DECISION

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

Rachel Titley
v
Schools Ministry Group
(U2019/2605)

Application for an unfair dismissal remedy – pastoral care worker – failure to secure required qualification – inherent requirements of job – whether personal factors mitigated breaches – valid reason – procedural fairness – whether fair go all round – relevance of post dismissal conduct – dismissal not harsh, unjust or unreasonable – application dismissed

[1] On 8 March 2019 Ms Rachel Titley (Ms Titley or the Applicant) applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to her dismissal by the Schools Ministry Group Incorporated (SMG, the Respondent or the employer). She claims to have been unfairly dismissed on 15 February 2019.

[2] At the date of dismissal Ms Titley was employed by SMG as a casual Pastoral Care Worker in a placement at the Murray Bridge South Primary School in regional South Australia. Pastoral Care Workers were formerly known as school chaplains.

[3] Ms Titley claims that her dismissal was harsh, unjust or unreasonable. Her application seeks an order for reinstatement or compensation. In her closing submission at the hearing of the matter she no longer pursued an order for reinstatement but actively pursued an order for compensation.

[4] SMG oppose the application. It says that it terminated Ms Titley’s employment on the ground that she had failed to secure necessary qualifications to enable her to continue in the role of a Pastoral Care Worker. It says that notwithstanding Ms Titley being a casual employee, the employer elected to pay her two weeks’ pay upon termination. SMG contend that the dismissal was not harsh, unjust or unreasonable, and that no issue of remedy arises.

[5] No jurisdictional issues arise in determining this matter. Ms Titley was a person protected from unfair dismissal within the meaning of section 382 of the FW Act. She served the statutorily required minimum employment period (section 382(2)(a)). Though she was a casual employee, her service was on a “regular and systematic” basis within the meaning of section 384(2)(a) of the FW Act. Her annual rate of earnings did not exceed the high-income threshold (section 382(2)(b)(iii)). Her employer was a “national system employer” within the meaning of section 14 of the FW Act. Her application was filed within the statutorily required 21 days after dismissal took effect.

[6] On 9 April 2019 conciliation of the application was conducted by a Commission-appointed conciliator. It did not settle. It was referred to Commissioner Platt for hearing and determination. Directions were issued on 13 and 27 May 2019.

[7] On 21 June 2019 on the application of Ms Titley, the Commissioner recused himself. Hearing dates of 24, 25 and 26 June 2019 were vacated. The matter was re-allocated to me. I set the matter down for hearing and determination on 19, 20 and 21 August 2019 in Adelaide.

[8] On 14 August 2019 Ms Titley applied for orders that four persons be summonsed to attend the Commission and give evidence. On 15 August 2019 I issued an order that an employee of the Department for Education (South Australia) and former school principal Mr Stuart Kitto appear to give evidence. Without the need for an order, two other persons, Reverend David Lovell and Mr Gerhard Korziba, agreed to give evidence. For reasons outlined on 15 August 2019 I declined to order that a fourth person, Ms Pamela Morley, be summonsed to give evidence.

[9] Both parties were self-represented at the hearing. Neither sought external representation during the life of the matter. Ms Titley presented the case in her own right. The Chief Executive of SMG, Mr Michael Chant, represented the employer, together with its General Manager of People and Culture, Mr George Benzier.

[10] At the hearing I took into account that the parties were self-represented. I provided a measure of guidance and assistance consistent with my responsibilities as an independent officer of the Commission.

The Evidence

[11] I received oral evidence and a substantial volume of written material (including that produced in consequence of directions) from both Ms Titley and SMG.

[12] I heard evidence from seven persons:

•  Rachel Titley (Applicant);

•  Peter Skurray (SMG Chaplaincy Services Manager and former Acting Chief Executive);

•  Paul Hodgson (SMG Regional Manager);

•  Helen Bates (SMG Human Resources Manager);

•  Stuart Kitto (former Principal, Murray Bridge South Primary School);

•  Reverend Darren Lovell (Pastor, Uniting Church Murray Bridge); and

•  Gerhard Korziba (Secretary, SMG Murraylands Community Taskforce).

[13] An eighth witness, Dr Nina Corlett-McDonald, was scheduled to give evidence at the request of the employer. However, during proceedings Dr Corlett-McDonald advised the employer that she had fallen ill and would be unavailable for a lengthy period (up to two months). The employer considered it would be unfair to Ms Titley to seek a delay in proceedings of this length, and Ms Titley also held that view. By agreement between SMG and Ms Titley, Dr Corlett-McDonald’s written statement (with attachments) was admitted into evidence given that both SMG and Ms Titley sought to rely on it, or aspects of it. I agreed to this course, noting however that the level of weight I afford an unsworn and untested statement will be a matter of discretion. During the course of proceedings I was able to ascertain from the parties that certain portions of Dr Corlett-McDonald’s statement were agreed or non-contested facts.

[14] Dr Corlett-McDonald was Director of Training Design and Development at the educational institution (Tabor) where Ms Titley was seeking to gain formal qualifications to work as a Pastoral Care Worker. Conversations between Dr Corlett-McDonald and Ms Titley on 18 January 2019 and with the employer on 15 February 2019 are directly relevant to the merit of this application. Certain matters that arose in evidence are not mentioned in her witness statement and, in her absence, I have only heard one side’s version of those matters. Similarly her post dismissal conversations with Ms Titley on 19 February, 2 March and 9 May 2019 are also relevant, at least on Ms Titley’s case. I will make findings of fact adopting a cautious approach in dealing with those aspects of Dr Corlett-McDonald’s statement that are not agreed facts or not corroborated by credible oral or documentary evidence from witnesses who appeared before me.

[15] Ms Titley gave evidence in a conversational manner. Whilst largely creditworthy, some degree of caution is required. Long pauses in answering difficult questions and some very lengthy answers gave the impression that some of her evidence was a reconstruction rather than simply recall. She tended to place gloss on events, and in particular understated conduct or timeframes that were detrimental to her case.

[16] Mr Kitto was an impressive witness. His recall was sound. He made concessions and acknowledgements irrespective of whose case may be supported by his evidence. On factual matters, he was a witness of credit.

[17] Ms Bates gave evidence confidently but was defensive and a touch quarrelsome on matters that were not of assistance to the employer’s case. Some conflicts exist between her evidence and that of Mr Skurray. A degree of caution is required as to whether her recall on those matters was sound.

[18] Mr Skurray’s evidence was clearly expressed but some degree of caution is also required. Even allowing for the unfamiliar surrounds of a witness box, aspects of his evidence had a flavour of being scripted as he appeared somewhat surprised by questions in cross examination that deviated from his narrative. Given that some conflicts exist between his evidence and that of Ms Bates, a degree of caution is required as to whether his recall on those matters was sound.

[19] Mr Hodgson gave his evidence clearly and conscientiously. Throughout a lengthy cross examination he remained consistent but not overly defensive. He was considered and calm with generally good recall.

[20] The evidence of Reverend Lovell and Mr Korziba was limited given their incidental involvement in relevant events. They were witnesses of credit, to the extent of their recall.

[21] Most, but not all of the facts in this matter are not in dispute. Some findings are required on disputed facts. I do not consider this to be a matter where I generally prefer the evidence of one witness over the other, except to indicate that I prefer the evidence of Mr Kitto and generally the evidence of Mr Hodgson where there is conflict. In other respects, I determine the factual disputes on an issue by issue basis.

[22] Where relevant to my decision, I make findings based on the demeanour of witnesses, the tone and manner of giving evidence, the consistency (or otherwise) between oral evidence and witness statements, the existence (or otherwise) of corroborating documentary evidence and the inherent plausibility of versions of events.

[23] Some of the evidence before me strayed from factual matters into hearsay, opinion, assumption and commentary. I place reduced levels of weight on such evidence except where it is corroborated by direct evidence, is uncontested or inherently believable. I am not bound by the rules of evidence but consider them to be a good and useful general guide. I adopt the approach of a Full Bench of this Commission which has said:

“The Commission is obliged by statute to perform its functions in a manner that is fair and just pursuant to s. 577(a) of the Act. Although it is not bound by the rules of evidence and procedure, the Commission tends to follow the rules of evidence as a general guide to good procedure. However, that which is ultimately required is judicial fairness, and that which is fair in a given situation depends on the circumstances.” 1

The Facts

[24] I make the following findings:

[25] SMG is an association connected to churches and schools of Christian faith which is contracted to deliver the National School Chaplaincy Program. The Chaplaincy Program is funded by the Australian Government to provide chaplaincy and chaplaincy support services in schools and school communities primarily through the employment of Pastoral Care Workers (formerly known as school chaplains). The Chaplaincy Program is administered by State and Territory governments.

[26] In South Australia, SMG is contracted by the Government of South Australia through the State Minister for Education to deliver the National School Chaplaincy Program. Relevant to these proceedings is a four year contract between the South Australian Minister for Education and SMG dated 29 January 2019. 2 That contract was a renegotiation and renewal of a former contract between the parties in similar terms for similar purposes.

[27] Under the contract, SMG must employ “suitably qualified” Pastoral Care Workers. Minimum qualification requirements are set out in clause 3.1. Pastoral care services can only be supplied by Pastoral Care Workers who have the requisite qualifications. 3 The contract is terminable by the government if SMG is in breach of the Agreement.4 Under the contract, SMG must “immediately withdraw” a Pastoral Care Worker from a school if it is no longer satisfied that the worker “meets or met the requirements of clause 3.2.6” (which include the qualification requirements).

[28] The minimum qualifications required under the contract are: 5

•  A Certificate IV in Youth Work; or

•  A Certificate IV in Pastoral Care; or

•  An equivalent qualification (as determined by the Department); and

•  Bullying and cyberbullying training (within 18 months of commencement) and competencies in mental health and making appropriate referrals.

[29] In early 2017 Ms Titley was encouraged by her local church community in Murray Bridge to apply for a vacancy as a school chaplain. After giving the matter thought, Ms Titley duly applied.

[30] By letter from SMG dated 29 March 2017, Ms Titley was advised that she was the preferred candidate for the position of Pastoral Care Worker. The letter stated that commencement in the role was subject to Department for Education and Child Development (DECD or the Department) approval of an Application for Transition to Minimum Qualifications & DCSI Clearance. 6

[31] On 18 April 2017 Paul Hodgson (SMG’s Regional Manager) sought advice on whether Ms Titley had equivalency for minimum qualifications. On the same day Mr Hodgson was advised that Ms Titley should undergo a full RPL (Recognised Prior Learning) process with an RTO (Registered Training Organisation) and not proceed with the equivalency pathway. 7 Ms Titley was notified of this on 18 April 2017.

[32] On 10 May 2017 the Department notified Mr Peter Skurray (then SMG’s Chaplaincy Services Manager) that the Panel had approved SMG’s minimum qualification transition application for Ms Titley with the following conditions:

“1. Prior to commencing NSCP service delivery within the school; the pastoral care worker must complete at least one mandatory unit of competency (i.e. CHCMHSOOl - Work with people with mental health, and CHCCCS016 – ‘Respond to client needs’); WITH the worker to complete the second mandatory unit of competency while under appropriate supervision arrangements made by the school principal.

2. The worker must complete their indicated studies – ‘Cert IV in Chaplaincy and Pastoral care’ - within 12 months.

3. Schools Ministry Group must notify DECD in writing of the dates of completion of the mandatory core units of competency, and the date of completion of the qualification identified in point 2 above, via email at DECD.NSCP@sa.gov.au”

[33] On 23 May 2017 Ms Titley completed one of two units of competency at an RTO (Tabor College) which permitted SMG to commence her placement. 8

[34] Ms Titley commenced casual employment as a Pastoral Care Worker with SMG in late May 2017.

[35] Her employment was initially based across two locations, Murray Bridge North Primary School and Murray Bridge South Primary School. In 2018, Ms Titley resigned from the position at the Murray Bridge North Primary School. 9

[36] Ms Titley did not complete the minimum qualifications within 12 months of commencing employment, as required by the Department and SMG. Nor did Ms Titley complete the second unit of competency even though she was enrolled to do so.

[37] On 18 October 2017 Tabor sent Ms Titley an invoice for payment for the second unit that she had enrolled but not undertaken. 10 On 24 October 2017 Ms Titley advised Tabor “I will do this course online – may not be until the new year”. Tabor advised Ms Titley by email on 19 January 2018 of her status as a student. She was advised that she had been withdrawn from the units not having completed studies during 2017, and would need to reapply.

[38] Neither during the remainder of 2017 nor in 2018 did Ms Titley reapply for enrolment or complete the units.

[39] An annual review was conducted by SMG on 28 May 2018, 12 months after Ms Titley commenced employment. Ms Titley, Mr Hodgson, Mr Kitto (the then School Principal) and Mr Steve Bown (local SMG Taskforce) were present together with Reverend Lovell (Uniting Church Pastor, Murray Bridge). By email dated 30 May 2018, Mr Hodgson confirmed the meeting outcome and action items which, amongst other matters, included Mr Hodgson following up with Mr Skurray about Ms Titley’s progress toward ‘minimum qualification’ and to initiate a request for an extension to the Department deadline for the qualification to be completed. 11

[40] On 3 October 2018 12 Mr Skurray met the Department. He reported on the progress of SMG’s Pastoral Care Workers under transitionary arrangements with regards to qualifications. He sought an extension for the ‘minimum qualification’ to be completed for two employees: Ms Titley and one other.

[41] On 27 November 2018 the Department advised Mr Skurray via email 13 that the request for an extension for the transition to minimum qualification for Ms Titley had been considered by a DECD Cross Sector Panel. The extension had been refused. The Panel considered this “to be a performance management issue for Schools Ministry Group to manage”. The email referred Mr Skurray to the terms of the contract (“the Goods and Services Agreement”) which requires SMG “to ensure that NSCP services are provided and performed by Pastoral Care Workers who have the requisite qualifications, skills, knowledge and experience to perform the NSCP services required.”14

[42] In light of the Department’s rejection of the extension of time request and its intimation that the matter was a disciplinary issue for SMG as employer, SMG moved to establish a disciplinary process to address Ms Titley’s failure to have secured the requisite qualification.

[43] On 10 December 2018 15 Mr Hodgson advised Ms Titley by email of a meeting scheduled for 12 December 2018, to be attended by Ms Titley, himself and Mr Kitto. He advised that the context of the meeting was the Department had not granted a further extension to complete the requirements under the transition to qualification arrangement. Mr Hodgson advised that the Department required SMG to ensure that it is fulfilling its obligations, as a contracted chaplaincy service provider, to deliver chaplaincy services that meet DECD requirements. Mr Hodgson stated:

“As things currently stand, the (serious) situation is that you are in breach of your employment conditions, and we must act to rectify this as a highest priority.”

[44] The email set out an agenda for the meeting and invited Ms Titley to bring a support person if she wished.

[45] On 12 December 2018, the abovementioned meeting took place between Ms Titley, Mr Hodgson and Mr Kitto (with another SMG employee Ms Pamela Morley in attendance). At that meeting a timeline was agreed between SMG and Ms Titley whereby Ms Titley would by no later than 14 February 2019 submit to the RTO (Tabor) a completed Recognition of Prior Learning Toolkit for assessment. Ms Titley also agreed to steps to be undertaken by specified dates in the interim (described as Interim Checkpoints) in order to achieve the 14 February 2019 deadline.

[46] The outcome of the meeting was confirmed to Ms Titley in writing two days later by email 16 dated 14 December 2018 from Mr Hodgson. The email set out what was described as ‘Interim checkpoints’ which were certain weekly tasks that Ms Titley was required to complete. It also advised:

“•  This is confirmation in writing that a disciplinary procedure has been enacted, and that a first verbal warning was given at the meeting on 12/12/18 to Rachel regarding her failure to complete the minimum qualification in the time frame specified.

•  To ensure SMG’s compliance with DECD Guidelines, and Rachel’s compliance with her employment conditions, SMG's disciplinary process will need to continue to be enacted if the above agreements and checkpoints are not adhered to

•  That is, Rachel’s employment in the role as Pastoral Care Worker at Murray Bridge South Primary School is contingent upon, and subject to, meeting the deadlines and checkpoint requirements as specified above.”

[47] Mr Hodgson was responsible for following up with Ms Titley to track progress against the Interim Checkpoints.

[48] On 21 December 2018 Ms Titley sent an email to Mr Hodgson advising that she had contacted Tabor, had made notes in particular sections of a document and had drafted letters to certain persons. By return email, Mr Hodgson requested copies of the notes and draft letters as evidence that she was progressing towards the timeline as previously agreed.

[49] On 17 January 2019 Ms Titley sent an email 17 to Mr Hodgson and Mr Kitto advising that she was meeting the next day with Dr Corlett-McDonald of Tabor and would provide an update after the meeting.

[50] On 18 January 2019 Ms Titley met with Dr Corlett-McDonald.

[51] On 18 January 2019 Ms Titley sent an email 18 to Mr Hodgson and Mr Kitto advising that she had met with Dr Corlett-McDonald and had more clarity around what was required. She advised that she was allocating Friday as a study day and Tuesday and Wednesday as days on site at Murray Bridge South Primary School.

[52] On 29 January 2019 Mr Hodgson asked Ms Titley to provide written documentation to support her progress. None was provided.

[53] On 30 January 2019 (at 1.54pm), Mr Hodgson sent a lengthy email 19 to Ms Titley advising of SMG’s “disappointment and concern” that it had not received any documentation from Ms Titley as evidence of her making progress towards completion of the minimum qualification for the Pastoral Care Worker role as per the December 2018 agreement. Mr Hodgson’s email went on to provide:

“…we require your urgent effort and attention to address this in order to be able to continue with your employment. The expectation and requirement agreed…of you submitting all necessary assessments for consideration for RPL to SMG and Tabor by the 14th February is still in place.”

It added:

“In order to continue to…monitor and assess your progress, I am requesting a meeting with you…next week;…this meeting will also be part of the disciplinary process commenced at our initial meeting…I again request that you immediately forward to me any documentation you have that will be evidence of your current progress…”

[54] Mr Hodgson suggested meeting times of 7 or 8 February and requested a response from Ms Titley as to her availability “by the end of today”.

[55] Ms Titley did not advise her availability to the suggested meeting times, as was requested.

[56] The following day, Thursday 31 January 2019, Ms Titley emailed a letter of support signed by Mr Kitto to Mr Hodgson. By return email,  20 Mr Hodgson requested Ms Titley also forward the other documentation of her progress through the RPL ‘toolkit’ which she had said she would send through when he spoke with her on 29 January 2019. He also requested that Ms Titley advise whether she was available for a meeting on 7 or 8 February 2019.

[57] Nothing more was provided by Ms Titley.

[58] On 5 February 2019, Mr Skurray sent an email 21 to Ms Titley referring to the agreement made between herself and SMG in relation to achieving the mandatory minimum qualification to perform the role of Pastoral Care Worker. Mr Skurray noted that SMG had only received a letter of support from Mr Kitto and that no other documentation had been provided despite Mr Hodgson’s attempts to contact Ms Titley and request the same. He said as follows:

“It is disappointing to note that you have been unresponsive to Paul’s repeated requests to both provide him with further evidence of your progress and advise him of your availability to meet…”

[59] Mr Skurray went on to advise Ms Titley that her actions and inactions meant that they had “to move to the next stage of the disciplinary process” and therefore the email served as a first written warning. He urged Ms Titley to contact Mr Hodgson to confirm her availability to meet and to forward documentation evidencing her progress towards achieving the ‘minimum qualification’.

[60] Ms Titley replied via email 22 to Mr Skurray later the same day, 5 February 2019. She advised that she had offered to meet with Mr Hodgson face to face at Murray Bridge, despite her “extremely intense” personal circumstances, however he had stated he had no intention of being in Murray Bridge and therefore no meeting was scheduled. She advised that she found Mr Hodgson’s multiple phone calls, texts and emails traumatic and would prefer that this type of contact did not happen in the future. Ms Titley asked that she be contacted in person or via phone when on site at Murray Bridge South Primary School, being Tuesdays and Wednesdays.

[61] On 7 February 2019 a meeting occurred between Ms Titley, Mr Hodgson and Mr Kitto. The agreed outcomes and action points from the meeting were confirmed in an email 23 from Mr Hodgson at 10.30am dated 8 February 2019. In particular the email stated:

“•  Rachel provided evidence that she has drafted, and had signed, four letters of support, which cover partial RPL assessment requirements for four modules. No evidence of any further progress was received. This falls well short of the interim checkpoint requirements agreed to on 21/12/18 and specified in the follow up email.

•  Rachel stated it is realistic, by the deadline of 14/2/19, to: complete in entirety the outstanding requirements to be assessed for RPL; to submit them to Tabor for assessment; and to provide evidence of completion of these RPL assessments to SMG.

•  Further, by 8am 15/2/19, Rachel to provide evidence to SMG that all elements required for the RPL assessment were submitted to Tabor by 14/2/18.

•  Rachel to discuss with Tabor her enrolment status, as submission of RPL requirements for assessment is contingent on enrolment in the course.

•  As per previous agreements on 21/12/18 (sic), once the complete RPL requirements are submitted for assessment, Rachel has until 29/4/19 to: respond to/re-submit/complete any further requirements Tabor specifies out of their assessment, and: to receive her qualification.”

[62] After the meeting on 7 February 2019, Ms Titley sent an email 24 to Mr Hodgson and Mr Kitto forwarding the aforementioned email chain she had with Tabor in October 2017 and January 2018 concerning having been withdrawn and no longer enrolled during 2018. Mr Skurray and Mr Hodgson were surprised to learn of this and disappointed it had not been disclosed earlier to SMG.

[63] At 11.38am on Friday 8 February 2019, Mr Skurray sent an email 25 to Ms Titley setting out the previous agreement reached at the meeting on 12 December 2018 and confirming that evidence had not been provided that any single unit of study had been completed. He also confirmed that at the meeting the previous day, 7 February 2019, it had come to light that Ms Titley was not enrolled at Tabor since late 2017 and that she had not informed SMG of that fact. Mr Skurray went on to say:

“You have not revealed this to SMG at any meeting or in any correspondence regarding your progress towards achieving your qualification. You were aware of the requirement to complete your studies and despite receiving an offer of support from Tabor to re-enrol in January 2018, you did not do so. It is unacceptable to make a commitment to SMG to complete your studies within the agreed timeframe whilst not revealing your enrolment status.

The lack of adherence to the timeline agreed and the lack of transparency regarding your enrolment status with Tabor are behaviours which warrant disciplinary action. Taking into account the verbal warning and first written warning already issued to you, I now confirm that we have moved to the next stage of the disciplinary process and that I am issuing you with a Second Written Warning. This letter serves as that warning and a copy of it will be placed on your file.

Rachel, I urge you to enrol with Tabor as soon as possible and forward any documentation which evidences progress towards achieving the minimum qualification required.”

[64] In early February 2019 Ms Titley advised Mr Kitto that she intended to only work two days a week in 2019 as a Pastoral Care Worker at the school, not four days a week as she had in 2018.

[65] On Wednesday 13 February 2019 at 11.00am, 26 Ms Titley responded to Mr Skurray’s email advising that she works Tuesdays and Wednesdays and had only just seen his email of 8 February 2019. Ms Titley confirmed that she was continuing to work on the ‘toolkit’ for submission to Dr Corlett-McDonald that week. She confirmed that she had provided Mr Kitto with two more letters and had also emailed Dr Corlett-McDonald that morning requesting clarification about the enrolment process and to also re-enrol her should she have been unenrolled.

[66] On 13 February 2019 Ms Titley took steps to re-enrol with Tabor, by sending Tabor a cheque (from a local church) for her enrolment.

[67] On 14 February 2019 Mr Hodgson was anxious to ensure that Ms Titley completed and sent her complete RPL submission to Tabor for assessment by the deadline of 14 February 2019 as per the agreement at meetings on 12 December 2018 and 7 February 2019. They spoke by phone that afternoon. Mr Hodgson sought that assurance, emphasising that all materials were required to be submitted for assessment that day. Ms Titley advised that she was “on track” to do so. At 4.51pm on 14 February 2019, Ms Titley sent an email 27 to Mr Hodgson, Mr Kitto and Mr Skurray advising:

“As per our conversation just now Im (sic) on track to submit my toolkit by 8am tomorrow morning.

Im (sic) just reconciling supportive evidence against the Document and Evidence Table.”

[68] At 7.56pm on Thursday 14 February 2019, Ms Titley sent an email 28 to Dr Corlett-McDonald advising that she had compiled the ‘toolkit’ and was forwarding it via email in four parts with a copy of a cheque for payment (for her enrolment). She also informed Dr Corlett-McDonald that she had re-enrolled the day before but had not received an auto-generated confirmation of enrolment. On that basis she asked Dr Corlett-McDonald to confirm her enrolment.

[69] Ms Titley cc’d to Mr Skurray and Mr Hodgson the material she had submitted to Tabor.

[70] The following morning (Friday 15 February 2019) Mr Skurray examined the materials that had been sent by Ms Titley to Tabor. He formed the provisional view that they were disorganised and, subject to Tabor’s view, did not appear to align to all of the requirements in Tabor’s toolkit. He consulted Mr Hodgson, SMG’s Human Resources Director (Ms Bates) and SMG’s CEO (Mr Chant). As Ms Bates had leave scheduled that day but had been called in because Mr Skurray wanted her advice, he recommended that she draft a letter of termination in the event that Tabor advised that the submission was incomplete and SMG decided to terminate Ms Titley’s employment whilst Ms Bates was not at work. Ms Bates prepared a draft letter of termination (under her name) and left for the day. Mr Skurray and Mr Hodgson urgently contacted Tabor by phone.

[71] Dr Corlett-McDonald had teaching commitments that day. It was not until the afternoon of 15 February 2019 she returned SMG’s call. Both Mr Skurray and Mr Hodgson were on line. Dr Corlett-McDonald advised as follows:

•  That the RPL submission had been received from Ms Titley on 14 February 2019;

•  That Dr Corlett-McDonald had briefly perused the RPL submission (and was continuing to peruse it during the phone call) but had not examined it in detail;

•  That Dr Corlett-McDonald had identified that the submission appeared to omit one document – the Personal Statement;

•  That without the Personal Statement the RPL submission was incomplete and was not assessable by Tabor. Tabor could only do so once all documents were submitted, including the Personal Statement;

•  Tabor had received and could have cashed the cheque to reactivate Ms Titley’s enrolment but considered that unfair at that stage given that her RPL submission was incomplete and could not yet be assessed.

[72] During this phone call both Mr Skurray and Mr Hodgson specifically asked Dr Corlett-McDonald whether, based on her interaction with Ms Titley, Ms Titley had been aware of the need to submit the Personal Statement and whether it was an essential component of her RPL submission. Dr Corlett-McDonald replied that she had made this requirement known to Ms Titley, that she had expected the submission to include the Personal Statement, and the Personal Statement was an important document bringing together threads of the accompanying material, and required preparation, thought and time to complete.

[73] Neither Mr Skurray nor Mr Hodgson asked Dr Corlett-McDonald whether she (or Tabor more generally) would accept late lodgement by Ms Titley of the Personal Statement.

[74] After the phone call, Mr Skurray and Mr Hodgson discussed how SMG should respond. They considered SMG’s options. Although recognising that it was unpleasant and would have personal ramifications for Ms Titley, both formed the collective view that Ms Titley had failed since 12 December 2018 to adhere to the agreed checkpoints requiring the provision of evidence of progress to SMG and had failed to lodge a complete RPL submission by the 14 February 2019 deadline that was assessable by Tabor. They accepted Dr Corlett-McDonald’s word that Ms Titley knew that the Personal Statement needed to be included. They were well satisfied that Ms Titley had been advised by each of them of SMG’s requirement that the RPL submission had to be submitted by that date in a form which was complete for assessment. 29

[75] Mr Skurray had the authority to decide whether Ms Titley should be terminated. He decided to terminate her employment. He did so because of the disciplinary process (including warnings) that had been activated over the preceding two months by SMG; the fact that Ms Titley still did not hold the requisite qualification despite having worked for SMG since May 2017; SMG’s contractual obligation to only employ Pastoral Care Workers who held or achieved such qualifications; and Ms Titley’s failure to meet (in SMG’s view) her obligations under the agreements she reached with SMG on 12 December 2018 and 7 February 2019. Mr Hodgson agreed with this course.

[76] Having made the decision, Mr Skurray decided not to wait until Ms Bates was due to return to work the following Monday to inform Ms Titley. He accessed the draft letter Ms Bates had prepared, made minor changes and sent it (using SMG’s generic email address) to Ms Titley by email at 3.07pm that afternoon (retaining Ms Bates as the signatory and email sender). 30

[77] Ms Bates was unaware that the letter of termination had been sent under her name, until she arrived at work the following Monday.

[78] Ms Titley’s employment was terminated by this email and letter of 15 February 2019. 31 The termination letter set out that there was a mandatory requirement for Ms Titley to achieve the minimum qualification to perform the role of Pastoral Care Worker and that she had not made substantial progress towards this since commencing her employment in 2017. It also referred to the fact that Ms Titley was not enrolled with Tabor. The letter then said:

“Therefore, I advise that we are issuing you with a Final Written Warning and that your employment with SMG is terminated with effect from today 15 February 2019.”

[79] The letter went on to advise that Ms Titley would be paid two weeks in lieu of notice and that should she wish to appeal the decision, she could do so in writing to the Chief Executive Officer within 14 days of receipt of the letter.

[80] At about 5.50pm on Sunday 17 February 2019 Ms Titley received a text message from Mr Kitto stating “Hi Rachel, I’ve just checked my email. How are you coping?” 32 Ms Titley gave evidence that she was not aware at this point that her employment had been terminated.

[81] On Monday 18 February 2019 Ms Titley met Mr Kitto at the Murray Bridge South Primary School to see whether he had any further information in relation to the termination of her employment. 33

[82] On 18 February 2019 Ms Bates posted a signed copy of the letter of termination to Ms Titley’s postal address. 34 That day, SMG also notified Tabor (Dr Corlett-McDonald) that Ms Titley’s employment had been terminated.

[83] At 3.47pm on 18 February 2019 Ms Titley emailed 35 Ms Bates at the generic SMG reception email. Ms Titley asked Ms Bates to clarify why the warning and termination had been issued given that she “had been compliant with rectifying the reasons for the first and second warnings by submitting her ‘toolkit’ at 8.00pm on 14 February 2019 and by re-enrolling with Tabor on 13 February 2019”.

[84] At 3.50pm on 18 February 2019 Dr Corlett-McDonald emailed 36 Ms Titley asking Ms Titley to contact her about the ‘toolkit’.

[85] On 19 February 2019, Dr Corlett-McDonald phoned Ms Titley in relation to the ‘toolkit’. 37 Dr Corlett-McDonald informed Ms Titley that this was the first day she was able to get back to her in relation to the ‘toolkit’ and that due to the urgent nature of the RPL, Tabor was prioritising Ms Titley’s case. Ms Titley suggested that Tabor had not followed a fair process by speaking to SMG about her toolkit before it spoke to her. Dr Corlett-McDonald advised Ms Titley that she had not followed the process over the last 12 months. Notwithstanding Ms Titley’s dismissal from SMG, and having submitted some materials to the RTO, Tabor was prepared to assess her RPL submission if Ms Titley submitted the outstanding material.

[86] On 28 February 2019 38 Ms Bates replied to Ms Titley’s email apologising for the delay on the basis that she had just returned from an overseas trip due to a family bereavement. Ms Bates’ email re-confirmed the warnings issued and the reason for termination.

[87] On 1 March 2019 Ms Titley wrote a letter of appeal to the CEO of SMG (Mr Chant), 39 appealing the decision to terminate her employment. Mr Chant acknowledged receipt of the appeal on 1 March 2019.40

[88] On 2 March 2019 Dr Corlett-McDonald emailed Ms Titley advising that she was still able to assess the RPL submission but was waiting on a Personal Statement, a Job and Person Specification for Ms Titley’s previous role at the school and to see all original documentation. Dr Corlett-McDonald asked Ms Titley to provide the same by close of business Wednesday 6 March 2019. Ms Titley did not provide these documents to Tabor by 6 March 2019.

[89] On 6 March 2019 Mr Chant responded to Ms Titley’s letter of appeal advising that he had reviewed her case and concluded that the dismissal was not “unjust, harsh or unfair”. The letter 41 stated:

“This conclusion combined with the fact that SMG cannot employ unqualified individuals in the role of PCW means that your request for re-instatement is necessarily refused.”

[90] On 8 March 2019 Ms Titley lodged an unfair dismissal application in the Fair Work Commission.

[91] On 19 March 2019 Ms Titley responded to Dr Corlett-McDonald advising that she would deliver a hard copy of her ‘toolkit’, including her Personal Statement on Monday 25 March 2019. Dr Corlett-McDonald responded via email on 22 March 2019 stating “Great Rachel! See you then”. Ms Titley did not deliver the hard copy to Tabor on 25 March 2019.

[92] On 9 April 2019 Ms Titley emailed 42 Dr Corlett-McDonald advising that she had tried to call to see whether she was available for Ms Titley to drop off the hard copy of the file and the cheque. Ms Titley explained that she had been under immense distress since the termination, had tonsillitis and a sick child. On Thursday 11 April 2019 Ms Titley sent Dr Corlett-McDonald’s office an email confirming that she would drop off the documents on Monday morning and was available to meet Dr Corlett-McDonald on Wednesday 17 April 2019 at 10.00am. The documents were not dropped off on Monday 15 April 2019.

[93] Three days later, on 18 April 2019, Ms Titley delivered the remaining documents of her RPL submission to Tabor. Dr Corlett-McDonald emailed 43 Ms Titley the same day thanking her for coming in to discuss the RPL. Dr Corlett-McDonald noted that the material was “looking very clear and in order”. Dr Corlett-McDonald advised that she anticipated being in a position to advise Ms Titley of the outcome by no later than 10 May 2019.

[94] On 9 May 2019 Dr Corlett-McDonald sent Ms Titley an email advising that she was able to grant Ms Titley 12 units of RPL and that she was just shy of the 13^th. Dr Corlett-McDonald made three suggestions how Ms Titley may attain the 13^th unit, one of which was to submit a current First Aid Certificate. Dr Corlett-McDonald requested that Ms Titley advise her by the next day, 10 May 2019, as to which option she would prefer.

[95] On 24 May 2019, Ms Titley emailed Dr Corlett-McDonald a copy of a First Aid Certificate issued by St John’s SA on 21 May 2019.

[96] Notwithstanding having successfully completed the final unit of her RPL submission in May 2019 (three months after dismissal) and being assessed by Tabor as having done so, Ms Titley did not pay Tabor the course fee. Having not done so, she did not receive the parchment for a Certificate IV in Pastoral Care via the RPL pathway. The evidence before me is that Ms Titley did not pay the course fee due to her financial circumstances as, at the time of securing the qualification, she was no longer earning significant wages from employment.

[97] Upon the hearing of this matter, Ms Titley had met the requirements of the RTO but, for reason of non-payment of the fee, remained unqualified to work as a Pastoral Care Worker.

The Submissions

[98] Ms Titley submits that her dismissal was unfair on both substantive and procedural grounds.

[99] She submits that SMG failed to produce evidence of a sound, defensible or well-founded reason for dismissal from her role. 44 She contends that the reason for dismissal, even if valid, was incongruent with her capacity and conduct. She says that she was an excellent Pastoral Care Worker, recognised by SMG as such and well-liked by the school and church communities. With respect to the failure to secure qualifications, she says that:

•  Personal reasons arose during 2018 which made it difficult to secure the qualification;

•  She was compliant with and took reasonable steps to implement the agreements made with SMG on 12 December 2018 and 7 February 2019 to secure the qualification;

•  She submitted material to the RTO by 14 February 2019, which the RTO subsequently advised her was “excellent”;

•  She was on track to secure the qualification by 29 April 2019 before being dismissed mid-process; and

•  She did, in substance, secure the qualification from the RTO in May 2019.

[100] Ms Titley submitted that the processes undertaken by SMG were unfair and not in compliance with acceptable human resource management. She contends that Mr Skurray’s failure to consult with her, his failure to consult with Fair Work and failure to obtain legal advice prior to dismissing her was ‘poor conduct’. 45 The action of SMG to issue three written warnings and terminate her employment all within just over one week was inappropriate.46 In particular, Ms Titley submits:47

•  The request she sought for an extension from the Department was made by Mr Skurray 5 months after she had made the request;

•  There was no contact from SMG during 2018 and then a flurry of contact that Ms Titley found overwhelming;

•  SMG’s three warnings were defective in that the concerns of SMG were not communicated to Ms Titley, there was no timeframe or support around warnings two and three and warning three was impossible to comply with as it was accompanied by dismissal;

•  The termination letter was drafted and sent without the knowledge of the author;

•  There was inadequate time provided for the assessor to comprehensively assess the ‘toolkit’, with someone else (without expertise) instead assessing the toolkit; and

•  SMG did not speak to her about the material she had submitted to the RTO before dismissing her.

[101] Ms Titley also submitted that the dismissal was harsh because:

•  Her internal appeal was rejected;

•  She subsequently qualified for the role;

•  Of the personal consequences resulting from being dismissed; and

•  Dismissal was disproportionate to the gravity of the alleged reason for termination.

[102] On the question of remedy, Ms Titley seeks an order for compensation to the maximum statutory limit of 6 months pay. She contends that this amount should be based on the equivalent of four days of work per week (which she worked in 2018) as her intention in 2019 was to work two days less in the school but to receive no reduction in pay as she intended to be paid for two days per week preparation time and time worked in community outreach off school premises. She says that personal hardship considerations warrant maximum compensation. She further submits that her earnings since dismissal should not be taken into account as they have been small and arise from insecure work.

[103] The employer, SMG, submit that the matter concerns the inherent requirements of the job, not work performance. It submits that Ms Titley was dismissed for a valid reason in that she failed to meet an inherent requirement of the role of a Pastoral Care Worker; that is, to have a formal qualification from a registered training organisation for a Certificate IV in Pastoral Care or Youth Work or equivalent qualification.

[104] On this basis, SMG submit that Ms Titley’s employment was terminated on 15 February 2019 in light of:

•  Ms Titley’s continuing and evident non-compliance with the condition of her contract of employment, being obtaining the required qualification for the role;

•  The impossibility of SMG being able to continue Ms Titley’s position without being in breach of the Department’s requirements;

•  Ms Titley’s lack of transparency with respect to her enrolment status and efforts to complete her studies between October 2017 and December 2018;

•  The multiple warnings given to Ms Titley;

•  Ms Titley’s failure to reach any of the checkpoints agreed to in December 2018; and

•  The incomplete RPL ‘toolkit’ submission that she submitted to the RTO on 14 February 2019.

[105] SMG further submit that Ms Titley was not denied procedural fairness and that the dismissal could not be found to be harsh, unjust or unreasonable on that basis.

[106] On the question of remedy, SMG submit that reinstatement is inappropriate as Ms Titley still holds no formal qualification for the role. It further submits that any compensation order should be modest only given that Ms Titley had reduced her availability to two days (12.02 hours) per week in 2019 (from four in 2018) and that the employer was not aware of personal hardship issues now raised by Ms Titley. It submits that Pastoral Care Workers are paid for 42 weeks in the year (school term weeks) and therefore the hours available to Ms Titley in 2019 would have been 505 hours. Given Ms Titley was a casual employee, it says that she is not entitled to notice or payment in lieu, therefore, any award of compensation should deduct the two weeks paid in lieu of notice. Should the Commission be minded to award compensation, SMG proposes the amount be $1,108.38 which is the equivalent of paying Ms Titley the balance of her available hours for Term 1, less the payment for notice in lieu already made upon termination.

Consideration

[107] I now consider whether Ms Titley’s dismissal was harsh, unjust or unreasonable.

[108] I am under a duty to consider each of the criteria in section 387 of the FW Act, 48 and now do so. In so doing, I take into account all of the evidence and submissions before me.

[109] Section 387 of the FW Act provides 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.”

Valid Reason (section 387(a))

[110] An employer must have a valid reason for the dismissal of an employee. It is the Commission’s task to determine if a valid reason exists. The reason(s) should be “sound, defensible and well founded” 49 and should not be “capricious, fanciful, spiteful or prejudiced.”50

[111] I accept SMG’s submission that the reason for dismissal concerns Ms Titley’s alleged conduct in failing to secure, within nominated deadlines, the minimum qualification for work as a Pastoral Care Worker, and matters related thereto. It does not concern work performance. It is an agreed fact, and one that I take into account, that Ms Titley performed her duties well and was supported in her chaplaincy work by the local churches and their community.

[112] The evidence before me is more nuanced than simply concluding that Ms Titley was dismissed because she had not secured the qualification. In the circumstances in which she came to be dismissed there were two operative factors in the mind of the employer that brought Mr Skurray (with Mr Hodgson’s support) to their conclusion. These were:

•  That Ms Titley had not secured the minimum qualification despite having a mandatory obligation to do so within 12 months of being first employed in May 2017 and despite having opportunities during the course of her employment to do so; and

•  That, on the final opportunity provided by the employer for Ms Titley to do so, Ms Titley failed to lodge a complete and assessable submission with Tabor by 14 February 2019, as was required by agreement between Ms Titley and SMG.

[113] Both of these propositions formed limbs of the reason for dismissal.

[114] SMG also felt misled by Ms Titley as to the state of her enrolment with Tabor.

[115] For reasons that follow, I find that both limbs are made out.

Failure to secure the qualification

[116] It is not disputed that Ms Titley had not secured the Certificate IV or equivalent qualification by the date of dismissal, despite having been employed for one year and nine months, across two school years (half of 2017 and the whole of 2018) as an unqualified employee.

[117] Nor is it disputed that Ms Titley had an obligation, from May 2017, to secure the qualification in order to meet her contractual obligation to SMG, and SMG’s contractual obligation to the Department. It was an inherent requirement of her job. The qualification was neither peripheral nor incidental. With one exception, a Pastoral Care Worker who was not qualified as such could not reasonably hold themselves out to staff, students, parents, the school community or the wider community as being a chaplain irrespective of whether they were performing the day to day tasks of a chaplain to everyone’s satisfaction.

[118] The exception was a pragmatic one, recognised by the Department and SMG. A ‘transition to qualification’ mechanism was provided for, under which an unqualified person could be employed as a chaplain for a limited time. Under that mechanism, provided upon commencement of employment at least one unit of the qualifying course had been completed by the prospective employee, and provided the employee continued to be enrolled and was actively proceeding to obtain the qualification within 12 months, the Department would permit and fund the employer to employ the non-qualified person to perform chaplaincy work for that period.

[119] Ms Titley was expressly employed on that basis. She had a contractual obligation to be qualified by no later than May 2018. The evidence before me is that Ms Titley did not take any substantial steps during the remainder of 2017 or in the first half of 2018 to secure her qualification by May 2018, despite this being her obligation.

[120] Ms Titley’s explanation is that she was confused and indecisive over this period. I accept that there are a number of different pathways that an employee can seek to utilise to secure the minimum qualification, such as completion of all course units, completion of some course units with recognition of prior learning (RPL) for others, or holding an equivalent qualification. Ms Titley did not hold an equivalent qualification. It was clear to both her and SMG that she needed to be enrolled with an RTO and pursue one of the former pathways. Tabor, with its expertise in Christian-based tertiary education, was a provider acceptable to Ms Titley, SMG and the Department.

[121] In reality, by May 2018 Ms Titley had done very little to settle her indecision or even commence further study, evidenced by the fact that when, in January 2018, Tabor advised that her enrolment had been withdrawn due to lack of activity, she took no steps over the next year to re-enrol.

[122] The obligation to secure the qualification was Ms Titley’s and hers alone. It was not one that the employer could secure for her. Bearing this in mind, SMG were neither disinterested nor overbearing in liaising with Ms Titley during this lengthy period. Although Mr Hodgson could have pressed the issue more actively before the start of the 2018 school year, May 2018 was the date when she was obligated to produce the qualification (the expiry of the 12 month transition to qualification period).

[123] SMG directly raised the issue with Ms Titley at her 12 month review, in May 2018. I accept the evidence of Mr Hodgson that SMG were concerned that Ms Titley had not secured the qualification by then, and that the employer raised this fundamental issue with her at that time. I also accept the evidence of Mr Hodgson that Ms Titley gave assurances that she was ‘on track’ but simply required more time. It was on that basis that SMG agreed to seek an extension of time on her behalf from the Department. She did not disclose that she had been advised, months earlier by Tabor, that she had been withdrawn from enrolment due to inactivity.

[124] Ms Titley correctly points to the fact that Mr Skurray delayed, by over four months, before making an application to the Department for an extension of time. SMG can be fairly criticised for that delay. Its application was made in October 2018, when it should have been made in June. However, that delay caused no prejudice to Ms Titley. It was her obligation to continue to actively secure the qualification during this period, and she did not do so. Having done nothing substantial by then, she waited to be advised of the outcome of the extension application before doing anything more to progress her situation. In any event, the delay gave Ms Titley more time to complete her qualification than might have otherwise been provided.

[125] Ms Titley’s explanation for not taking action in the second half of 2018 centres around her then personal circumstances. Her evidence was that a difficult and distressing matrimonial breakdown six years earlier (2012) was continuing to cause stress and anxiety leading her to seek and obtain (in October 2018) intervention orders against certain persons from the Murray Bridge Magistrates Court. 51 In August 2018 Ms Titley was also anxious about the third year anniversary of what was successful surgery on her daughter following a near drowning incident in 2015.

[126] I accept that these personal considerations were real causes of stress and anxiety for Ms Titley in at least the period August to October 2018. They did not stop her working as a Pastoral Care Worker, but they did occupy her mind and cause her to seek medical and emotional support. Ms Titley did not however disclose them (either in specific or general terms) to her employer, or indicate to her employer that personal considerations were inhibiting her capacity to proceed with securing her qualification. Given that Ms Titley knew that the employer was making an application for an extension of time on her behalf during this period, it would have been reasonable for her to have alerted her employer to these considerations in at least general terms, as it may have supported the extension application. She did not do so. SMG cannot be criticised for not acting on what it did not know.

[127] I therefore conclude that the first limb of the reason for dismissal is made out. Ms Titley had not secured the minimum qualification required of her despite having an obligation to do so within 12 months of being employed and despite having opportunities to do so during the course of her employment, both during and after that 12 month period.

Failure to lodge a complete RPL submission by the 14 February deadline

[128] The second limb of the reason for dismissal concerns the alleged failure to lodge a complete and assessable submission with the RTO (Tabor) by 14 February 2019, as was required by agreement between Ms Titley and SMG.

[129] The disciplinary process put in place by SMG in December 2018, once the extension of time was rejected, established two deadlines as well as checkpoints. The deadlines were for two events – the lodgement of a complete submission for the recognition of prior learning with Tabor for its assessment (the submission deadline) and a deadline for securing the formal qualification following assessment of the submission and completion of any additional units of study (the qualification deadline).

[130] At the first disciplinary meeting on 12 December 2018 the date for the submission deadline was agreed as 25 January 2019 if Tabor was able to assess the submission prior to the school year commencing. Otherwise the submission deadline was 14 February 2019. Multiple checkpoints for the completion of steps towards this end were also agreed (contact with Tabor by 14 December 2018, units submitted progressively on 21 December 2018, 11 January 2019, 18 January 2019, 25 January 2019 and if needed 1 February 2019 and 8 February 2019). Ms Titley also agreed to provide contemporaneous evidence of having met these checkpoints to her school manager and SMG.

[131] The evidence before me is that Ms Titley failed to meet these checkpoint obligations in form and substance. It was not until 18 January 2019 that she met with Tabor to ascertain her enrolment status and seek details of their requirements. No units were completed. No documents were submitted to Tabor or to SMG. By early February 2019, all Ms Titley had obtained was a letter of support from the school principal Mr Kitto.

[132] Active attempts by Mr Hodgson to obtain verification from Ms Titley as to her progress were not successful. His actions were reasonable. I do not accept that Mr Hodgson was or became overbearing during this period, as claimed by Ms Titley. I accept Mr Kitto’s evidence 52 that Mr Hodgson was “firm” but “not unreasonable” at the first disciplinary meeting rather than Ms Titley’s evidence that he was “aggressive”. As the disciplinary process took its course Ms Titley was feeling the pressure of Mr Hodgson’s follow-up via phone and email. That pressure was largely consequent on Ms Titley not wanting to explain to her employer that progress had not occurred of the type or at the pace agreed.

[133] In any event, the second disciplinary meeting on 7 February 2019 made the position crystal clear. Ms Titley had, by that date, obtained four letters of support but had not met her checkpoint obligations. The date for the submission deadline was set at 14 February 2019. By then Ms Titley was required to have submitted “all elements for the RPL assessment” 53 and provide proof to SMG by 8am on 15 February 2019. The date for the qualification deadline was set at 29 April 2019 (the start of Term 2). In effect, the employer reconciled to the fact that Ms Titley would work unqualified during Term 1 if she met the submission deadline.

[134] I find that it was a requirement of SMG, known and understood by Ms Titley, that she was not just required to send something to Tabor by 14 February 2019 but that her obligation had a critical qualitative requirement; the material she was required to submit by close of business on 14 February 2019 was to be a “complete” RPL submission in the sense that “all elements” required by Tabor were to be included so as to render the submission suitable “for assessment” by the RTO. These words and phrases are expressed in the written minutes of the meeting that were sent to Ms Titley by SMG on 8 February 2019. 54

[135] I am satisfied that in that final week preceding 14 February 2019 Ms Titley scrambled desperately to try to compile a complete and assessable RPL submission. Her materials, as submitted, are in evidence. 55

[136] Although voluminous, I find that the materials submitted by Ms Titley on the evening of 14 February 2019 were not complete in that at least one of the documents required (Document 1 Personal Statement) was not included. I further find, on Ms Titley’s evidence, that she knew of the obligation to include the Personal Statement. It was one of the documents listed in the Document and Evidence Table included in her submission,  56 which Table she referred to in her email to Mr Hodgson sent at 4.51pm on 14 February 2019. I further find, based on the evidence of Mr Skurray, Mr Hodgson and Ms Titley, that Tabor advised SMG that it considered the Personal Statement to be essential and that its absence made the materials unable to be assessed unless and until it was submitted.

[137] I further find, based on Ms Titley’s evidence, that she knew what the Personal Statement was required to contain. Ms Titley produced into evidence page 6 of Tabor’s course specification from which she was operating. 57 That specification says as follows:

“A personal statement

A personal statement should be included with every application, but generally will only be considered as supporting evidence, not as primary evidence.

A personal statement plays two very important roles in helping you prove your competence:

•  It gives you the opportunity to explain the evidence that is specific to your own organisation or industry so that the assessor can understand it and match it against the assessment criteria for the course.

•  It helps you highlight the knowledge and understanding required to do your job.

In addition it provides you with an opportunity to explain why you did what you did.

The personal statement is a concise description of your work activities and the functions you carry out, and should be related to the course and assessment criteria claimed. It reflects the actions you take, your knowledge and understanding.

Your personal report should include:

•  a brief description of the context (situations and circumstances) in which you carried out the work

•  details of the activities you undertook

•  an explanation of the planning process used

•  an explanation as to why you made certain decisions, and the factors which influenced the outcome; for example, was it necessary to follow company policy or any specific legislation? What underlying principles were applied? Relate any applicable theories to you evidence

•  the decisions regarding follow-up of the outcomes of your activities

•  any other similar situations you handled”

[138] In her submitted materials Ms Titley included the words “CV” alongside the checklist as if it were her Personal Statement. 58 This was not a Personal Statement as required by Tabor. Dr Corlett-McDonald correctly identified that the Personal Statement had not been submitted. Ms Titley had already attached her CV to the previous page of her materials – the page requiring her resume.

[139] Ms Titley’s evidence was that she believed she could submit a Personal Statement orally. She says that she gathered this understanding in 2018 from Dr Corlett-McDonald’s predecessor. I do not make such a finding. I treat this evidence with caution. Ms Titley makes no reference to this in her materials as submitted to Tabor, either in the box alongside the Personal Statement requirement in Exhibit A2, or elsewhere. There is nothing in the documentary evidence submitted to the Commission by Ms Titley or by Tabor (directly or indirectly) which indicate that an oral Personal Statement was permissible. Exhibit A6 expressly provides that the Personal Statement must be “included” with every application. This implies it is a written document. Under questioning, Ms Titley accepted that Dr Corlett-McDonald had told her on 18 January 2019 that she needed to submit a Personal Statement with her materials. 59 This too implies that it was to be a written document. Even if I were to find that Ms Titley had been informed by a previous officer of Tabor that an oral Personal Statement was permissible (which I have not), this subsequent advice from Dr Corlett-McDonald was the most up-to-date and authoritative information Ms Titley had about her obligations in this regard.

[140] Ms Titley further submitted that the Personal Statement was not an essential document or a critical omission because it is considered, according to Tabor’s submission specification as “supporting evidence not as primary evidence”. 60 This contention misconceives the obligation she had to produce a complete and assessable submission. It was Ms Titley’s duty to produce the Personal Statement, and all other required documents, by 14 February 2019 irrespective of their evidentiary value. That it was supporting evidence, not primary evidence is beside the point. That is simply an indication by the RTO that it is a self-produced document intended to join the dots of the primary evidence, not primary evidence in its own right.61 That character made it no less essential to render the submission assessable, nor any less required.

[141] Ms Titley also submitted that she was ‘on track’ to secure her qualification by 29 April 2019 as required, and that any deficiency in her submitted materials should have been addressed between her and Tabor (as it ultimately was).

[142] This submission misconceives the reasons for dismissal and the role that the second limb of the reasons took in the employer’s decision. Ms Titley was not employed by Tabor. She was employed by SMG. It was SMG that placed her under a disciplinary process at the end of the 2018 school year on the Department’s suggestion following her failure to have secured the qualification by May 2018. The obligation imposed on Ms Titley by SMG (agreed by Ms Titley) to meet the submission deadline (and to meet checkpoints along the way) was not an optional extra, nor was it a requirement that could be conditioned, set aside or moderated by ultimately meeting the qualification requirement. It was a stand-alone obligation in its own right that went to the trust and confidence the employer had in its employees to do what was agreed and required of them. It was distinct from the 29 April 2019 obligation to be qualified. Whilst the goal of the disciplinary process was qualification, the submission deadline was not a mere procedural step. It was made clear that it was, in its own right, an obligation against which Ms Titley’s employment could stand or fall.

[143] For these reasons I reject the submission that the reason for dismissal was not valid because Ms Titley had until 29 April 2019 to be qualified. In any event, I note that Ms Titley was not qualified by 29 April 2019. It was almost a full month later before Tabor assessed her as meeting the RPL requirements. In any event, her failure to pay the course fee led her to not secure the formal qualification, even at that time.

[144] A further factual matter drew SMG to the conclusion that it had lost trust and confidence in Ms Titley - it believed that it had been misled as to the state of her enrolment with Tabor. That was the reason for the second warning being issued on 8 February 2019. Reference to this issue is made in the termination letter.

[145] I conclude that the employer had reasonable grounds for this belief. Having required Ms Titley to complete one unit to secure transition to qualification status, SMG had employed Ms Titley on the basis that she was enrolled at Tabor. It reasonably believed that she would proceed to secure the Certificate IV qualification from Tabor by May 2018 (as agreed) by completing the second and then subsequent units of the RPL pathway. To do so, she required active enrolment. Although discussions between Ms Titley and Mr Hodgson about her studies were not frequent in this 12 month period, when they occurred Ms Titley gave no indication that she was other than enrolled. Yet, from at least January 2018 Ms Titley knew that Tabor had withdrawn her due to inactivity. Ms Titley’s failure to disclose this at her 12 month review (in all probability by oversight rather than intention) had the effect of misleading her employer about her enrolment status. She further failed to disclose this at the first disciplinary meeting in December 2018 and in oral and email discussions with Mr Hodgson in January 2019. It was only at the second disciplinary meeting on 7 February 2019 that Ms Titley’s lack of clarity about her enrolment status set SMG’s alarm bells ringing on this most fundamental of matters. When on the afternoon of 7 February 2019 Ms Titley provided to SMG the email chain between herself and Tabor of October 2017 and January 2018 SMG’s worst fears were realised. Without active enrolment with the RTO, the qualification could not be secured.

[146] For these reasons I conclude that Ms Titley failed to lodge a complete and assessable submission with Tabor by 14 February 2019, as was required by her agreement with SMG. The second limb of the reason for dismissal is made out.

Conclusion on valid reason

[147] A failure to meet or be able to perform the requirements of a job may constitute a valid reason for dismissal. This is particularly so where the requirement is inherent to the character of the role or the work to be performed, as distinct from being incidental or peripheral. 62 An employee’s failure to complete training required to meet qualifications to meet the inherent requirements of a job is capable of eroding the necessary trust and confidence required between an employer and employee so as to constitute a valid reason for dismissal.63

[148] Ms Titley’s failures struck at the heart of her employment obligations.

[149] Her failure to secure the minimum qualification despite an obligation to do so within 12 months of being first employed, and despite having extensive periods and opportunities to do so before and after that period, left her incapable of meeting an inherent requirement of her job – that was, to be qualified. The obligation to secure the qualification was not a peripheral requirement. It was a serious breach of a fundamental term of her employment. It also compromised the obligations SMG held to its funding agency, the Department. It was a valid reason for dismissal.

[150] Ms Titley’s failure to lodge a complete and assessable submission with Tabor by 14 February 2019, as agreed with SMG was a specific breach of the undertaking given to her employer that she would do so. In the circumstances of this matter, and together with her non enrolment status, it eroded the trust and confidence which SMG was entitled to have that its employees meet their mandated obligations on matters of fundamental importance to their employment. Lodging an incomplete submission to an RTO may not, in a different context, be of itself a valid reason for dismissal. However, in the context of this matter and given that what had transpired between the parties in the months and almost two years prior to 14 February 2019, the loss of trust and confidence produced on the part of SMG was reasonable in objective terms. That failure constituted a valid reason for dismissal.

[151] Individually, and in combination, these were valid reasons for dismissal.

[152] This conclusion weighs strongly against a finding of unfair dismissal.

Notification of the reason for dismissal (section 387(b))

[153] Ms Titley was notified of her dismissal via the email sent by Mr Skurray in the name of Ms Bates at 3.07pm on 15 February 2019 which attached the letter of termination (also under Ms Bates’ name). A hard copy of the termination letter was sent by Ms Bates the following Monday 18 February 2019.

[154] The letter of termination 64 provided Ms Titley with the reason for dismissal. It referred to both the obligation to hold the “mandatory minimum qualification to perform the role of Pastoral Care Worker with Schools Ministry Group” and “the responsibility to make progress towards your qualification since you commenced employment with us”. It concluded:65

“The extended deadline for the completion of your study has now passed, and you have fallen well short of submitting a complete RPL Submission to Tabor (as confirmed by Tabor themselves today, and as explained by Tabor to you previously).”

[155] Whether it can reasonably be said that Ms Titley fell “well short” as the employer alleged or simply fell short was a matter of debate before me. I need not determine that question. I have found that Ms Titley’s failure to lodge a complete and assessable submission by 14 February 2019 was of a fundamental nature given the context. In any event, the reason for dismissal was provided in those terms. There was no failure to provide the reason for dismissal.

[156] There was however a lack of full internal transparency in communicating the dismissal. The email of 15 February 2019 under Ms Bates’ name was actually Mr Skurray’s email as Ms Bates had left the workplace. Whilst Ms Bates had prepared a draft letter of termination it was Mr Skurray who completed and sent the letter under her name in her absence and without her knowledge

[157] I recognise that Ms Bates was SMG’s Human Resources Manager, and that issuing letters of termination appropriately came within her responsibilities. Whilst the lack of full transparency gave Ms Titley the false impression that it was Ms Bates who was an active party to the decision to dismiss (when in fact it was primarily Mr Skurray in consultation with Mr Hodgson) there was no immediate prejudice to Ms Titley in not being advised of Ms Bates’ limited involvement. Ms Titley did not open the dismissal email that evening or even the following day. It was not until being contacted by Mr Kitto on Sunday 17 February 2019 that she did so. There is no evidence that Ms Titley sought to contact a company officer over the weekend or contacted the wrong officer. Ms Titley did email Ms Bates in protest on 18 February 2019. Due to Ms Bates attending a family bereavement Ms Titley did not receive a reply until 28 February 2019. This was a delay, albeit for unexpected reasons. It is possible that had Mr Skurray been identified as the decision maker, Ms Titley may have redirected her protest and received a more prompt reply. The delayed reply did not however prevent Ms Titley following up the issue in the interim with Tabor, or speaking to Mr Kitto, or subsequently seeking an internal review or filing these proceedings.

[158] Having been notified of the reason for dismissal, this conclusion weighs marginally against a finding of unfair dismissal.

Opportunity to respond (section 387(c))

[159] The opportunity to respond provided for in section 387(c) of the FW Act is a factor which the Commission is required to consider but does not require a particular degree of formality. It is to be applied in a common sense way to ensure a dismissed employee is treated fairly. 66 Where an employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.67

[160] The evidence before me is that Ms Titley was given an opportunity to respond to SMG’s concerns over her failure to have secured the minimum qualification during both the first and the second disciplinary meetings. It was from those discussions that mutual agreements were reached as to next steps.

[161] I conclude that Ms Titley was provided a reasonable opportunity to secure her qualification and was provided a reasonable opportunity to submit a complete and assessable RPL submission by 14 February 2019.

[162] However, the decision to dismiss was made in haste. Ms Titley was not provided any opportunity, let alone a reasonable opportunity, to explain to her employer whether or why she had submitted an incomplete RPL toolkit by 14 February 2019 by failing to submit a Personal Statement with her materials.

[163] This was a material failure by the employer, given that one of the active limbs of the employer’s decision to dismiss was the incomplete and unassessable nature of the materials submitted. SMG took Dr Corlett-McDonald’s rushed word for that fact as well as its own inexpert conclusion. 68 On the evidence before me, there was no reasonable explanation advanced by SMG as to why it needed to act in such haste other than the fact that its patience had worn out and the submission deadline was a drop-dead obligation from its perspective. As Mr Skurray said in evidence:69

“it was at the end of a process that was now fully exhausted and we were just not getting any satisfactory evidence or progress.”

[164] Although Ms Titley’s explanations or protestations concerning the nature of what she submitted on 14 February 2019 may not have satisfied SMG, they would have provided SMG with insight into Ms Titley’s understanding of what she had submitted and what was required of her. It would also have provided SMG with an opportunity to secure Tabor’s more considered feedback on the submitted materials and for the employer to directly test Ms Titley’s explanations with Tabor.

[165] That SMG failed to do so weighs in favour of a finding of unfair dismissal notwithstanding the opportunities given to Ms Titley to explain her conduct at the earlier disciplinary meetings.

Opportunity for support person (section 387(d))

[166] Ms Titley was not refused a support person at the disciplinary meetings conducted by SMG. SMG invited her to bring a support person to the first disciplinary meeting. Ms Titley did so (Ms Morley). She did not seek to do so at the second disciplinary meeting.

[167] This is a neutral consideration.

Warnings concerning performance (section 387(e))

[168] Ms Titley was dismissed for failures of duty, not performance. However those failures of duty were the subject of two disciplinary meetings and prior warnings.

[169] The first disciplinary meeting was preceded by an email from Mr Hodgson which put Ms Titley in no doubt about the employer’s concern with her failure to secure the minimum qualification. It stated: 70

“As things currently stand, the (serious) situation is that you are in breach of your employment conditions, and we must act to rectify this as the highest priority.”

[170] At least from that moment, Ms Titley was on specific notice that there was a connection between her failure to secure the minimum qualification and her employment security.

[171] This was repeated orally at the first disciplinary meeting when a first verbal warning was given.

[172] It was again repeated in the written summary of the first disciplinary meeting circulated by Mr Hodgson by email on 14 December 2018: 71

“Rachel’s employment in the role of Pastoral Care Worker at Murray Bridge South Primary School is contingent upon, and subject to, meeting the deadlines and checkpoint requirements as specified above.”

[173] Believing Ms Titley to have failed to meet her checkpoint obligations in January 2019, Mr Hodgson repeated his warning in an email on 30 January 2019: 72

“You are currently in breach of this requirement, and we require your urgent effort and attention to address this in order to be able to continue with your employment.”

[174] Following further failure to meet checkpoint obligations, the disciplinary matter was escalated from Mr Hodgson to Mr Skurray. On 5 February 2019 Mr Skurray wrote to Ms Titley and issued a first written warning: 73

“Therefore, taking into account the verbal warning issued to you already, your actions – or inaction – leave us with little alternative than to move to the next stage of the disciplinary process and issue you with a First Written Warning. This letter services as that warning and a copy of it will be placed on your file.”

[175] The seriousness of the issue was repeated at the second disciplinary meeting on 7 February 2019, but no further warning was given. However, the following day after SMG believed Ms Titley had failed to inform it of her no longer being enrolled at Tabor, a second written warning was issued by Mr Skurray: 74

“The lack of adherence to the timeline and the lack of transparency regarding your enrolment status are behaviours which warrant disciplinary action…I now confirm that we have moved to the next stage of the disciplinary process and that I am issuing you with a Second Written Warning. This letter serves as that warning…”

[176] This is the full extent of the warnings, verbal and written given to Ms Titley during the two month disciplinary process that preceded her dismissal.

[177] However, curiously, the dismissal letter provided as follows: 75

“Therefore I advise that we are issuing you with a Final Written Warning and that your employment with SMG is terminated with effect from today, 15 February 2019.”

[178] In fact, the reference to a “Final Written Warning” was not misleading as to the status of her employment. Ms Titley understood the effect of the letter - that her employment was terminated on the terms stated.

[179] However, it was nonsensical for SMG to issue a fresh warning contemporaneously with its notice of termination. It had the potential to muddy the waters and create confusion.

[180] The purpose of a warning is self-evident: to put an employee on notice that certain workplace conduct (or performance) needs to be rectified in order to meet continuing employment obligations. A warning is a step in a disciplinary process falling short of dismissal aimed at rectifying non-compliant behaviour and putting an employee on notice that a failure to rectify has potential consequences for employment security.

[181] I recognise that operational staff in a business linked to community and religious organisations may not be well versed in the niceties of disciplinary processes. However, that the officers of SMG who viewed this letter in final or draft form, including its Human Resources Manager, failed to recognise the futility of issuing a final warning contemporaneously with a notice of dismissal is surprising to say the least.

[182] Although the evidence before me was not clear as to why a purported third written warning was issued, it may have been a misapplication of the ‘three strikes and you’re out’ maxim. The statutory object under the FW Act is to provide ‘a fair go all round’. 76 This includes notions of procedural fairness. In some cases, the absence of warnings is a telling factor in determining unfairness. However, it is not the case that employers are obligated to issue three warnings in advance of all dismissals irrespective of conduct or circumstance.

[183] The Third Written Warning did follow a ‘third strike” – in this instance a failure on Ms Titley’s part to lodge a complete and assessable submission by the submission deadline. However, as it was issued contemporaneously with dismissal, it provided no meaningful opportunity for Ms Titley to act upon it. I disregard it as a meaningful warning.

[184] This notwithstanding, I conclude that Ms Titley was provided with two earlier clear and specific written warnings in the weeks prior to dismissal. Each was justified and valid. I do not accept Ms Titley’s submission that moving from the first to the second written warning in a matter of days was excessive in the circumstances. The agreed submission deadline was fast approaching. Each warning was triggered by a different subject matter (lack of adherence to the checkpoints: warning 1; failure to have notified of non-enrolment status: warning 2).

[185] In addition, Ms Titley was provided a verbal warning and other oral and informal warnings and cautions during the disciplinary process. These also alerted her to the serious risk that failure to meet the requirements of the employer to secure her qualification could have for her continued employment. 77

[186] This conclusion weighs against a finding of unfair dismissal.

Size of employer’s enterprise (section 387(f)) and human resource capability (section 387(g))

[187] SMG employs in excess of 250 persons and is funded by the taxpayer, with support from local church communities, for the purposes of employing Pastoral Care Workers and related administrative and management staff. Although it is not a ‘for profit’ commercial enterprise, it is an employer of moderate scale. It has internal human resource capacity.

[188] In this matter, this conclusion is a neutral factor.

Other matters (section 387(h))

Harsh: Disproportionate sanction

[189] Ms Titley submits that even if her conduct constituted a failure of duty, dismissal was a disproportionate sanction.

[190] I do not agree.

[191] Viewed in context, the failures were serious failures of duty. This is why I have concluded that each individually and collectively constituted a valid reason for dismissal. They struck at the inherent requirements of the job and at the essential trust and confidence required to sustain an employment relationship. Dismissal in those circumstances was not a disproportionate response.

Harsh: Rejection of internal appeal

[192] When considering an unfair dismissal application, the relevance of an internal appeal process depends on the circumstances. For example, in the context of applications for an extension of time they may have particular relevance. 78

[193] Ms Titley submits that her dismissal was harsh because the internal appeal made to the Chief Executive on 1 March 2019 was rejected (on 6 March 2019) despite the fact that, at the time of the appeal, Tabor had advised (2 March 2019) that it would continue to assess her RPL toolkit, despite having been dismissed.

[194] There are a number of difficulties with this submission.

[195] The most obvious is that relevant events relied upon by Ms Titley (the making of her appeal, SMG’s consideration and rejection of the appeal and her email exchanges with Tabor of 19 February 2019 and 2 March 2019) all occurred post-dismissal. Whilst in certain circumstances post-dismissal facts may be relevant to the merits of an unfair dismissal case, this generally arises where those facts existed at the time of dismissal. 79 As a general principle, it would be erroneous to characterise a dismissal that occurred on a given date as harsh, unjust or unreasonable based on facts that did not exist at that time.

[196] Further, it is immaterial to the Commission’s consideration whether a range of post-dismissal options were open to an employer such as rescinding, reviewing or affirming its decision to dismiss. Even if (hypothetically) it were reasonable for Mr Chant (SMG’s Chief Executive) to wait until the outcome of Tabor’s assessment of Ms Titley’s RPL toolkit (once she submitted a complete and assessable submission) before determining the internal appeal it does not follow that the decision to dismiss was unreasonable.

[197] A dismissal is not harsh simply because a lesser sanction was an option open to SMG. It is not uncommon that a number of reasonable disciplinary courses may be available to an employer on a given set of facts. It is not the Commission’s role to stand in the shoes of an employer to determine which of those courses it may or should choose.

[198] For these reasons, the rejection of Ms Titley’s internal appeal did not render the dismissal harsh.

Harsh: Ms Titley subsequently qualified

[199] Ms Titley submits that her dismissal was harsh because SMG contemplated her securing her qualification by 29 April 2019 which was weeks after it dismissed her and that she subsequently met the qualification requirements for the job.

[200] In support of this submission Ms Titley says that the RTO (Tabor) advised her on 19 February 2019 that her (then incomplete) submission was “thus far excellent”, on 18 April 2019 that her (complete but unassessed) submission was “very clear and in order” and on 9 May 2019 (after assessment) that 12 of 13 mandatory units had been satisfied but that the 13^th (first aid certification) required completion (together with payment of the course fee) before the certification (parchment) could be issued.

[201] Although I have no direct evidence from Tabor to this effect, it is a reasonable inference on the evidence before me that Ms Titley, having successfully completed the first aid unit on 21 May 2019, thereafter met the qualification requirements and was eligible to receive the formal qualification of a Certificate IV upon payment of the course fee. Ms Titley did not take this final step. She remained without the mandatory minimum qualification at the hearing despite having belatedly met the qualification requirements.

[202] Even drawing this inference, it does not follow that Ms Titley’s dismissal was harsh.

[203] Firstly, these were all post dismissal events. As noted, it would be erroneous to characterise the dismissal that occurred on 14 February 2019 as harsh, unjust or unreasonable based on facts that did not exist at that time.

[204] Secondly, Ms Titley continued to fail to meet agreed or stipulated timeframes during these post dismissal events. For example:

•  On 2 March 2019 Tabor emailed Ms Titley requesting the additional documents required to assess the ‘toolkit’ by 6 March. That date passed without the documents being submitted;

•  On 19 March 2019 Ms Titley emailed Tabor advising that she will submit her ‘personal statement’ on 25 March. That date passed without the document being submitted;

•  On 8 April 2019 Tabor contacted Ms Titley to arrange another time for her to provide the RPL material. On 11 April 2019 Ms Titley advised that she would do so on 15 April 2019. That date passed without the documents submitted; and

•  On 18 April 2019 Ms Titley provided the required additional documents to Tabor, rendering her RPL submission assessable but, 29 April 2019 (the date qualification was required under the 12 December 2018 and 7 February 2019 agreement with SMG), passed without Ms Titley being qualified. By that date an assessable submission was before Tabor. Yet, one further unit of work still required completion.

[205] Thirdly, for reasons considered above, the submission deadline (14 February 2019) was a stand-alone obligation in its own right that went to the trust and confidence the employer had in Ms Titley to do what was agreed and required of her. It was distinct from the 29 April 2019 obligation that she be qualified by the start of Term 2.

[206] For these reasons I conclude that meeting the qualification requirement three months after dismissal did not re-characterise what was a fair dismissal for a valid reason as harsh.

Mitigation: harsh impact on Ms Titley

[207] It was submitted by Ms Titley that her dismissal was harsh because of the impact it has had on her and her earning capacity. Ms Titley’s evidence was that she has continued to suffer stress and anxiety and whilst she has been fortified by support from local churches and the community (as per the evidence of Reverend Lovell and Mr Korziba) she is concerned at the potential reputational impact of dismissal. She says that her financial position remains vulnerable, despite having an entrepreneurial desire to undertake speaking and presentation activities.

[208] I have no doubt that these impacts on Ms Titley appear real. I accept her evidence of financial vulnerability and that her circumstances are made worse by living in a regional part of the State. SMG was not indifferent to these factors. Mr Hodgson said in cross examination: 80

“We were aware that this would have significant personal ramifications for you, but the decision wasn’t personal, it was on the basis of not having the qualification and not being able to continue with your employment.”

[209] I also take into account Ms Titley’s age, work history and that she has children under her care. However, these factors alone are not unique. They do not outweigh conduct in breach of an employee’s duty or act to sufficiently transform a dismissal for a valid reason into one that can be characterised, at law, as harsh. 81

[210] In considering the significance of these factors I must weigh them alongside the self-evidently serious nature of her failures to secure her qualification in a timely manner, as well as my overall findings concerning procedural fairness.

[211] I am not satisfied that the impacts of dismissal on Ms Titley render the dismissal harsh.

Conclusion

[212] This matter concerns dismissal of a casual Pastoral Care Worker for not having secured a minimum formal qualification from an RTO for a Certificate IV in Pastoral Care or Youth Work or equivalent qualification.

[213] My role is not to review whether the employer had a reasonable basis for its decision but to consider whether, on the evidence before me, the dismissal of Ms Titley was harsh, unjust or unreasonable.

[214] The onus of proof in establishing that a dismissal was harsh, unjust or unreasonable rests on an applicant, in this case Ms Titley.

[215] However, in cases such as this, the employer carries an evidentiary burden to establish that dismissal was for a valid reason. The absence of a valid reason will almost invariably render the termination unfair. 82

[216] The ambit of the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd:  83

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

[217] In reaching my conclusion, I adopt the approach set out by a Full Bench of this Commission in B, C and D v Australian Postal Corporation T/A Australia Post: 84

“[58] Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:

(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;

against

(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.

[59] It is in that weighing that the Commission gives effect to a ‘fair go all round’.”

[218] I have found that valid reasons existed for dismissal. The reasons were sound, defensible and well founded. Ms Titley’s obligation to hold the requisite qualification was an inherent requirement of her job. It was a personal obligation and not one that could be secured on her behalf by any other person.

[219] The existence of the obligation was known to Ms Titley from the outset of her employment in May 2017. It was an express term of her contract of employment.

[220] After a prolonged period in employment (including passing of the 2017 and 2018 school years) Ms Titley had failed to secure the qualification.

[221] I have found that the reasons advanced by Ms Titley as to why she had not secured the qualification in 2017 or 2018 do not adequately explain the fact that she had not materially progressed in meeting her obligation across either of those school years. Aside from a period in 2018 when she was experiencing personal difficulties (issues that were real but not so severe as to cause her to cease working) her explanations are more in the nature of excuses and blame-shifting. They do not mitigate against the conclusion that a valid reason for dismissal existed.

[222] SMG enacted a disciplinary process (after one year and six months employment) once it became apparent that the Department (with whom the employer contracted to provide the chaplaincy services) would no longer extend the time permitted for Ms Titley to work without the mandated qualification. This was a reasonable course.

[223] The objective of the disciplinary process was to compel Ms Titley, under oversight by SMG, to secure the qualification by no later than the start of Term 1 of the 2019 school year (later extended to the start of Term 2) through the presentation of a complete and assessable submission to an RTO (Tabor) by no later than a defined date (14 February 2019).

[224] Compliance with both deadlines was made mandatory by the employer. Doing so was reasonable in the circumstances. The materials Ms Titley submitted to Tabor on 14 February 2019 were incomplete. The absence of a Personal Statement in the materials was a fundamental omission which rendered the submission unable to be assessed, unless and until it was provided. That failure was the trigger for the employer to make its decision to dismiss.

[225] Although the disciplinary process was not, in its final days, well executed or well communicated, its objective was not dismissal. Ms Titley’s dismissal was not predetermined. At the start of the disciplinary process SMG wanted Ms Titley qualified by the time Term 1 of the 2019 school year commenced and then, as time passed, by no later than the commencement of Term 2. Even on the morning of dismissal, SMG’s intent was that if Ms Titley had met the criteria of having lodged a complete and assessable toolkit at the submission deadline it would have submitted to an assessment by Tabor even though Ms Titley had not met individual checkpoints during the disciplinary process. 85

[226] There were procedural failings by SMG in the manner in which it made and communicated its decision to dismiss. Reasonable criticism can be levelled at the employer for not giving more time for Tabor to provide its considered feedback to SMG on what had been submitted, and the employer’s failure to discuss that feedback with Ms Titley before deciding to dismiss. The employer’s decision was made in haste, born out of frustration with Ms Titley’s lack of responsiveness to the extended disciplinary process it had put in place.

[227] At a micro level these procedural failings were real. They expose the employer to reasonable criticism and risk a finding of unfairness. Yet I conclude that whilst some elements of procedural fairness were denied, Ms Titley was not denied procedural fairness as a whole. Ms Titley knew for the entire period of her employment that she was required to secure the minimum qualification. The employer gave her multiple chances to do so. It did not impede her in any way. In the final two months of her employment she was on specific notice (including by formal warnings) of the serious risk to her employment should she fail to secure the necessary qualification or meet the mandated deadlines. The deadlines were reasonable, and determined in consultation with her and the School.

[228] Although Ms Titley was denied elements of procedural fairness, it does not follow that her dismissal was necessarily harsh, unjust or unreasonable. The statutory requirement is that all relevant factors (“the entire factual matrix” 86) need to be considered, and a weighing process applied.

[229] Nor is the statutory test whether the Commission would have dismissed in the circumstances that the employer did, or whether the employer could have or should have waited longer or taken additional steps to make the dismissal fairer. 87 As noted, the statutory object is one of ‘a fair go all round’ having regard to the decision that was made and all relevant circumstances.

[230] In this matter, the existence of a valid reason for dismissal, the profound consequence of an employee working unqualified beyond the authorised transition to qualification period, the length of time accorded to Ms Titley to secure her qualification and the lack of material progress in doing so are weighty considerations.

[231] These failures meant that by 2019 Ms Titley was still being employed as an unqualified Pastoral Care Worker, contrary to SMG’s contractual obligation to the Department and contrary to Ms Titley’s contractual obligation to SMG. Whilst Ms Titley lodged materials with Tabor on 14 February 2019, her failure to lodge a complete and assessable submission by that date was a failure to meet a critical deadline that had been established with her agreement. It was the trigger that precipitated the decision to dismiss. That failure fundamentally eroded the employer’s trust and confidence in her. By 15 February 2019 the employer’s patience had not just worn thin, but worn out.

[232] Weighing in Ms Titley’s favour is the fact that she was not given a final opportunity to respond to the employer’s conclusion that what she submitted to Tabor was incomplete and that she was otherwise a good worker supported in her chaplaincy by the local churches and community. However, given that Ms Titley knew what was required of her and despite the employer’s decision being made in haste and communicated poorly, the continuing absence of the minimum qualification and Ms Titley’s failure to meet a mandated requirement of the disciplinary process (lodging a complete and assessable submission by 14 February 2019) weighs strongly against a finding of unfairness, as does the length of time she had been working without the qualification.

[233] I have also considered whether dismissal was harsh in four further contexts: whether harsh because of personal impacts on Ms Titley; whether harsh because Ms Titley subsequently met the qualification requirements; whether harsh because Ms Titley’s internal appeal was refused; or whether dismissal was a disproportionate response. I have concluded that the personal impacts, whilst real, do not render the dismissal unfair. I have concluded that meeting the qualification requirements three months after dismissal did not re-characterise the dismissal as harsh. I have concluded that the rejection of Ms Titley’s internal appeal did not render the dismissal harsh. Nor was dismissal a disproportionate response given the circumstances.

[234] Overall, Ms Titley was not denied a fair go. There were procedural factors that weigh in favour of the finding sought by Ms Titley, but more profound factors, both procedural and substantive, that weigh in favour of SMG.

[235] Objectively considered, Ms Titley’s dismissal was not harsh, unjust or unreasonable.

[236] As the dismissal was not unfair, I am not required to consider issues of remedy.

[237] For these reasons and in conjunction with the publication of this decision I issue an Order that the application be dismissed.

DEPUTY PRESIDENT

Appearances:

R. Titley, on her own behalf

M. Chant and G. Benzier, for the Respondent

Hearing details:

2019.

Adelaide.

19, 20 and 21 August.

Printed by authority of the Commonwealth Government Printer

<PR713303>

 1   Pearse v Viva Energy Refining Pty Ltd [2017] FWCFB 4701 at [14]. See also section 591 of the FW Act and King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, 17 March 2000) Print S4213 at [61] - [62]; Enterprise Flexibility Agreement Test Case (Print M0464) at page 13; Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 509

 2   R39

 3   R39 Clause 3.2.6.3

 4   R39 Attachment 2 Clause 19

 5   R2 Clause 3.1.3 and 3.1.4

 6   R1 (having inadvertently marked two exhibits as R1, this exhibit remains referenced as R1; the Statement of Helen Bates is hereinafter referred to as Exhibit R1a)

 7   R2

 8   R5

 9   A1 Statement of Rachel Titley at [2]

 10   R22 email chain

 11   R10

 12   Confirmed by email 30 October 2018: Exhibit R12

 13   R12

 14   R39 Clause 3.2.6.3

 15   R13

 16   R14

 17   R16

 18   R17

 19   R18

 20   R19

 21   R20

 22   R21

 23   R23

 24   R22

 25   R24

 26   R26

 27   R27

 28   R28

 29   R41 Statement of Paul Hodgson paragraph xlii

 30   R30

 31   R29

 32   A1 Statement of Rachel Titley at [13]

 33   A1 Statement of Rachel Titley at [18]

 34   R1a Statement of Helen Bates at [10]

 35   R30

 36   R42

 37   R42

 38   R31

 39   R32

 40   R33

 41   R34

 42   R42

 43   R42 Statement of Nina Corlett-McDonald page 49 of 68

 44   Audio 21.8.19 2:01:22pm

 45   Audio 21.8.19 2:07:06pm-2:07:20pm

 46   Audio 21.8.19 2:11:53pm-2:12:06pm

 47   Audio 21.8.19 2:03:00pm-2:04:06pm

 48   Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]

 49   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373

 50   Ibid

 51   A18 and A19

 52   Audio 19.8.19 2.28pm

 53   R23

 54   R23

 55   A2

 56   A2 page 7

 57   A6

 58   A2 page 7 box 1

 59   Audio 20.8.19 10.19am

 60   A6 first sentence

 61   “it’s the piece of work that joins all the dots together” : Evidence of Paul Hodgson audio 21.8.19 10.04am

 62   X v Commonwealth [1999] HCA 63 at [102]; Applicant v Department of Defence [2014] FWC 4919

 63   Jaques v McCarroll Motor Group T/A McCarroll [2014] FWC 5793 at [38]

 64   R29

 65   R29 page 2

 66   RMIT v Asher (2010) 194 IR 1 at 14-15

 67   Gibson v Bosmac Pty Ltd (1995) 60 IR 1 at 7

 68   Evidence of Peter Skurray audio 20.8.19 2.29pm

 69   Audio 20.8.19 12.57pm

 70   R13

 71   R14 page 2

 72   R18

 73   R20

 74   R24

 75   R29 page 2

 76   Section 381(2) FW Act

 77   See, for example, evidence of Paul Hodgson audio 20.8.10 4.15pm

 78   Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [14]

 79   Shepherd v Felt Textiles of Australia Ltd [1931] HCA 21; Tate v 4WD & Outdoor Supacentre Pty Ltd T/A 4WD Supacentre [2015] FWC 626 at [86]. Post dismissal facts may, however, be relevant to remedy

 80   Audio 21.8.19 9.46am

 81   For example, Dawson v Qantas Airways Limited [2017] FWCFB 1712 at [48]

 82   Parmalat Food Products Pty Ltd v Wilio [2011] FWAFB 1166 at [24]

 83   [1995] HCA 24; (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ

 84   [2013] FWCFB 6191

 85   Evidence of Paul Hodgson audio 21.8.19 10.02am

 86   Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185 at [46] citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 413

 87   Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185 at [46] citing Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685