Ms Dodson was not available to attest to her statement or be cross-examined with respect to its contents.

[89] Ms Newchurch was well considered in her evidence and she had a remarkable memory for dates. She gave her evidence in a dignified manner and retained this under cross-examination towards the end of a lengthy hearing day. I have no reason to doubt her evidence although I am satisfied she glossed over some incidents that did not show her in the best light. Whilst I have generally accepted her evidence, she was not without fault.

[90] Whilst I am satisfied that the incidents of 27 July 2016 and 11 November 2016 did occur there is nothing to suggest that they provided a valid reason for dismissal. I am not convinced that the actions of Ms Dodson and, to a much lesser extent, Mr Rosalski did not contribute to the incidents escalating as they did such that all of the blame should be laid at the feet of Ms Newchurch. The incidents were certainly testing and may well have warranted some action including intervention in assisting Ms Newchurch and Ms Dodson in their working relationship. It is not clear that, even if the meeting on 16 August 2016 was intended to achieve this, any follow up or clarification of the outcomes of the meeting was undertaken such that the expectations of Ms Newchurch were clear.

[91] I am not convinced that the meeting of 16 August 2016 between Ms Newchurch, Mr Ellem, Ms Dodson, Mr Rosalski and Ms Jordan properly closed off Ms Newchurch’s grievances. It is certainly surprising that what apparently started as an investigation into complaints of Ms Newchurch (and the notes of the meeting of 15 August 2016 21 support this) resulted in a warning to her the next day with respect to her conduct. The notes of the meeting between Ms Newchurch, Ms Jordan and Ms Smith on 15 August 2016 give no indication that Ms Newchurch’s conduct was at issue. It is not surprising to this extent that Ms Newchurch had a different view as to the purpose and outcome of the meeting of 16 August 2106.

[92] Ms Newchurch attended this meeting thinking it was about the resolution of her complaint. There is no evidence that it was in respect to her conduct as suggested by Mr Ellem (except to the extent that the conduct occurred on 27 July 2016 which was one of the matters in Ms Newchurch’s complaint) or a performance review meeting as suggested by Mr Rosalski. If the meeting was of such importance that Ms Newchurch’s further employment was contingent on her abiding by its outcomes it is surprising that it was not thought the outcomes should be committed to writing. It is surprising that there were no notes made of the meeting of 16 August 2016 and no warning was put in writing to Ms Newchurch.

[93] Ms Newchurch is articulate and clearly competent. She thought she was employed as a cook. Changes at TCAC on the use of pre-prepared meals, whilst a legitimate business decision, meant that the reason for her employment had changed. I accept that she was frustrated by this decision and she expressed this frustration.

[94] I accept that Mr McDonald thought that he was terminating Ms Newchurch’s employment during her probationary period and he did this because she was “not a good fit”. It may well be that if he had known that she was able to take action for relief from unfair dismissal – that she, was effectively through her “probation period” – his considerations would have been different in that he would have considered in greater detail the extent of any misconduct and if it warranted dismissal.

[95] While I am satisfied that the incidents of 27 July 2016 and 11 November 2016 occurred as I have found above, I am not satisfied they were of such a serious nature that they warranted termination of Ms Newchurch’s employment (although I do accept that TCAC had a right and a responsibility to raise issues with Ms Newchurch as to her conduct such that issues could be addressed). Given the lack of credible evidence as to other incidents outlined in the written statement of Ms Dodson and Mr Rosalski’s evidence that there were few incidents between these two incidents with Ms Newchurch I do not consider that the bases for Ms Newchurch’s dismissal are defensible or well-founded.

Sections 387 (b) & (c) - notified of the reason and given an opportunity to respond

[96] I have not set out in detail the evidence surrounding the decision to dismiss Ms Newchurch or how this was done because it is not contested. Suffice it to say Ms Newchurch was called to a meeting on 28 November 2016 with Mr McDonald, Mr Ellem and Ms Smith. Ms Newchurch was advised at this meeting that her employment was terminated.

[97] Mr McDonald made the decision to dismiss Ms Newchurch after consulting with the relevant managers. Ms Newchurch was told to gather her personal belongings and to attend the meeting on 28 November 2016 with no prior warning.

[98] I am satisfied that the decision to dismiss Ms Newchurch was taken before the meeting with her on 28 November 2016 when she was advised of this decision.

[99] Mr McDonald accepts that, because he thought he was dealing with a decision to dismiss during probation, he did not advise Ms Newchurch of the reasons for her dismissal prior to the decision being taken to dismiss her and that she was not given an opportunity to respond to that reason.

[100] I am satisfied in these circumstances that Ms Newchurch was denied procedural fairness. In particular, she was given no advice as to why her employment might be terminated or an opportunity to put her case as to why it should not be prior to that decision being made by Mr McDonald.

[101] I would observe however that the failure to afford Ms Newchurch procedural fairness – in particular to be warned clearly and unambiguously that her conduct had to improve or her employment might be terminated – cannot be excused because she was thought to still be in her probationary period. Procedural fairness is not something that comes with length of service. Any employee is entitled to know the standards against which they are being measured, how they might be failing to meet these standards and generally (except where a matter warrants summary dismissal) given an opportunity to improve to the level required prior to a decision being taken to terminate their employment.

[102] Clearly within the probationary period the time within which this occurs is limited, but it is no reason not to afford an employee a reasonable opportunity to improve or respond to concerns.

Section 387(d) - unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[103] No submissions were made directly on this matter although Ms Newchurch said she was not aware of the purpose of the meeting at which she was advised her employment was being terminated.

Section 387 (e) - unsatisfactory performance

[104] This criterion does not apply. Ms Newchurch’s employment was terminated because of misconduct.

Sections 387 (f) & (g) - the size of the employer’s business and absence of dedicated human resource management specialists or expertise

[105] TCAC has over 40 employees. It is large enough to warrant a HR Manager and a HR Officer. It is to be expected that such employees would have some expertise in dealing with matters associated with the management and termination of employment of employees.

[106] I do accept that Ms Smith was not long in the HR Manager’s role when the future of Ms Newchurch’s employment was considered and the decision taken to terminate her employment.

Section 387 (h) - any other matters other matters

[107] Whilst there were other matters raised by Ms Newchurch none of them are relevant to the matter I must decide.

Conclusion

[108] I have found above that there was no valid reason for the dismissal of Ms Newchurch. This should not be taken as there not having been legitimate grounds for concern as to Ms Newchurch’s conduct. As I have found, I do not consider Ms Newchurch to be blameless in the issues she had with her supervisors. She is a strong willed woman prepared to stand up for herself and what she considered the interests of the clients of TCAC. But this did not justify her conduct. However, as I said above while her conduct warranted some remedial action by her employer it did not provide, on balance, a valid reason for dismissal.

[109] For this reason I am satisfied that her dismissal was harsh.

[110] Even if Ms Newchurch’s conduct did provide a valid reason for dismissal, the lack of procedural fairness would be such that I would find her dismissal to be harsh. This lack of procedural fairness goes back to 16 August 2016 when Ms Newchurch met with Ms Dodson, Mr Rosalski, Mr Ellem and Ms Jordan. It is apparent that it was not clear to Ms Newchurch the purpose of the meeting or that there were adverse findings against her arising from the complaints she had raised. There is certainly no basis on which Ms Newchurch could understand that the meeting was a performance review meeting.

[111] Even if it was (or should have been) clear to Ms Newchurch the purpose of the meeting, the outcomes were not set out in writing such that there could be no confusion as to future expectations. It surprises me that this was not done.

[112] Ms Newchurch walked out of the meeting understanding that the relationship between herself and Ms Dodson had been “re-set”. From her evidence it is apparent that she took this to mean the slate had been wiped clean but this was not the understanding of others. The lack of any formal outcome of that meeting means that there is nothing to objectively measure Ms Newchurch’s future behaviour against. This means that when the next major incident occurred in November 2016 it was not clear to Ms Newchurch the possible consequences. A failure to articulate standards is to deny procedural fairness because the measuring stick is not known.

[113] This of course was then compounded by the accepted lack of due process in effecting the termination of Ms Newchurch’s employment. I do appreciate that TCAC thought it was effecting the dismissal of Ms Newchurch based on different criteria and I have taken this into account. I do not consider however that this offsets adequately the totality of the procedural issues surround Ms Newchurch’s employment.

[114] I am therefore satisfied that Ms Newchurch was unfairly dismissed.

Remedy

[115] Ms Newchurch does not seek reinstatement and I am satisfied, in the circumstances, that reinstatement would not be appropriate.

[116] Submissions were not put to me with respect to compensation. For this reason I will issue further direction for written submissions with respect to compensation. Those directions will require the provision of written submissions. The parties will be asked to indicate if they wish to be heard on compensation prior to a decision being made or if the matter can be dealt with on the papers.

COMMISSIONER

Appearances:

F. Newchurch on her own behalf.

A. Duc of counsel for Tangentyere Council Aboriginal Corporation

Hearing details:

2017.

Alice Springs:

July 31.

 1   Transcript, PN425.

 2   Transcript, PN604.

 3   Later evidence shows that this meeting actually occurred on 16 August 2016.

 4   Transcript, PN78-82.

 5   Transcript PN 243-244.

 6   Exhibit R3, attached incident report form.

 7   Transcript, PN374.

 8   See the final three pages of exhibit R6 for the notes of interviews with witnesses.

 9   Transcript PN632.

 10   Exhibit R7, paragraph 19.

 11   Exhibit R7, paragraph 34-36.

 12   Marked for identification as A3.

 13   Transcript, PN864.

 14   Exhibit A2.

 15   Transcript PN668.

 16   Transcript PN632.

 17   Exhibit A3.

 18   Transcript, PN408.

 19   Selvachandran v Peteron Plastics Pty Ltd, (1995) 62 IR 371 at p.373.

20 King v Freshmore (Vic) Pty Ltd, Print S4213 at [24].

 21   Exhibit R6.

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