| [2018] FWC 7303 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Regina Hussey
v
Townsville Aboriginal & Islander Health Service
(U2018/2943)
COMMISSIONER SPENCER |
BRISBANE, 18 DECEMBER 2018 |
Application for an unfair dismissal remedy – application dismissed.
[1] This Decision concerns an application by Ms Regina Hussey (the Applicant) for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (the Act) regarding the termination of her employment from the Townsville Aboriginal & Islander Health Service (the Respondent). The Respondent is a medium sized, not for profit, community controlled medical service based in Townsville. The Applicant was employed by the Respondent from 6 June 2015 on a part-time basis as an “Aboriginal Health Worker Grade 2”, (varied to full time on 30 June 2017), until her dismissal on 28 February 2018. Her employment was subject to a “maximum term contract” ending on 30 June 2018.
[2] In summary terms, the Respondent alleged that on 8 January 2018, the Applicant failed to attend work, and failed to notify the Respondent of her absence. Also on 8 January 2018, the Respondent alleged that a telephone conversation between the Applicant and the CEO of the Respondent, Ms Kath Anderson (referred to as Ms K Anderson in this decision), occurred to discuss the unauthorised absence. During that phone call the Respondent submitted that the Applicant was hostile to the CEO and abused and threatened her supervisor, Ms Lynette Anderson (Executive Manager – Outreach Services) (referred to as Ms L Anderson in this decision). It was alleged that the Applicant’s conduct during this telephone call was part of a course of conduct, whereby the Applicant had frequently used abusive language toward or regarding Ms L Anderson. Ms L Anderson is the Applicant’s sister, and supervisor.
[3] Again in summary terms, the Applicant’s case was that she had advised Ms L Anderson that she would not be attending work as a result of alleged conflict between the two. The Applicant conceded that she had spoken poorly of Ms L Anderson during a later phone call with Ms K Anderson, but denied having previously spoken inappropriately of Ms L Anderson.
[4] The application was made within the time required in s. 394(2) of the Act. It is not in dispute that the Applicant is a person protected from unfair dismissal as defined in s.382 of the Act. The Respondent has not asserted that it is a small business or that the dismissal was a case of genuine redundancy.
[5] On the material before the Commission, the Applicant was employed pursuant to a fixed term or outer limits contract, ending 30 June 2018. The contract was terminated prior to its expiration date, and no jurisdictional objection was raised.
[6] The Applicant was represented by Mr H Conroy of Crosby Brosnan Creen Lawyers and the Respondent was represented by Ms M Doyle of Nexus Law Group. The matter was heard at the Townsville District Court. Both parties were granted permission to be represented pursuant to s.596 of the Act, on the basis that there was some complexity to the facts and arguments.
[7] On the completion of the evidence, the parties sought access to the transcript to provide their final submissions in writing. Further Directions were set for the filing of this material.
[8] Whilst not all of the submissions and evidence are referred to in this decision, all of such has been considered.
[9] On 29 December 2017, Ms L Anderson sent the Applicant a text message that stated:
“I was told weeks ago you whinging about me that’s why I don’t stay at Heatley on Monday and Tuesday any more.” 1
[10] The Applicant stated that, as per this text, because of Ms L Anderson’s reluctance to attend the Heatley Clinic because of the Applicant’s presence, the Applicant “considered that it was appropriate for me not to attend” 2 the Heatley Clinic. Consequently, and on the same day, the Applicant sent Ms L Anderson an email, advising that she did not intend to present for work at the clinic on 8 January 2018, so that Ms L Anderson could attend the clinic. The email stated:
“So I have thought about what I’m going to do and that is as of the 8th of January 2018 will no longer be working at the Heatley clinic I would like to continue my Monday and Tuesday's at the Main clinic if this is something that you arrange with Vanessa or Kath Anderson but I’m more then willing to do this myself. I have made this decision based on your text say that you haven’t been in at the Heatley clinic because of me and you need too be at that clinic so me not working there is what I want. So please let me know if your going to arrange this or I do it myself. Sorry that I made you feel that you had too stay from your clinic.” 3 [sic]
[11] Ms L Anderson replied to the Applicant by email stating:
“Your request is something I need to arrange. I will speak with Vanessa to see if there is someone who I can swap you with and let you know, although the date of 8th January may be too soon to arrange as other workers will need to be consulted as well. If this is unable to be arranged and you still don’t want to work at Heatley, you may need to consider reducing your hours to accommodate your request.
…
I will discuss your request with Vanessa on my return to work on the 8th January and inform of the outcome. You have been very important to the success we have made with the new clinics and I am sad you feel this way, but understand you need to do what is right for yourself. Thank you for your support over the past 2 years, I appreciate everything you did and do as I’m sure the Garbutt team will.”
[12] Importantly, the Applicant stated that she believed from this response, that Ms L Anderson understood that the Applicant would not be attending the Heatley Clinic on 8 January 2018 4 and it was submitted that Ms L Anderson had not in her reply advised the Applicant that she was required to attend work on this day. Ms L Anderson did not report this exchange to Ms K Anderson (the CEO) at that time.5
[13] The Applicant did not attend at the Heatley Clinic on 8 January 2018. As a result, an exchange of messages occurred between the Applicant and Ms L Anderson on 8 January:
“[L Anderson] Are you coming to work today. I have no leave form lodged
[Applicant] No
[L Anderson] You should have informed me earlier. I didn’t know
[Applicant] Read your emails
[L Anderson] I have and there isn’t one from you. What date did you send
[Applicant] I told u I was no longer working at the heatley clinic as of today on 29-12-17
[L Anderson] you are still required to work until things have been discussed with other managers
[Applicant] MM … I’ll put in a form” 6
[14] The Applicant stated 7 that she was confused when Ms L Anderson queried her absence from the Heatley Clinic in the text exchange above, because of the Applicant’s belief that Ms L Anderson was aware she would not be attending that day and “provided no objection”8 to this absence.
[15] Later on 8 January 2018, the Applicant stated that she received a telephone call from Ms K Anderson. The Applicant stated that she informed Ms K Anderson that she “could not attend work due to personal reasons and that [the Applicant] could provide a medical certificate supporting [the] absence from work” 9. Ms K Anderson advised the Applicant that her employment with the Respondent was suspended with full pay. The Applicant conceded that during this phone call she made statements about Ms L Anderson that were “not appropriate” and that she regretted such.10
[16] Following the Applicant’s suspension the Applicant sent a text message to Ms L Anderson stating:
“don’t you dare come near me or talk to me again I’m done with you” 11
[17] The Applicant stated that this text message was sent to Ms L Anderson in her capacity as her sister and not as her supervisor. About an hour after sending this, the Applicant submitted that she apologised for her action by text. A copy of that text message was not in evidence before the Commission. The Applicant also apologised in an email to Ms K Anderson of 17 January 2018. 12
[18] The Applicant provided a medical certificate to the Commission, which was signed by Dr Christopher Diedrick of Garbutt and dated 9 January 2018. The medical certificate stated:
“Ms Regina Hussey… was seen and examined by me on 9/01/2018. In my opinion, Ms Hussey is medically unfit for work from 8/01/2018 and should be fit to return to work again on 17/01/2018.” 13
[19] It is relevant to include the exchange of correspondence leading to the termination. These documents indicate the reasons both parties relied on. On 23 January 2018, the Applicant received the following show cause letter from the Respondent:
“Dear Regina
We refer to the meeting which has just taken place between you, Kath Hughes, Executive Manager Human Resources and I. As discussed in the meeting, we have received further information about your conduct since last week and, as a result, serious allegations are being made against you.
The allegations are as follows:
1. On several occasions, you have made derogatory remarks about Lynette Anderson (Lynette) to other health workers;
2. On 29 December 2017 you wrote an email to Lynette stating:
So I have thought about what I'm going to do and that is as of the 8th of January 2018 will no longer be working at the Heatley clinic I would like to continue my Monday and Tuesday's at the Main clinic if this is something that you arrange with Vanessa or Kath Anderson but I’m more then willing to do this myself. I have made this decision based on your text say that you haven't been in at the Heatley clinic because of me and you need too be at that clinic so me not working there is what I want. So please let me know if your going to arrange this or I do it myself. Sorry that I made you feel that you had too stay from your clinic. [sic]
Lynette responded:
Your request is something I need to arrange. I will speak with Vanessa to see if there is someone who I can swap you with and let you know, although the date of the 8th January may be too soon to arrange as other workers will need to be consulted as well. If this is unable to be arranged and you still don’t want to work at Heatley, you may need to consider reducing your hours to accommodate your request.
My decision to work away from Heatley is beneficial to all and your position within the Heatley team is very important to them and TAIHS. Where I can reduce staff stress and improve working conditions, I will do what I can and in this case, that is what I was trying to do. Other things you raised with me yesterday are out of my control but I still try hard to work at them to improve working conditions.
I will discuss your request with Vanessa on my return to work on the 8th January and inform of the outcome. You have been very important to the success we have made with the new clinics and I am sad you feel this way, but understand you need to do what is right for yourself. Thank you for your support over the past 2 years, I appreciate everything you did and do as I’m sure the Garbutt team will
Regards
You further responded
Not a problem. And you coming to myself weeks ago and asking what I was whinging was a big mistake on your part for not doing so and you have health workers that can be used at Heatley. Just like when Brianna went too you and said that she could no longer travel due too uni she was given what she wanted so me wanting this I shouldn’t have to wait.
3. On Monday, 8 January 2018, you failed to attend Heatley Clinic and you failed to notify that workplace of your intended non-attendance prior to you being contacted by Lynette to ascertain your whereabouts;
4. On 8 January 2018, in an sms exchange with Lynette you stated:
“I told u I was no longer working at the heatley clinic as of today on 29-12-17
Lynette responded
“you are still required to work until things have been discussed with other managers
You responded:
“don’t you dare come near me or talk to me again I’m done with you
5. On 8 January 2018, in a telephone call with Kath Anderson you
a. were angry, aggressive and inappropriate with your language;
b. made threatening comments about Lyn Anderson to the effect of “this is not fucking over”, and “I will get that cunt”
6. On 8 January 2018, you lied to Kath Anderson about your absence from the Heatley Clinic by saying that you were taking personal leave; and
7. On 9 January 2018, you compounded the above lie to Ms Anderson by sending Ms Hughes a medical certificate purporting to be for 8 January 2018 but dated for 3 to 6 November 2015.
Your conduct clearly demonstrates that:
● your relationship with your manager has broken down and you have expressed the desire to no longer work with Lynette;
● you have failed to follow a reasonable and lawful direction from Lynette to attend work;
● you have been abusive about Lynette to co-workers;
● you have been abusive to Lynette; and
● you have made threatening comments about Lynette to the CEO.
These allegations
● constitute a serious breach of the TAIHS Employee Code of Conduct in that you have behaved in a threatening and abusive manner;
● show you have failed in your obligation to follow the reasonable directions of your manager and to operate in a civil manner in the workplace; and
● demonstrate willful [sic] conduct which is inconsistent with the continuation of your employment. An organisation cannot operate effectively if its employees refuse to work with their managers, do not turn up to work without notice or authorization and are abusive to and about their managers.
You are now required to provide to me your written responses by 5pm Monday, 29 January 2018. You can do so by e-mail, facsimile or letter.
In your response you should address any reasons or mitigating circumstances for your conduct on 29 December 2017 and 8 January 2018.
We take allegations of this kind very seriously. As a result of the seriousness of these matters, we may exercise our entitlement to end your employment, so you should explain why we should not terminate your employment if the allegations are substantiated.
You are then directed to meet with me on Tuesday, 30 January 2018 at l0am, at TAIHS, 12 Wickham St, Townsville.
As your continuing employment is at risk, you are entitled to have a support person present. If it is a Union Official or Solicitor, please let us know as we will have our Workplace Relations Lawyers also attend.
Please also note that if you fail to respond by the deadline or fail to attend the meeting, the matters will be dealt with in your absence and without further input from you.
Until the disciplinary process is completed, TAIHS has decided to continue your paid suspension. Suspension is a responsible action that protects all parties. Suspension will also enable you to take such advice as you consider appropriate. Staff will be told that you have taken “special leave” and we expect you to also state this, to preserve your confidentiality.
During the paid suspension period you are reminded not to:
(a) attend work or any of TAIHS’s premises;
(b) undertake any work for TAIHS unless instructed to do so by the writer;
(c) access TAIHS’s email, computer or web systems;
(d) contact or approach Directors or employees of TAIHS; or
(e) discuss these or other matters with anyone other than your legal / industrial representative and your immediate family.
If you breach these directions you may face further disciplinary action.
Finally, if you need access to TAIHS’s EAP, please call either On Bundock on [redacted] or Tracy Richards Psychological Services on [redacted]. If there are any matters arising from the above about which you are unsure, please contact Kath Hughes on [redacted].
Sincerely
Kath Anderson
Chief Executive Officer” 14
[20] On 6 February 2018, the Applicant’s legal representatives sent the following letter to the Respondent:
“Dear Madam,
Regina Hussey
Thank you for your email dated 2 February 2018.
Using the same numbering in your show cause letter to our client dated 23 January 2018, we are instructed to respond as follows:
1. It is denied that on several occasions, our client has made derogatory remarks about Lynette Anderson (Lynette) to other health workers.
Our client admits to making remarks regarding not being able to contact Lynette. This has been a source of frustration for our client not being able to clarify important things with Lynette. For instance, clarifying arrangements for the transporting of clients for specialist appointments from Charters Towers to Townsville. Our client is not able to perform the terms of her employment if her manager is not available from time to time. In addition to our client needing to contact her manager to perform her duties, our client believes that it is important for the goodwill of the organisation that she check some matters, such as the transporting of clients for specialist appointments, with her manager, rather than risk letting a client down.
In fact, our client has witnessed Lynette not taking calls from the Ingham office because she was annoyed by the number of calls received from the Ingham office.
2. The reason for our client's email to Lynette on 29 December 2017 was clearly stated in that email - it was a response to a text from Lynette (which we note you have not included in your show cause letter) saying that she hadn't been in at the Heatley clinic because of our client. That text, which was sent by Lynette to our client on 28 December 2017 stated:
“...I was told weeks ago you whingeing about me that’s why I don’t stay at Heatley on Monday and Tuesday any more”.
When our client received this text message she was saddened that Lynette did not come to her to discuss the matter, as opposed to informing her that she was to blame.
Our client’s response, which again you have not included in your show cause letter, was:
“I was whingeing like everyone because we are not getting anything good happening for us in Charters Towers oh well...”
For context purposes, our client was disappointed with the progress of TAIHS in Charters Towers, in that they were not there servicing clients every day. Our client was often asked why they were not there every day. Our client loved servicing the Charters Towers community.
Further, the parties are sisters.
The reason for our client's email to Lynette on 29 December 2017 is therefore understandable, and we suggest that Lynette's conduct it is not that of what is expected of a manager.
3. It is evident from the contents of your show cause letter that our client did not fail to notify the workplace of her intended non-attendance at the Heatley Clinic on 8 January 2018. The evidence is that our client notified her manager of her intended non-attendance in the email dated 29 December 2017. This was confirmed by our client in her SMS exchange with Lynette on 8 January 2018.
We note that at no time prior to 8 January 2018 did Lynette instruct our client that she was required to attend at the Heatley Clinic on 8 January 2018, despite the contents of our client’s email dated 29 December 2017.
4. The text “don’t you dare come near me or talk to me again I’m done with you” was sent by our client to Lynette by SMS in our client's capacity as Lynette's sister. Our client has always attempted to identify communications between her and her sister, Lynette, that are sent in her capacity as Lynette's sister by forwarding such communications by SMS, this being a more informal means of communication. When it has become necessary for our client to correspond with Lynette in a formal, employment related capacity our client has forwarded such communication by email, an example being the email dated 29 December 2017.
The fact that Lynette is our client’s sister and that there will always be communication between Lynette and our client in that capacity is clearly an issue that the employer must take into account.
The text was sent after our client's telephone call with Kath Anderson (‘Kath’) on 8 January 2018 during which discussion Kath advised our client that she was being suspended. The text was therefore sent at a time when our client was extremely upset as she felt that, Lynette being her sister, and her manager, Lynette should have spoken to our client directly. Further, our client felt that, in the circumstances and because of the conduct of Lynette, our client was being suspended because of Lynette’s actions.
Our client does however regret sending the text thus complicating the matter.
5. Our client apologised to Kath by text at 5.21 pm on 8 January 2018 which Kath, in a response by text at 4.40pm on 9 January 2018, acknowledged the “level of emotion”. We note that you have not included these important text messages in your correspondence.
For context purposes, our client was absolutely devastated that she had been suspended, which was without warning, and our client was at her most vulnerable.
The telephone call with Kath and the texts sent after the telephone call although unacceptable (hence the immediate apology), are, we submit, in the circumstances immaterial.
6. Our client denies lying to Kath when she advised Kath that the leave that she was taking was personal leave as, given the texts and emails leading up to and including the 8th, our client believes that, in the state of mind that she was in at the time, the taking of personal leave / sick leave on 8 January 2018 was reasonable in the circumstances.
7. This was merely a mistake on our client's behalf. Please find attached a copy of the Medical Certificate for the period 8 January 2018 to 17 January 2018 for your records.
In summary, the allegations against our client are, we submit, easily explained in the circumstances, particularly when reviewed in the context that Lynette and our client are sisters and that therefore the dealings between Lynette and our client, including personal text messages sent between them, are overlaid with the inherent issues that arise from that relationship. Given that relationship, we believe that the employer has a duty to carefully consider the communication between Lynette and our client and, where necessary, make appropriate allowances. It goes without saying that any communication between Lynette and our client that is in the context of their sibling relationship, must be ignored.
We look forward to discussing the issues further with you in the meeting which is scheduled for 10am tomorrow, 7 February 2018.
By all accounts, our client has gone above and beyond in her role and cares deeply about it and the clients. The possibility that she may lose the role also goes towards explaining most, if not all, of our client's conduct (in addition that is to the difficult issues that have risen through the sibling relationship that exists between our client and her manager).
Our client has been with TAIHS for in excess of 2 years and has never had any trouble with her sister until only recently in circumstances where, we suggest, our client’s sister, being our client’s manager, had a duty and an obligation to conduct herself in a more appropriate manner such that, we submit, both parties appear to share some fault, if there is any fault.
Our client’s partner, Allen Wharton also wishes to attend the meeting. Please confirm that you have no issue with this.
We are also instructed to request our client's timecards as previously requested by our client which we understand are yet to be received.
We await your response.
Yours faithfully
Crosby Brosnan Creen Lawyers” 15
[21] On 28 February 2018, the Applicant attended a meeting with the Respondent, accompanied by her legal representative, and her partner. During the meeting, the Respondent handed the Applicant the following termination letter:
“Dear Regina
We refer to your solicitor’s letter of 6 February 2018 and the meeting which has just taken place. Present at the meeting were you, Hadlee Conroy, Solicitor, CBC lawyers, Alan Wharton, support person, Kath Hughes, Executive Manager - Human Resources and I. As discussed in the meeting, we have considered your responses to the allegations of serious misconduct against you. Detailed below are our findings in relation to those allegations and our decision about the conclusion of the disciplinary process.
The findings in relation to the allegations are as follows:
1. You denied making derogatory remarks about Lynette Anderson (Lynette) to other health workers. We have interviewed other workers and are satisfied on the balance of evidence that this allegation has been substantiated.
Workers have advised they have regularly been subjected to negative and derogatory diatribes by you in relation to Lynette in the workplace and whilst travelling. They have stated
• That the subject matter in relation to Lynette is not always work related; and
• often your disclosures and comments were of a personal 'family' related nature.
• that they have asked you to stop speaking negatively about Lynette to them and in the workplace, and
• that they have suggested that you should take any issues directly to Lynette.
Workers have also confirmed that they have regularly witnessed abusive and derogatory outbursts by you when speaking to Lynette and that these outbursts have at times also been witnessed or heard by patients of our service.
2. You have admitted that on 29 December 2017 you wrote an email to Lynette stating that you refused to work at the Heatley clinic from 8 January 2018. That email presented an ultimatum to Lynette that she change your workplace to the Main Clinic or that you would request the change yourself.
You do not have the authority to decide to change your place of work.
This email is evidence of the breakdown in your relationship with your direct supervisor.
Your responses, and apologies, have not adequately excused your conduct. We conclude that your conduct demonstrates:
• The relationship with your manager has broken down and you have expressed the desire to no longer work with Lynette;
• you have failed to follow a reasonable and lawful direction from Lynette to attend work;
• you have been abusive about Lynette to co-workers;
• you have been abusive to Lynette; and
• you have made threatening comments about Lynette to the CEO.
These findings in relation to the allegations against you
• constitute a serious breach of the TAIHS Employee Code of Conduct in that you have behaved in a threatening and abusive manner;
• show you have failed in your obligation to follow the reasonable directions of your manager and to operate in a civil manner in the workplace; and
• demonstrate willful conduct which is inconsistent with the continuation of your employment. An organisation cannot operate effectively if its employees refuse to work with their managers, fail to attend work without notice or authorization and are abusive to and/or about their managers.
CONCLUSION OF SHOW CAUSE PROCESS
As a result of the above findings, we have decided to terminate your employment immediately. Your employment will end today. We are entitled, because of the seriousness of your misconduct, to terminate your employment without payment of notice.
However, we have considered your personal circumstances and decided to make a payment of 2 weeks wages in lieu of notice. This payment will be made on condition that you execute the Deed attached.
You will also be paid all accrued and unused employment entitlements.
Finally, if you need access to TAIH’s EAP, please call either On Bundock on [redacted] or Tracy Richards Psychological Services on [redacted]. You may have access to this employment entitlement for two weeks until14 March 2018.
If there are any matters arising from the above about which you are unsure, please contact Kath Hughes on [redacted].
Yours faithfully
Jennifer Savage
(Acting) Chief Executive Officer” 16
[22] The Applicant submitted that given she was summarily dismissed, the onus is on the Respondent to establish that the Applicant was guilty of serious misconduct which justified the summary termination occurring. In referring to the decision of Harley v Rosecrest Asset Pty Ltd t/a Can Do International, 17 the Applicant submitted:
“The relevant test to be applied under the Act is whether or not TAIHS can demonstrate there were reasonable grounds for their determination that the Applicant is guilty of misconduct.” 18
[23] The Applicant responded to the alleged failure to attend work on 8 January 2018 as follows:
“19. The Applicant concedes that there was a breakdown in the relationship between her and her sister. However, the Applicant denies that this impacted on their professional relationship to the extent that TAIHS was required to terminate the Applicant’s employment summarily.
…
21. The text message sent by the Applicant’s sister, Lynette to the Applicant on
29 December 2018 establishes that it was the Applicant’s sister who was unwilling to work at the Heatley Clinic with the Applicant.
…
24. On the Applicant’s evidence her supervisor was advised on 29 December
2017 that she was not willing to continue to work at the Heatley Clinic commencing 8 January 2018 in a response to the text message received by the Applicant that her direct supervisor had not attended at the Heatley Clinic for some time due to the Applicant’s presence.
25. The text message received by the Applicant on 8 January 2018 stated “you are still required to work until things have been discussed with other managers.”
26. At no time did the Applicant’s supervisor provide her with a direction to attend work on 8 January 2018.
27. Further, the Applicant was able to provide the doctors certificate, being Exhibit 5 of the Applicant’s affidavit dated 8 June 2018, as evidence that she was not able to attend work on Monday, 8 January 2018.” 19
[24] The Applicant did not deny that at various times she may have expressed her “frustrations” regarding Ms L Anderson; however she stated that the particulars of this allegation were not put to her and she was denied procedural fairness in relation to this allegation. Furthermore, in referring to the judgment of the Federal Court in Qantas Airways Ltd v Cornwall 20, the Applicant’s representative argued that “on the evidence of the Applicant and the Response filed by TAIHS that conduct which led to the termination of the Applicant was the result of a culmination of conflict between the parties which went unaddressed and was not managed by TAIHS.”21 The Applicant submitted that she was not given a timely opportunity to respond to these allegations.22
[25] The Applicant conceded that she used inappropriate language during her telephone conversation with Ms K Anderson on 8 January 2018; however, she submitted that she took steps to acknowledge and address this behaviour by sending a text message to Ms K Anderson approximately one hour after their discussion, apologising for her actions. The Applicant in her affidavit set out that due to damaging her previous phone, she was unable to provide a copy of this message. 23
[26] In her affidavit of 8 June 2018, the Applicant denied the allegation that she had made derogatory remarks about Ms L Anderson to other health workers. The Applicant however stated that on occasion she had made comments regarding Ms L Anderson’s alleged failure to answer her calls, however stated that these comments were in respect of Ms L Anderson’s capacity as the Applicant’s supervisor and were not personal in nature.
[27] The Respondent submitted that the Applicant’s conduct constituted “serious misconduct”, as defined under regulation 1.07 of the Fair Work Regulations 2009. In referring to the decision of Lambos v ACT Government as represented by the Territory and Municipal Services Directorate T/A ACTION (Australian Capital Territory Internal Omnibus Network), 24 the Respondent submitted that it had a “sound, defensible and well founded” reason to dismiss the Applicant based on the Applicant’s conduct towards Ms L Anderson and Ms K Anderson.
[28] The Respondent submitted that the Applicant’s conduct was “wilful or deliberate behaviour” that was inconsistent with the continuation of the contract of employment. The Respondent submitted that the instances of serious misconduct were as follows:
“i) on 8 January 2018, the Applicant abused and threatened Ms Anderson to the CEO and spoke in an angry and inappropriate manner to the CEO;
ii) The Applicant’s conduct on 8 January 2018 was not a one-off event but part of a course of conduct in which she frequently abused Ms Anderson and spoke in a derogatory fashion about her to other employees; and
iii) The Applicant failure to attend the workplace as required and failure to notify the workplace of her absence demonstrate the Applicant’s deliberate decision not to cooperate with Ms Anderson in the workplace.” 25
[29] The Respondent submitted that the Applicant conceded that her language used during the telephone call with Ms K Anderson was unacceptable. Ms K Anderson’s contemporaneous file note of that conversation states as follows:
“8 January 2018
Received a call from Regina Hussey at approximately 4:30pm.
I had called her about 10 minutes prior, and left a message- advising that I had emailed correspondence to her personal email regarding her absence from work yesterday.
Regina was very agitated, and speaking in a loud, angry voice- saying words to the effect of “what do you get a letter for having a sick day now”, “other staff have sick days all the time and they don’t get a letter”.
I asked Regina to please calm down, so that I could explain the letter -I said the letter was not in response to a sick day; I had been advised by her manager, Lyn Anderson, that Regina had emailed Lyn prior to Christmas and said she wasn’t returning to work at Heatley- she was going to transfer to another program- and Lyn had advised that it wasn’t her (Regina’s) decision. And that Regina hadn't called in sick- Lyn rang her to see if she was coming into work, and she advised that she wasn’t; Regina did not call in sick.
Regina was talking over e [sic] while I was trying to explain this, and yelling words to the effect of “yeah, well did she tell you why I didn’t want to fucking come in; did she fucking tell you why I don’t want to work with her”.
I said that if she had any concerns to raise about Lyn, she should put them in writing to me.
She continued to yell words to the effect of “this is not fucking over”, and “I will get that cunt” and similar comments.
Regina then hung up on me.
The conversation didn’t last long- approximately 2 minutes.” 26
[30] The Respondent submitted that the Applicant’s abuse of Ms L Anderson “took place in clinics where patients witnessed the behaviour. This conduct impacted on the Respondent’s reputation in the community.” 27
[31] The evidence was that the Applicant had been provided with a copy of the Respondent’s Code of Conduct (extracted below) and was aware of the standard of behaviour expected in the workplace. 28
[32] In respect of the Applicant’s alleged failure to attend work on 8 January 2018, the Respondent submitted that the Applicant:
“i) was contracted to work at the Heatley Clinic on Mondays and Tuesdays,
ii) did not have the authority to change her workplace herself,
iii) was obliged to comply with TAIHS procedures for applying for leave if absent.” 29
[33] The Respondent submitted that the Applicant failed to provide notice of her absence on 8 January 2018; and in relation to the Applicant’s reasons for failing to attend the clinic, the Respondent submitted that the Applicant’s reasons had been inconsistent throughout her evidence. At the hearing, the Applicant was cross-examined in relation to this issue, and the following exchange occurred:
“But you say that you told Lynette on 29 December that you weren't going to come to work? That's correct.
On the 8th? That’s correct.
You say you were going to put in a sick form for the 8th? I was going to see the doctor to get a stress leave form, due to the stress that was all piling up on me.
Look, I put it to you, Ms Hussey, that you absented yourself from the Heatley clinic on 8 January because you had no intention of working there on that day? I absented myself because I did not find it fair due to the manager excluding herself from the clinic because of one person. I did not find that fair due to other workers - - -
…
I put it to you that you had no intention of working there on that day? I gave notice. That was my notice of not being there. I made that clear in my email to Ms Anderson - - -
I put it to you, Ms Hussey, that you decided to take a sick day only after your sister said that you were required to work? No, I didn’t make that decision after that. That was a decision I was working on. I was making that decision because I was tired. It wasn't just due to that.
So you're saying you were sick on 8 January? I was home on 8 January, that's correct, because I put my notice to Lynette Anderson that I was not going to attend that clinic. That's correct.
If you were sick on 8 January, can you explain to me why you didn't ring or text first thing in the morning to say that you were not coming to work because you were sick? I didn't feel I have to, because I sent her an email on the Friday prior to that, on the 29th.
Well, actually the time sheet I just showed you, you worked a full week - - -? That's correct. The week prior to going - prior leaving, which states 3, 4 and 5 January.
That’s right? That’s right.
So on 29 December you knew you were going to - - -? And I also was told I had to - - -
- - - be fine on 3, 4 and 5 January, but you were going to be sick on the 8th? I gave notice. I was told you always have to give notice, because my notice of the two weeks - because I had been there two years, my notice for - two weeks' notice, but because I did not do the dating correct, that's why I was going to see the doctor, because of my stress; but my stress was all building up and I had been speaking to the doctor prior to all of this.
I'm sorry, are you saying that you gave notice that you were resigning on 8 January? Of no longer working at the Heatley clinic. That’s correct. Heatley clinic.
Okay. So you gave notice that you were no longer going to be working at the Heatley clinic on the 8th - - -? As of the 8th. That's correct.” 30
[34] In addition to the evidence of Ms L Anderson and Ms K Anderson, the Respondent filed statements of Ms Vanessa Priday, Executive Manager (Primary Health Services) of the Respondent, and Ms Megan Grant, Registered Nurse of the Respondent.
[35] Ms Priday in her statement set out that her experience working with the Applicant was very limited, save for a telephone conversation she had with the Applicant on 29 December 2017. Ms Priday’s file note of the conversation was as follows:
“This file note has been made as a record of a conversation between Regina Hussey and myself (Vanessa Priday) on 29th December 2017 at approximately 9am.
Received an email from front reception at 8.47am 29/12/17 to phone Regina Hussey (copy of email below- Addendum 1).
I phoned Regina directly as I thought she may have needed support in Lynette Anderson’s absence on leave.
Regina advised that she does not want to work in the same clinic or office as Lynette anymore as they’ve been having problems both at work and at home (as they are family).
Regina advised that she and Lynette had family issues over Christmas, that Lynette never returns her calls when she phone regarding work problems, that Lynette does not provide her with the resources she requires at the Charters Towers clinic, the Lynette speaks to her like shit, that she has busted her ass for Lynette over the years and that she can’t put up with being spoken to like a dog anymore.
Regina asked what she needs to do and who she needs to speak with to work in the main clinic on Monday's and Tuesday’s.
I advised Regina that I have respect for Lynette and for her role as Executive Manager of Outreach Services, I further advised that it was not in my best interests to get involved in family politics and that she should discuss the possibility for her to relocate to another area on Monday’s and Tuesday’s with Lynette so as not to muddy the waters on the professional or family front.
I advised that I didn’t feel comfortable having the conversation with her and that I know Lynette wouldn’t be happy if she knew Regina had called me.
I advised that I respect Regina for all of the work that she has done with regard to getting the outreach clinics operating so efficiently and that I'm aware that she has worked hard to support the establishment of the clinics and that I would do whatever I can to support her relocation but that she needed to sort this out with Lynette in the first instance as this is the most professional way to handle the situation.
Regina agreed to contact Lynette to discuss the situation, I iterated that this would be the best course of action and that she should ask Lynette to have the conversation with me or ask Lynette if she is comfortable for Regina to have the conversation with me regarding relocating on Monday’s and Tuesday’s to main clinic.
I assume that Regina has contacted Lynette, as at 12.24pm 29/12/20171 received an email from Lynette stating that she had a problem and that she will yarn with me when she returns from leave.
I phoned Kathy Anderson, CEO to advise that I'd received the call from Regina, I also stated that I had some concerns that she disclosed this information to me. I asked the CEO if I should document the call as I wasn't comfortable that Regina disclosed the information discussed, the CEO advised to just make a file note.” 31
[36] The Applicant in her affidavit in reply of 6 July 2018, stated that this conversation was in confidence and that she was merely seeking advice on the situation and that, in hindsight, she should not have discussed the matter with Ms Priday. 32
[37] Ms Grant in her statement also recounted a series of comments she alleged the Applicant made regarding Ms L Anderson. Ms Grant stated that these conversations made her feel uncomfortable, and would often contain excessive swearing, and related to family matters.
[38] Ms Grant stated that on one occasion the Applicant spoke to a patient about Ms L Anderson. Whilst Ms Grant was not a party to this conversation, she stated that after the patient had spoken to the Applicant, the patient said to Ms Grant words to the effect of, “Oh – there is trouble in the workplace there.” 33 Ms Grant stated that despite repeatedly asking the Applicant to refrain from speaking to her regarding Ms L Anderson, the Applicant continued to make derogatory remarks.
[39] In deciding whether a dismissal was unfair on the grounds that it was harsh, unjust or unreasonable, the Commission is required to consider the criteria in s.387 of the Act, as follows:
(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.”
[40] The employer bears the onus of establishing that there was a valid reason for a dismissal.34 A valid reason for dismissal is one that is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”35 The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts,36 and the validity is judged by reference to the Commission’s assessment of the factual circumstances of the conduct.37 The Commission is not limited to the reason given by the employer in considering whether there was a valid reason for the dismissal. 38 Misconduct justifying dismissal is conduct so serious that it goes to the heart of the employment relationship39 or evinces an intention that the employee no longer intends to be bound by the employment contract.40
[41] Where the reason for the dismissal is misconduct, the Commission must be objectively satisfied that the misconduct occurred. However, as Vice President Hatcher observed in Bista v Glad Group Pty Ltd 41, the case law does not establish that a minor failing on the part of an employee could constitute a valid reason for dismissal simply because it was proven to have occurred. Dismissal on such a basis could not be sound, defensible or well founded.42 His Honour also cited the majority judgement in Edwards v Giudice43 where it was held that:
“The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination. An employee may concede in arbitration that the conduct took place because, for example, it involved a trivial misdemeanour. In those circumstances the employee may elect to contest the termination in the arbitration on the basis that the conduct took place but it did not provide a valid reason and perhaps by relying on the other grounds in [the section].” 44
[42] That judgement was referenced by Hatcher VP as authority for the proposition that, under the present Act, the consideration of whether there is a valid reason for dismissal requires, where the relevant conduct upon which the dismissal is proceeded is found to have occurred, an assessment of whether the conduct was of sufficient gravity or seriousness such as to justify dismissal as a sound, defensible or well-founded response to the conduct.
[43] The matters in s.387 consider both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:
Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the conduct;
Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or
Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer.45
[44] Each of the statutory criteria in s.387 are considered in turn;
[45] The Respondent’s Code of Conduct relevantly provides as follows:
“1. Purpose
The Code of Conduct outlines the responsibilities, general standards of work, doncudt and behaviour expected of all Townsville Aboriginal and Torres Strait Islander Corporation for Health Services (TAIHS) employees.
The purpose of the Code of Conduct is to encourage the commitment, contribution and development of each employee in striving to achieve best practice and an exceptional quality of service to TAIHS clients.
…
5.0 Code of Conduct
…
5.2 Responsibilities
Each employee has a responsibility for maintaining TAIHS’s reputation by observing the principles of the Code of Conduct.
…
5.2.2 The Role of Employees
In return, TAIHS employees are expected to:
• Behave honestly and with integrity;
• Act with care and diligence;
• Treat everyone with respect and courtesy, and without harassment;
• Comply with all applicable Australian laws;
• Disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent);
• Use resources in a proper manner;
• Not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee’s employment;
• Not make improper use of:
• Inside information, or
• The employee’s duties, status, power or authority, in order to gain, or seek to gain, a benefit or advantage for the employee or for any other person;
• Behave in a way that upholds TAIHS’s Mission and Vision and the integrity and good reputation of TAIHS.
Where an employee believes that a direction given is unlawful, improper, or unsafe they should raise the issue in accordance with the Grievance Dispute Procedure.
5.3 Workplace Expectations / Conduct
• TAIHS expects are [sic] that you work within the scope of; and abide by all companies policies and procedures and seek support and consultation with the appropriate people within the organisation.
• TAIHS expects that you will devote your time in the workplace undertaking the role and responsibilities for which you are remunerated.
• All employees of TAIHS are expected to demonstrate collegiate respect.
• Disparaging, derogatory or defamatory statements in relation to TAIHS, the Board of Directors, management and your colleagues are considered a breach of the code of conduct.
• Failure to comply with all lawful and reasonable directions given by someone who has authority to give the direction is considered a breach of the code of conduct.
…
5.11 Dealing with Aggressive Behaviour
Employees are expected to provide high standards of service provision but the organisation does not accept any form of aggressive, threatening or abusive behaviour towards its employees by clients, visitors, Board of Directors or community members.
If an employee is unable to calm the person and/or believes the situation places them or other employees in danger, they are to notify their Program Manager or the CEO (or delegated officer).
Aggressive and violent behaviour by TAIHS employees are considered serious breaches of the code of conduct and will lead to disciplinary action and may result in summary dismissal.
…
5.13 Breaches of the Code of Conduct
Breaches of this Code may be grounds for using Disciplinary Procedures, as outlined in the TAIHS Disciplinary Process and can lead to dismissal.”
(Emphasis added)
[46] As stated above, it is the Respondent that bears the onus of establishing a valid reason for dismissal. The Respondent’s case is that the conduct was based on three instances, which provided valid reasons for dismissal: the Applicant’s unauthorised absence of 8 January 2018; the Applicant’s conduct in the phone call of 8 January 2018 to the CEO; and a course of disrespectful conduct prior to 8 January 2018 engaged in by the Applicant in respect of Ms L Anderson.
[47] Regarding the Applicant’s conduct, the Respondent submitted that the Commission should have regard to Senior Deputy President Hamberger’s decision in Sayers v CUB Pty Ltd, 46 which states that an employer is “entitled to set standards and having outlined them to its employees, insist upon adherence”, and further that “sustained foul mouthed tirades have no place in the workplace”.47
[48] The Applicant made a conscious and deliberate decision not to attend work on 8 January 2018. The Applicant’s own evidence is that she considered it was appropriate for her to not attend the Heatley Clinic because of Ms L Anderson’s text message of 29 December 2017. 48 The Applicant’s evidence is that it was her belief that Ms L Anderson had understood that she would not be attending at work on this day. This belief was based, she contended, on Ms L Anderson’s response. The Applicant’s interpretation was convenient, misplaced, and knowingly wrong to leave the clinic unable to properly operate.
[49] The Applicant agreed she was contracted to work five days a week, and was required to work Mondays and Tuesdays at the Heatley Clinic. The Applicant held an integral role in ensuring the community health clinic was operative for the patients. At the hearing, the Applicant stated that she “resigned” from working at the Heatley Clinic, 49 however agreed that she did not have the ability to unilaterally vary her contract.50 In addition she was clearly advised this amendment to her work locations required discussion and consultation.
[50] Accordingly, I am satisfied, based on the evidence, that the Applicant absented herself from the Respondent’s workplace without authorisation, and had removed herself from the clinic for that day, and sought to impose a permanent change to her working arrangement.
[51] The Applicant’s absence of 8 January 2018, unauthorised as it was, taken on its own was not a valid reason for dismissal and the Respondent agreed with this. However, the dismissal of the Applicant from her employment did not occur on the basis of a single day’s absence (in the context of the text message from Ms L Anderson). Indeed this was recognised by Ms K Anderson (the CEO of the Respondent), who stated in cross-examination:
“Mr Conroy: Because one of the things the Commission look at is there’s a range of disciplinary responses often available to an employer and whether the employer has considered that range of disciplinary responses apart from dismissal. What do you say?
Ms K Anderson: Yes, absolutely. Absolutely. The initial - the initial letter you’re not at work is really in the scheme of things not that big a deal. I mean it was the subsequent responses that indicated that - you know, to be brutal that we could be just transferring another really big problem to someone else. It was the responses that triggered more concerns rather than the initial can you say why you weren't at work. Like that’s just a fairly normal thing. If someone doesn’t come to work and there’s no approved leave form can you respond to that, but it just blew up and it was the responses to that that sort of - yes, something very different could have happened if it was a different, if a different process occurred, but during that process there was some - I had some really serious concerns about whether I wanted to transfer that problem to another program area.” 51
[52] Ms K Anderson gave evidence about the breach of the Code of Conduct by the Applicant, and her concern that the Applicant remained intent on pursuing Ms L Anderson in the workplace. These factors were taken into account by the Respondent, in concluding that there was a valid reason, based on the overall conduct, and that the relationship could not be restored. In re-examination, Ms K Anderson stated as follows:
“In the phone conversation with Regina on 8 January can you confirm that Regina said, "This is not fucking over, I'm going to get that cunt"?---Yes, that's correct.
How do you respond to that as a CEO in an organisation?---Regina hung up on me. I mean I didn't respond to it there, but that's the level of emotion that we needed to keep Regina out of the workplace while we investigated. That's why Regina was suspended after that phone conversation.
In Regina's responses did you ever get the impression that she was prepared to work with Lynette?---No, Regina's responses were very angry still. Even when Regina started the email by saying "I'm sorry for this" she still said Lyn shouldn't have done this and Lyn shouldn't - like there was - and I can't get her and I'm - it was just - the responses were really inappropriate, and when we met to try and talk through that Regina wouldn't back - you know, wouldn't recognise that that wasn't a position from which we could work. It was a really strong and very hostile position to take and it was really difficult to work with that.
And they're the responses you're talking about in terms of decision-making?---Yes.” 52
[53] The Employer noted that after the Applicant stated to Ms Anderson that she no longer wanted to work at the Heatley Clinic, as of that day Ms K Andreson told her that she was required to discuss the changes with other managers. The Applicant responded that she would simply put in a form, and this gave an indication that she was not intending to be compliant or accept the workplace relationship, or the requirements of her role.
[54] In terms of the Applicant’s responses to the show cause process, the Applicant agreed that during the telephone conversation with Ms K Anderson on 8 January 2018, the Applicant said words to the effect of “this is not fucking over” and “I will get that cunt.” 53 Whilst the Applicant stated that she subsequently apologised for this conduct, this cannot be ignored and gives an indication of the ongoing animosity of the Applicant towards her supervisor.
[55] The Applicant did not use abusive language to Ms L Anderson directly, rather to Ms K Anderson in respect of Ms L Anderson. Ms K Anderson was however the CEO and the language provided evidence of the hostility the Applicant had toward her supervisor in the workplace. The Applicant’s hostility towards Ms L Anderson was still significantly obvious in her evidence at hearing.
[56] In respect of the Applicant’s alleged pattern of conduct surrounding Ms L Anderson, some of the specific comments were not put to the Applicant until the present proceedings. The Applicant did not deny that she had expressed her frustrations regarding Ms L Anderson to other staff members, and in particular Ms Priday and Ms Grant. 54 The Applicant agreed that she made such comments as “she doesn’t give me the resources I need at Charters Towers clinic,” “she speaks to me like shit,” and, “I’m sick of Lynette not returning my calls,”55 however denied that she said Ms L Anderson was incompetent or that she would be unable to do her job without the Applicant. However, this view of Ms L Anderson’s supervision and competence was consistent with the exchange the Applicant had with her, and the lack of respect in not attending and imposing the changes of her workplace.
[57] Whilst the Applicant did concede she expressed concerns regarding Ms L Anderson to other staff members the Applicant maintained her denial in response of others. In any event, the comments which the Applicant agreed she made contributed to a breakdown of the employment relationship such that it became irretrievable. These comments were consistent with the contemporaneous file note of Ms Priday’s conversation with the Applicant (as previously referred to). 56
[58] Further, regarding the consideration of the relationship not being retrievable, Ms L Anderson stated at hearing:
“Why do you say that?---Because of the - I think that Regina had decided, she didn't want to be there and she was making that very clear, and from her colleagues everybody felt very uncomfortable with it, with her, and every time, you know, she'd say something it was always derogatory, so I don't think anything was going to change the situation.” 57
[59] The Applicant was unpersuasive in providing her evidence; 58 whilst she denied some comments she conceded making a range of comments (as set out previously) about Ms L Anderson. I am satisfied that the Applicant did express frustration regarding Ms L Anderson at the workplace to other employees. The Applicant’s comments about Ms L Anderson were critical of her work and role. The Applicant’s comments on 8 January 2018 were insubordinate and unnecessary, and were disruptive to continuing workplace relations, particularly providing added tension at the workplace, given these employees were sisters. The Applicant’s attitude to her sister and the work relationship had not altered at hearing.
[60] The Employer had conducted an investigation, to assess whether Ms Anderson’s conduct towards the Applicant had provided her with mitigating circumstances. The Employer found no evidence that the supervisor’s conduct had contributed to the events. This view is supported on the evidence.
[61] The findings of the investigation were:
• “There was no evidence that the Applicant was working excessive hours as a result of travel to Charters Towers - the Applicant was entitled to count travel time as work hours and use flexitime to maintain 38 hours per week. In addition, the Applicant drove to Charters Towers in a company vehicle with other employees. The Applicant did not assert that she was obliged to drive the vehicle on every occasion, and, in fact, she was not compelled to do so.
• The Applicant was frequently absent from work and utilised only 60% of work time (excluding approved paid leave); 59
• The Applicant was verbally abusive to Ms Anderson in the workplace;
• The Applicant ignored line management protocols and frequently made loud and abusive phone calls to Ms Anderson about matters she should have referred to the RN in charge at the various clinics she worked;
• The Applicant made derogatory remarks about Ms Anderson to other employees and in the presence of patients;
• It was reasonable in the circumstances for Ms Anderson to choose not to work at the Heatley Clinic when the Applicant was working there. As an Executive Manager, Ms Anderson could choose to work from a number of the Company’s sites whenever she wished.
• The Applicant ignored line management protocols by telephoning Ms Priday on 29 December about a transfer to the Main Clinic at Garbutt rather than speaking to Ms Anderson about the matter” 60
[62] The CEO had endeavoured to see if she could salvage the employment, but she stated:
“There - there could have been a solution in terms of the reporting lines, but Regina was so volatile and upset that she couldn't be in a workplace that was under Lyn's direction, like for that period of time it just wouldn't have been good, it was very volatile communication. It just did not seem like a good idea” 61
[63] The Employer concluded that the termination of the Applicant’s employment was appropriate in all of the circumstances, as below:
“i) The Applicant’s conduct towards her (the CEO) and her responses during the disciplinary process were the primary reasons for dismissal. She states
Yes, absolutely. Absolutely. The initial - the initial letter you're not at work is really in the scheme of things not that big a deal. I mean it was the subsequent responses that indicated that - you know, to be brutal that we could be just transferring another really big problem to someone else. It was the responses that triggered more concerns rather than the initial can you say why you weren't at work. Like that's just a fairly normal thing. If someone doesn't come to work and there's no approved leave form can you respond to that, but it just blew up and it was the responses to that that sort of - yes, something very different could have happened if it was a different, if a different process occurred, but during that process there was some - I had some really serious concerns about whether I wanted to transfer that problem to another program area. 62
and
but she still had a level of anger that suggested there wasn't any awareness of reporting lines and what's appropriate protocol. She expected Lyn to do what she wanted Lyn to do, and so if the staff can't acknowledge that that's not an appropriate way then I would just be transferring a problem to ultimately another health manager because it would have to be another health service - you know, another health program. So it really - the level of concern at the end of the day wouldn't have become such a big issue without the responses. 63
and
my decision was based on the fact that Regina's responses to - were really inappropriate and suggested that she had a really inappropriate view of procedures and appropriate workplace behaviour, and that didn't - didn't see that there was anything wrong with that. 64
ii) The letter of concern and the Applicant’s absence from work were not a great concern initially. It was standard process to ask an employee to explain why they are absent from work without providing notice or applying for authorized leave. It would certainly not have lead to a suspension or termination of employment by itself.
iii) The Applicant’s conduct towards the CEO on 8 January 2018 was serious breach of the Respondent’s Code of Conduct and serious misconduct. The Applicant failed to accept the gravity of her conduct and dismissed it as “in the circumstances immaterial” 65
iv) The Applicant continued to show animosity towards Ms Anderson and assert that “Lynette’s conduct is not that of what is expected of a manager”; 66
v) The Respondent has many family members working together. The Respondent therefore has effective protocols to deal with conflicts of interest on the basis that family are working together. The CEO considered that the Applicant was aware of the protocols and knew that she should report directly to the three RN at the outreach clinics where she worked. The Applicant chose to ignore these protocols. The Applicant was bullying Ms Anderson and trying to take advantage of her familial connection. The CEO states:
I think the fact that Regina and Lyn are sisters has definitely made this really personal, but I don't think that that's the reason that we're here today. I mean I really don't. I think that regardless, and we have a lot of conflicts in interest, just in the nature of the organisation that we are, and people still have to act according to certain professional boundaries regardless of relationships. We work in a sector where conflicts of interest are things that we have to manage all the time. 67
and
but in terms of professional behaviour like I felt that the pressure was on Lyn, and not from what Lyn was saying, but from how Regina was responding. Regina was saying, "Lyn should have done this. I couldn't reach her, I was annoyed", just like that level of - Lyn's still in a certain role and I felt that Regina was undermining her role preventing her from doing her job. So while that was definitely driven by personal things when people come to the workplace that is part of our policy. Everyone has to declare any conflicts and we have to put things in place to manage it. . - there was a level of bullying and harassment of Lyn in her role in terms of the level of demand that Regina was putting on Lyn, which is not - which is not appropriate in the workplace. 68
vi) The Applicant’s responses showed an unacceptable attitude towards Ms Anderson as an Executive Manager including:
(1) The Applicant considered it was acceptable for her to “tell” Ms Anderson (not request) that she was transferring her duties to the Main clinic; 69
(2) The Applicant was “angered” that Ms Anderson had reported her absence from work; 70
(3) The Applicant “was quite annoyed” because she was “trying to contact her (Ms Anderson) in regards to work stuff and could not reach her” 71
(4) The Applicant stated “I feel listening too (sic) her gossiping staff (instead of) she should have come to me”;
(5) The Applicant had unrealistic expectations about how accessible the Executive Manager should be to her as a staff member who did not report directly to her: “management are contactable at all times as staff members are always driving on the highways if they can’t be emails should be sent letting staff know that they can’t be reached until meetings are over” 72.”
[64] The conduct of the Applicant in failing to attend work on 8 January 2018, using abusive and threatening language regarding Ms L Anderson during the telephone call with Ms K Anderson, and directly to the CEO, and expressing her frustrations regarding Ms L Anderson to other staff at various times, constitute breaches of the Code of Conduct.
[65] In addition, I am satisfied that the Applicant did engage in the conduct alleged during the phone call of 8 January 2018. When considered in context and in combination with her absenting herself, stating her place of work was to be changed without consultation, and criticising her supervisor, I am satisfied that the collective (as set out) conduct formed a valid reason for dismissal.
[66] The Applicant was notified in writing of the allegations in the letter of 23 January 2018. The allegations (apart from some comments that were attributed to her) were known to her. They were also set out in the termination letter of 28 February 2018.
[67] The Applicant submitted that she was not given an opportunity to adequately respond to the allegations that she had engaged in a pattern of making abusive and derogatory comments towards Ms L Anderson, or about her work, as the Respondent had not previously particularised these allegations and put them to her.
[68] This is a procedural flaw, which has meant that the Applicant did not have an adequate opportunity to respond, prior to the escalation of the matter to the show cause. The Applicant however conceded a number of the comments, and confirmed this in her discussion with the CEO, and reinforced them by her continuing her volatile responses to the work relationship with her sister.
[69] There was no suggestion that the Respondent did not permit the Applicant to have a support person present, and the evidence was the Applicant was accompanied by her partner and her legal representative during the meetings related to the dismissal.
[70] The Applicant submitted that she was not explicitly given the opportunity to have a support person present during the telephone call on 8 January 2018. The evidence of the Respondent was that the purpose of this conversation was not to engage in discussions regarding dismissal, but merely at that time, to enquire as to the Applicant’s absence from work that day. The Applicant’s response was abusive about Ms L Anderson, the Applicant was then subsequently suspended. The matter to which s.387(d) directs the Commission’s attention is any unreasonable refusal to allow a support person. There is no evidence of a refusal to afford the Applicant a support person.
[71] The evidence was that the dismissal was not based on unsatisfactory performance. The Applicant’s performance in the Heatley clinic, in terms of patient care, was considered to be of a high standard.
[72] The Respondent is a large community controlled organisation with dedicated human resource expertise, and accordingly the dismissal process has been examined on this basis. The matter included the assessment of breaches of the Code of Conduct and family relationships at work; the consideration of alternatives to termination, or to the Applicant working with her sister, were appropriately examined.
[73] As discussed above, the Applicant’s failure to attend work on 8 January 2018 was considered in connection with Ms L Anderson’s correspondence to the Applicant, advising that she had not attended the Heatley Clinic whilst the Applicant was working there. The Applicant subsequently unilaterally decided not to attend the workplace on 8 January 2018, and advised Ms L Anderson accordingly. In absenting herself, she caused disruption to the health service. The Applicant was aware of this.
[74] The Applicant’s non-attendance was a disrespectful way to deal with the grievance, and demonstrated her anger towards Ms L Anderson. The Applicant had alternative ways to deal with her grievances, than to criticise the supervisor, absent herself, and demand a change in her contract.
[75] The conduct of the Applicant was not to the appropriate required standard for the workplace. As stated, the Applicant was employed under a fixed term contract with a maximum term date of 30 June 2018. 73
[76] In this matter, the family relationship between the Applicant and Ms L Anderson was taken into account in a measured way, and alternatives to dismissal were considered. However, the conclusion was that the Applicant, given the conduct and her ongoing attitude and belligerence (which remained obvious at hearing), was not able to be confidently relied on in returning to the operations. 74
CONCLUSION
[77] All of the submissions have been taken into account; and on the evidence before the Commission, the reasons and the consideration of the conduct provided a valid reason for the dismissal. I am not satisfied, balancing those matters in s.387 of the Act, that the dismissal was harsh, unjust or unreasonable.
[78] The s.394 application is dismissed. I Order accordingly.
COMMISSIONER
Appearances:
Mr H Conroy of Crosby Brosnan Creen Lawyers for the Applicant.
Ms M Doyle of Nexus Law Group for the Respondent.
Printed by authority of the Commonwealth Government Printer
<PR702745>
1 Affidavit of Regina Ruth Hussey affirmed 8 June 2018 at para 26.
2 Exhibit 3 at 29.
3 Ibid at para 31.
4 Ibid at para 33.
5 Transcript at PN997.
6 Exhibit 18 at para 54.
7 Exhibit 3 at 37.
8 Exhibit 3 at 36.
9 Ibid at 43.
10 Ibid at 44.
11 Ibid at 46.
12 Ibid at RRH6.
13 Affidavit of Regina Ruth Hussey affirmed 8 June 2018 at RRH5.
14 Affidavit of Regina Ruth Hussey affirmed 8 June 2018 at RRH3.
15 Exhibit 15.
16 Affidavit of Regina Ruth Hussey affirmed 8 June 2018 at RRH4.
18 Applicant’s Submissions dated 8 June 2018 at para 16.
19 Ibid at paras 19, 21, 24 – 27.
20 [1998] FCA 865.
21 Applicant’s Submissions dated 8 June 2018 at para 33.
22 Applicant’s Final Submissions dated 30 July 2018 at para 14(e).
23 Affidavit of Regina Ruth Hussey affirmed 8 June 2018 at para 47.
25 Respondent’s Outline of Submissions – Merits dated 22 June 2018 at para 9.
26 Statement of Kathy Anderson dated 20 June 2018 at Attachment F.
27 Respondent’s Outline of Submissions – Merits dated 22 June 2018 at para 6(d).
28 Exhibit 7.
29 Ibid at para 6(e).
30 PN313 – PN327.
31 Statement of Vanessa Priday dated 7 June 2018 at Annexure VPA.
32 Affidavit in reply of Regina Ruth Hussey affirmed 6 July 2018 at para 20.
33 Statement of Megan Granted undated at para 17.
34 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at 204.
35 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
36 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.
37 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.
38 Heran Building Group Pty Ltd v Anneveldt [2013] FWCFB 4744 at [15] per Acton, SDP, Sams DP and Hampton C citing MM Cables (a Division of Metal Manufacturers Ltd v Zammit AIRC (FB) S8106 17 July 2000.
39 Culpeper v Intercontinental Ship Management (2004) 134 IR 243; [2004] AIRC 261; Print RP 944547.
40 North v Television Corporation Ltd (1976) 11 ALR 599.
42 Ibid at [37].
43 (1999) 94 FCR 561.
44 Ibid at 572.
45 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.
47 Ibid at [126], [89].
48 Exhibit 3 at 29.
49 PN447.
50 Ibid at PN898.
51 PN1100.
52 PN1155 – PN1158.
53 Ibid at PN437 – PN439.
54 PN474.
55 PN462 – PN480.
56 Statement of Vanessa Priday dated 7 June 2018 at Annexure VPA.
57 PN1039; See also PN680-PN695, PN704-713.
58 PN462.
59 Statement of Kath Anderson at Annexure I.
60 Respondent’s Final Submissions dated 30 July 2018.
61 PN 1097; Respondent’s Final Submissions dated 30 July 2018.
62 PN1100.
63 PN1104.
64 PN1142.
65 Exhibit 15.
66 Ibid.
67 PN1144.
68 PN1145.
69 Exhibit 11.
70 Ibid.
71 Ibid.
72 Ibid; Respondent’s Final Submissions dated 30 July 2018.
73 Exhibit 5.
74 PN1144-1145.