Ms Vicki Taylor gave evidence as having been a long standing member of the respondent’s board up until 18 September 2010. Initially she had been employed by the respondent as a bookkeeper/payroll/treasurer and later as a contractor. The witness gave evidence that the applicant raised the issue of pay rates with the respondent. The witness prepared calculations of back pay for a two year period although the underpayment issue arose earlier. These calculations were presented to a board meeting. The witness gave evidence that the board voted to make good the back payment over two years. The casual crèche workers were later paid their entitlements by cheque excluding the payment of superannuation.
The witness was requested to attend a meeting between the applicant and Ms Ham as a witness to discuss alleged bullying by the applicant. The witness gave evidence that the questioning by Ms Ham was aggressive and intimidating and the applicant was upset. The applicant left the meeting indicating she would be back later however she was unable to return that day. The witness raised the inappropriateness of the harsh form of questioning of the applicant by Ms Ham (ts 27).
The witness gave evidence Ms Ham made a decision to inform Ms Ireland, the chairperson to convene a meeting with everyone concerned. The applicant was able to bring a support person. The witness gave evidence the applicant had requested and was granted permission to speak to board members without the presence of Ms Ham. Mr McCorry was informed of the situation in June 2010. Ms Taylor gave evidence that at the board meeting of 25 June 2010 reference was made regarding a letter of complaint in relation to bullying allegations against Ms Ham from the applicant to Ms Ireland. It was the view of the witness board members expressed concerns that they had not previously been made aware of the complaint. The witness felt it was identical to the situation being dealt with respect to the applicant and raised her concerns that there was no equality in that the applicant was stood down whereas the other person was not.
The witness gave evidence a further meeting was scheduled to detail the reasons for the applicant’s dismissal. In the witness’ opinion the applicant’s career was being decided without all information being made available. At the meeting there was a discussion about the failure of the applicant to cooperate with the investigation. As a result of discussions generally the board came to their decision to terminate the applicant because of bullying. It was considered the respondent had a duty of care to the rest of the employees.
The witness recalled an incident which occurred sometime earlier where the applicant made a threat against another employee in saying ‘If anybody else crosses me today, I’m going to king hit them’ (ts 31). The witness did not see it as a threat rather regarding it as an offhand remark. The witness gave evidence that in the ensuing time the applicant had never acted upon the threat.
Ms Sharon Anne Philips gave evidence as a crèche worker having worked with the respondent for about five years under the supervision of the applicant. The witness gave evidence her relationship with the applicant was fine most of the time however at times the applicant was temperamental. The witness gave evidence that she had been asked by Ms Ham to write a letter of complaint about the applicant.
The witness recalled an incident that occurred in mid-2009 where the applicant stated ‘if anyone else crosses me today, I’m going to king hit them’ (ts 36). The witness indicated it was a one off incident and the applicant offered no apology.
The witness gave evidence in April 2010 she was shown a letter indicating she was owed some money. The witness gave evidence the correspondence released the employer from liability for the incorrect payment. The witness was asked to sign the letter and keep the payment confidential.
The witness gave evidence she did not make a complaint regarding the ‘king hit’ comment made in 2009 because she did not feel it was directed at her at the time. The witness considers the applicant’s moods were unpredictable. The witness gave evidence that she would not be able to work with the applicant if she returned to the crèche.
The witness was asked in cross-examination whether she recalled in late April Ms Ham showing her correspondence regarding back pay to which she replied in the affirmative.
Ms Catherine Deborah Bramley gave evidence as having commenced employment as a child care worker with the respondent and in February 2011 became a crèche supervisor. The witness is currently employed with the respondent on a part-time basis.
The witness gave evidence that any issues that arose between herself and the applicant were resolved privately and that she did not feel threatened physically by the applicant. The witness gave evidence that most of the time when the applicant was the supervisor the crèche was a pleasant place to work and furthermore she considered herself a friend of the applicant. Only on a few occasions when there was confrontation was it unpleasant. On those occasions ‘we had – just had to watch what we say so we didn’t antagonise the situation’ (ts 44). The witness recalled an incident that occurred in September 2009 with respect to the applicant being in a bad mood and threatening to ‘king hit’ anyone who got in her way and although surprised by the threat the witness gave evidence she did not feel physically threatened.
The witness reported the incident to the respondent. This resulted in a staff meeting with all the crèche staff present. The witness gave evidence that the meeting resulted in the applicant being more aware of the problem. At the request of the respondent the witness, who at that time was a child care worker, was asked to submit a complaint against the applicant. When the witness submitted her complaint she did not imagine the applicant’s employment would be terminated. At the time she was asked by the respondent to submit a complaint about the applicant, she did not think it was going to go any further than the board and the witness gave evidence that ‘Yes, sorry, yeah, I said that’ (ts 47).
In April 2010 the witness was advised she was entitled to some back pay. The witness gave evidence she felt intimidated by the applicant in discussions that ensued over the issue. The witness indicated she would resign rather than work with the applicant in the future.
In cross-examination Mr McCorry asked the witness whether she had informed the applicant that she was unable to discuss matters relevant to the case at the time the applicant had telephoned the witness to which the witness answered in the affirmative. In addition the witness was asked whether she was being bullied or whether she was unhappy at work to which she answered ‘Yes’ (ts 49). The witness gave evidence that she reported that conversation to Ms Ham.
Ms Janelle Price was not called by agreement. Her witness statement (exhibit A7) was accepted without any cross-examination.
Mr Rodney Powell gave evidence as a Senior Inspector and Senior Scientific Officer with WorkSafe Western Australia (WorkSafe). Mr Powell first became involved in investigating the respondent for safe joint practices following a complaint lodged by the applicant in early June 2010.
The witness gave evidence that the complaint was referred to him. Following a number of conversations with the applicant the witness decided to undertake an investigation. The witness gave evidence that information was acquired from the respondent, copies of the first investigation report (exhibit R1 tab 10), the witness statements and the letters of complaint. At the same time the witness gave evidence he spoke to several of the employees.
On 24 August 2011 the witness gave evidence WorkSafe issued an improvement notice against the respondent (exhibit A2) for a breach of s 23k(2) of the OSH Actfor a failure of the respondent to adequately investigate matters reported by employees. In issuing the improvement notice against the respondent the witness detailed a lengthy document to the board of the respondent (annexure 27b) as follows:
Ms Wood lodged a complaint with WorkSafe in relation alleged bullying at Rainbow Coast Neighbourhood Centre. As part of my investigation I have considered both the complaints made against Ms Wood and the complaints made by Ms Wood against Ms Ham. The ‘terms of reference' of my investigation have been to determine if both issues have been adequately investigated. This is a requirement of Section 23(k) of the Occupational Safety and Health Act 1984 (copy attached).
I would firstly like to make some observations concerning the nature of bullying in the workplace.
Bullying is defined on our Code of Practice (copy enclosed) in terms of repeated unreasonable or inappropriate behaviours. It is also defined in terms of the effect upon the individual. When investigating allegations of bullying there are three things that should be considered:
1. Bullying can be quite subtle and can take the form of otherwise legitimate actions or decisions. What can sometimes indicate that these are bullying is if the actions or decisions have the cumulative effect of undermining or disempowering the individual or if there is a pattern of cause and effect.
2. Bullying is defined by the effect of the behaviour, even if there was no specific intent to bully. However, where the behaviours are overt and there is inadequate evidence of intent, it may be more appropriate to deal with the behaviours themselves (i.e. if the behaviours were inappropriate, they are managed as inappropriate behaviours). It is also appropriate to look for other causes of the behaviours. Sometimes allegations of bullying are actually inter-personal conflict. If the environment is stressful, employees may say inappropriate things, may misinterpret statements or be more distressed when things are said that are inappropriate. The underlying problems may therefore be one of stressful work environment.
3. In investigating bullying allegations it is necessary to look for patterns or repeated inappropriate behaviours. It is also important to address those behaviours that are considered to be inappropriate even if they are not found to be repeated or form a pattern.
It is my understanding that a number of employees complained about the conduct of Ms Wood. In a meeting with Board members on 10 May 2010 Ms Wood raised a number of concerns in relation to her Manager, Ms Ham. Further information related to her complaint was subsequently provided by Ms Wood to the Board Chairperson, Ms Ireland on 1 June 2010.
In such a situation such as this it is likely that the issues are related. From my review of the documentation I noted the following:
1. One of the statements in the Investigation Report by Ms Bridget Green of the WorkWise Advisory Services is that the bullying by Ms Wood has been going on for quite some time. The Report was also stated that Ms Ham had tried to speak with Ms Wood ‘about what’s wrong’ and Ms Wood gets really ‘cranky’. Also stated is that people go to Ms Ham first as they do not want to approach Ms Wood.
Despite this, Ms Ham's Performance Appraisal of Ms Wood of December 2008 gives no indication of problems and the letter from Ms Ireland and Ms Ham to Ms Wood of 5 May 2010 treats the complaints against Ms Wood and her scheduled Performance Appraisal as separate issues. This letter also states that the Performance Appraisal does not necessitate a support person, suggesting that her general performance is not a serious issue.
2. Ms Ham's version of events concerning the “king hit” incident (as presented at the meeting with the Board members on 10 May 2010) was that: Last year we had a conversation regarding your lack of communication with the staff this was followed up with telling the crèche staff that if anyone complained again about you, you would king head them. Ms Wood’s version of events was that she said if anyone crosses me I will king hit them and that she then spoke about management's lack of communication.
3. The letter from Ms Ireland to Ms Wood of 21 May 2010 states: I would like to draw your attention to the potential consequences of any formal written complaint which have been made against you with regard to your actions. The letter goes on to state: We have received written complaints regarding your inappropriate behaviour initiated at the workplace.
I have interviewed one of the 3 employees who complained, Ms Catherine Bramley. She informed me that Ms Ham requested that she ‘jot down the things that have happened and know of and put it on paper so that the Board can see it.’ This is reflected in her letter of complaint that begins with: I am an employee of Rainbow Coast Neighbourhood Centre and at the request of my manager… It would appear therefore that with at least one of the employees who complained, the information was solicited. To then imply that the Board had received a formal complaint is misleading.
The investigation into both matters should have been undertaken concurrently. Yet the letter to Ms Wood from Mr Graham McCorry of Labourline Industrial and Workplace Relations Consulting of 14 June 2010 stated that Ms Wood’s complaint against Ms Ham ‘will be investigated in due course’. The following day Ms Ireland wrote to Ms Wood requiring her to show just cause why she should not be terminated. How could the investigation against Ms Ham be adequately conducted if Ms Wood was terminated?
I understand that requirement that Ms Wood should show just cause was withdrawn pending investigation of her complaints.
I would now like to make a few observations concerning the Investigation Report by Ms Bridget Green of WorkWise Advisory Services. I have read the written complaints from Ms Catherine Bramley, Ms Sharon Philipps and Ms Sue Kippin, the Investigation Report and the supporting Records of Interview from the above employees and that of the witness, Ms Jade Lampard.
While the Report corroborates the original complaints concerning the pay issue, the Report includes some quite damning general statements about Ms Wood:
The conversations with Kylie are anxious and distracting from the job at hand.
The bullying has been going on for quite some time now.
Her behaviour shows lack of respect for her co-workers.
The staff are terrified of Kylie.
When she arrives for work if she is in a bad mood everyone needs to walk around her.
The Crèche has been a much better place since Kylie has been suspended.
The Board should have used caution when using the findings of this Report. The statements above infer that all the staff experience problems with Ms Wood. But Ms Green was not given the opportunity to interview all of the persons who work for, or have worked for Ms Wood, only those ‘identified by the employer.’ I understand that 7 employees work under Ms Wood, yet only 3 of her subordinates were interviewed and 1 of the 3 written complaints ‘received‘ by the Board was from the Receptionist, Ms Kippin.
Furthermore, in the interests of confidentiality, the Board was not provided with the Records of Interview. So it is not possible to identify what statements were made by whom. This should have been of concern in regards to any statements made by Ms Kippin. While her statements are useful in corroborating the statements made by other employees (i.e. Ms Woods’ subordinates), any comments made by her concerning the Crèche staff could be considered to be hearsay.
Ms Jade Lampard was interviewed as a witness to some of the events. In her Record of Interview she stated that she is always found Ms Wood to be approachable and that she has never felt threatened by Ms Wood. I have interviewed one of the other employees who was not ‘identified by the employer,’ Ms Narelle Jenks. Her experiences with Ms Wood also contradict the general statements quoted in the Report.
The statements in the Report indicate, there are potentially serious problems. But given the limited terms of reference of Ms Greens investigation and limited information provided in the Report, the Board should have conducted further investigations into the issues in order to confirm whether the general statements about Ms Wood are supported by all staff and if so, why these issues where not raised earlier and appropriately performance managed.
I understand that Mr McCorry was to undertake an investigation into Ms Wood’s complaint. But given the limitations of Ms Green’s Report any investigation by Mr McCorry would not be adequate unless the issues raised against Ms Wood were properly investigated. Mr McCorry has written to Ms Wood and has asked her to provide comments on some of the findings of the Report. This includes the general statements I have previously referred to. Other than denying the statements, I fail to see how Ms Wood can respond to them.
As I indicated in the beginning of this letter, my investigation has considered if both issues have been adequately investigated. For reasons I have discussed, I have concluded that is not the case. The issues raised concerning Ms Wood have not been adequately investigated. As the matters are likely to be inter-related, it therefore follows that investigation in to the complaints against Ms Ham cannot have been adequately investigated. I have therefore decided to issue an Improvement Notice (attached). This directs you to conduct a concurrent investigation into the complaints against Ms Ham and Ms Wood. Further information concerning the compliance and appeal requirements are on the reverse of the Notice. In matters such as this the date on which the bullying was said to occur is arbitrary.
Yours Faithfully
Rodney Powell
Senior Inspector/Scientific Officer
WorkSafe Division
Department of Commerce
24 August 2010
The improvement notice was subsequently reviewed by the respondent and the appeal was dismissed although the notice was subject to an amended compliance date. The witness gave evidence that WorkSafe received a compliance slip indicating the respondent had complied with the improvement notice. The witness gave evidence he had some concerns about the respondent advising the compliance had been met given the fact that Mr McCorry had concluded his investigation and action was taken to terminate the applicant prior to the appeal having been finalised.
The witness gave evidence the basis of the improvement notice was that issues concerning the applicant’s conduct had not been adequately investigated. Of approximately seven employees who worked with the applicant only two were interviewed. The witness gave evidence that the report drawn up by the respondent gave the impression there were serious long term problems with the applicant’s behaviour however at her performance appraisal meeting in December 2008 she did not need a support person present indicating that that was not an issue.
At 13 August 2011 the witness was unaware of what Mr McCorry was doing with respect to the investigation of complaints against the applicant and Ms Ham, other than being advised of the investigation by letter of 14 June 2011.
The witness received a report and copies of witness statements as received by Mrs Green. After examining the report and speaking with two members of staff the witness formed an opinion that the respondent was contravening the Act. In coming to this decision the witness gave evidence he took into account the way the report was being generated, the terms of reference of the initial report and the correspondence from Mr McCorry. The improvement notice was issued with a direction that the investigations into complaints against Ms Ham and the applicant ought be conducted concurrently.
In making his decision the witness gave evidence he was unaware of exactly what Mr McCorry’s investigation encompassed and assumed he was not investigating both matters comprehensively.
The witness gave evidence that in providing feedback to the applicant in cases of bullying it is quite common to give assistance and advice to complainants because of the nature of bullying in the community. There is a need to deal with the emotion of the employees involved and it is common for issues to be raised concerning performance of employees. If a situation is not handled in an appropriate manner by the respondent the applicant can perceive they are being bullied and ignore the message the employer is trying to advance, which may then escalate the issue.
The witness gave evidence that WorkSafe had issued the improvement notice, before he had viewed Mr McCorry’s report. The witness denied he had assisted the applicant in her unfair dismissal claim before the Commission, instead he had responded to questions from the applicant and Mr Fleming, counsel for the applicant. The witness provided Mr Fleming with advice to look at the WorkSafe Code of Practice on bullying a document also provided to the respondent when he served the improvement notice.
The witness gave evidence he requested from the respondent details of all board members in order to discuss with them issues concerning compliance with the improvement notice.
The witness gave evidence he advised the then Commissioner of WorkSafe, Ms Nina Lyhne (Ms Lyhne) upheld the improvement notice, modifying the wording to direct the respondent to conduct an investigation in accordance with the code of practice on bullying. The improvement notice at first instance was entered as exhibit A2.
The Commissioner identified the correspondence from Ms Lyhne to Ms Ireland dated 6 October 2010 as exhibit A3. The application by the respondent seeking a review of the improvement notice at first instance was identified as exhibit A4.
The Commissioner added to the reference for review correspondence from Labourline so that it became part of exhibit A4. The applicant requested the correspondence from Mr McCorry to Mr Powell which Mr Powell confirmed as receiving, as dated 15 December 2010 (exhibit A5).
The Commissioner asked the witness whether, following the review process, it was referred back to the witness to follow up to ensure that the respondent had in fact complied with the directions. The witness replied in the affirmative answering that WorkSafe received a compliance slip indicating they had complied however the witness indicated there were some concerns given the fact that Mr McCorry had concluded his investigation into the bullying assertions against Ms Ham and action had already been taken to terminate Ms Wood before the appeal had been finalised.
Well, the whole, I suppose, basis of my Improvement Notice was the fact that the issues concerning Ms Wood’s conduct had not been adequately investigated. The fact that, as indicated in the letter supporting the Improvement Notice, the employer had been quite selective in terms of who was actually interviewed by Bridget Green (?). One of the employees, I think – I believe it was Jade – Ms Jade Lampard gave some very positive comments about Ms Wood. They did not appear in the report, I presume because that was outside the terms of reference of the report. There were, I think, seven employees who worked for Ms Wood, only two of those were interviewed. There was some quite damning statements made about Ms Wood in the report, yet the majority of those were made by the receptionist, I think Ms Kippin who was not one of her subordinates. And the report also gave the impression, if it was to believe, that they were quite serious long term problems with Ms Wood’s behaviour, yet a most recent performance appraisal had been in December 2008. The next one was scheduled for May 2010 and the correspondence between Ms Wood and the Board indicated that at that performance appraisal meeting she did not need a support person present, indicating that was not an issue. So if her performance was that there were also serious questions that needed to be asked concerning the quality of the supervision provided by Ms Ham.
Thank you, Mr Powell.
Do you have any further questions before I go to cross examination?
PRICE, MS: So in your opinion, Mr Powell, the notice ultimately was not complied with, or could not be complied with, because the investigations, or the applicant had been terminated before compliance had been determined upon? --- I’ve have had concerns about whether it’s actually been complied with or not.
(ts 56)
The witness gave evidence that the applicant was seeking further information to be in a better position to address those complaints that had been made against her as they related to bullying. The witness gave evidence he became aware the applicant was represented by Mr Fleming of counsel, observed that Mr Fleming may not have been informing the applicant of the situation and asked the applicant to obtain and provide to him correspondence Mr Fleming may have received in connection with the complaints. Depending on the information provided WorkSafe considered whether there were reasonable grounds to justify getting involved. From the information before him the witness was eventually satisfied that he had sufficient grounds to form the opinion that the matter had not been adequately investigated.
The witness gave evidence that in the investigation conducted by Mr McCorry, comments had been made in relation to the failure by the applicant to cooperate with the investigation. The witness formed a view that in the investigation conducted the report stated that the applicant did not cooperate with the investigation when in fact counsel for the applicant had sent responses on behalf of the applicant. The witness gave evidence that the respondent denied receiving the responses and was then asked to revise the report. This request was refused and when making his decision the witness considered this was an irrelevant issue insofar as whether the improvement notice had been complied with. The witness’s concern was that at that point in time that the report had been finalised and steps were taken to terminate the applicant while the improvement notice was still under review. In cross examination the witness confirmed that he had no personal or private purpose in assisting the applicant.
Mr McCorry submitted to the Commission:
my argument in relation to Mr Powell’s evidence is that – that the – simply that the improvement notice was improperly issued in an excess of power and therefore should be completely disregarded, at least so far as this matter is concerned.
(ts 96)
In cross-examination the witness identified he had been a WorkSafe Inspector since 1994 some 17 years and had worked in the occupational health and safety field since 1984. The witness gave evidence he had a Bachelor’s Degree in Psychology and a Graduate Diploma in Organisational Psychology. The witness was asked whether he had taken part in any courses in conducting investigations to which he answered in the negative.
The witness gave evidence that at the time he formed the opinion the respondent was contravening the OSH Act he had received a copy of the report from Mrs Green herself, the letters of complaint that had been made against Ms Wood, and the copies of the witness statements that had been taken. Having received that information he had cross-referenced quotes with the various statements. The witness gave evidence that he had also spoken with Ms Bramley who had reached the view that she had been given the impression it was just information for the board’s records. To the witness it appeared that the complaint had been asked for by the respondent. The witness gave evidence that he had spoken to another subordinate of Ms Wood who in fact was not interviewed Ms Narelle Jenks and her view was she did not have any problems with the applicant.
The witness gave evidence that he formed the opinion that the respondent was contravening the particular section, having regard for the Code of practice in s 7.2 where it says:
In situations where workers complain of seemingly trivial examples of bullying behaviours employers should be aware that this might be indicative of more complex bullying behaviours at the workplace.
Given the bullying allegations that had already been made by Ms Wood the witness gave evidence that it appeared the bullying allegations that had been made by Ms Wood went much deeper than those already complained about when:
looking at the investigation undertaken by Mrs Green;
the way in which that report was generated; and
terms of reference.
The witness gave evidence that overall, in his opinion, the investigation was quite discerning in giving a quite biased view of Ms Wood without considering any indication of deficiencies in the supervision by Ms Ham. To consider the correspondence from Mr McCorry suggesting that the complaint by the applicant would be investigated in the future appeared to the witness and thereby WorkSafe to be treating the two, namely Ms Ham and Ms Wood as very separate issues. The witness gave evidence that the correspondence from the respondent to Ms Wood the next day requesting the applicant to show just cause why she should not be terminated, indicated there was no intent on the part of the respondent to properly investigate all of the issues.
The witness was asked to answer whether he understood the respondent would be carrying out an investigation of Ms Ham’s complaint to which he answered yes he did understand that but as separate issues.
The witness gave evidence that he did not exceed his powers in issuing the improvement notice and furthermore he had reasonable grounds for forming the opinion that there was a breach of s 23K of the OSH Act.
I put it to you that you were not acting as an impartial public servant carrying out a statutory duty but actually trying to assist Ms Wood in her claims against the respondent? --- I would deny that.
You provided advice to Ms Wood about how to respond to queries raised by the respondent about her behaviour? --- That is correct.
You provided advice to her about a defence to the allegations made out made against her? --- It is quite common in bullying cases.
(ts 69)
The witness gave evidence that in relation to matters concerning bullying:
It is quite common that there’s a need to deal with emotion with the employees involved. It is quite common too that issues raised concerning performance with the employees. It is not handled by the employer in an appropriate manner the employee then gets it into their heads that they’re in fact being bullied. They then ignore the messages that the employer is trying to give to them, which then escalates the issue. So in those situations the advice I give to the employees is that you need to accept the feedback.
(ts 70)
The witness gave evidence that in forming his opinion regarding the breach of the Code of practice, the breach was covert bullying. The witness identified that he did not see Mr McCorry’s report until after the improvement issue was issued.
The witness gave evidence that he provided information to Ms Wood that afternoon in response to a request for information in accordance with the provisions of the OSH Act. The witness gave evidence his role had yet to be concluded following the review by Ms Lyhne given he was still concerned as to whether the notice had in fact been complied with.
In re-examination the witness gave evidence that he received significant resistance to obtaining information including limiting documents to those of the public nature although after some discussion a copy of Mrs Green’s report with the names blanked out was provided. The witness gave evidence that Mr McCorry refused to provide copies of the original complaints and the witness statements advising that he was not investigating the complaints against Ms Wood only those against Ms Ham.
Ms Lee Madden gave evidence as a housing support worker with homelessness support services. The witness was employed by the respondent in a voluntary capacity as the project officer from July 2005 to the time of her resignation in March 2006. The witness had previously worked in a voluntary capacity preparing grant submissions for the respondent in support for a migrant resource centre.
The witness gave evidence that during her term of employment with the respondent she was subjected to prejudicial remarks, isolated, humiliated and bullied in particular by Ms Ham and a member of the board, Ms Robinson. Rather than continuing to work in such a systematically abusive, bullying, demeaning and stressful environment the witness resigned from her employment.
The witness gave evidence that WorkSafe investigated and found that the respondent had no policies or procedures relating to bullying in addition to there being no grievance mechanism and instructed the respondent to comply.
Ms Narelle Marie Jenks commenced work with the respondent as a casual crèche worker in February 2009. The witness gave evidence that she had a good working relationship with the applicant and found her to be an excellent supervisor.
The witness gave evidence she raised with the applicant the issue of incorrect wages having been paid by the respondent. The witness was called into a back room by the respondent and asked whether she had contacted the government department or whether she had been encouraged to do so by Ms Woods. The witness was offered a cheque for underpayment for casual loading and was requested to sign a letter of confidentiality. The witness received a cheque covering the underpayment. The witness felt her working hours were reduced as a result of her querying her pay. The witness gave evidence she later wrote a letter of complaint to the board regarding her reduction of hours at the crèche however received no response.
The witness was aware of there was an inquiry going on into issues relating to bullying in the workplace. She was never questioned regarding these issues however there were periodical meetings where management would speak to the staff as a group. The witness never expressed her feelings at the workplace because she felt she would be the next person in line ‘who gets into trouble’ (ts 112). The witness gave evidence that she felt she was being bullied by Ms Ham in particular, her sly approach to herself in the workplace. In response to a question from the Commissioner the witness expressed she was fearful of giving evidence.
In cross-examination the witness gave evidence that Ms Ham had bullied her on a number of occasions. The witness was asked whether she was aware there was an inquiry going on into issues relating to bullying in her workplace to which she replied in the affirmative. In relation to that inquiry the witness was asked whether at any stage she was questioned to which she responded in the negative. The witness gave evidence that there were meetings of staff where Ms Ireland would speak to the staff as a group however she would not express a view because she felt she would be the next person in line.
Ms Kylie Elizabeth Wood gave evidence she began working with the respondent in May 2003. She gave evidence she was employed as the crèche supervisor for 17 hours per week. In that capacity her role was to coordinate and supervise a team in all areas of the crèche.
The witness gave evidence she was employed on a permanent part–time basis until she went on maternity leave in November 2006. The witness gave evidence of her single performance appraisal with the centre manager Ms Ham and received a positive report.
In December 2008 the witness gave evidence she received a performance appraisal from Ms Ham and was commended on her interpersonal skills:
Kylie gets on well with the staff is supportive of career development (2 have completed a Diploma).
The witness gave evidence that in July 2009 she queried Ms Ham about wages and was told that employees were paid according to the award. In March 2010 the witness gave evidence Ms Jenks considered pay rates may be incorrect as crèche workers were being underpaid because they were not receiving the casual loading and according to Wageline they were not even receiving the minimum adult award rate. The witness gave evidence she explained that Ms Ham had informed her they were correct however as she was the supervisor she followed it up for her and other crèche staff.
The witness, in her statement, said Ms Ham on her return from holidays took the witness aside and asked if the applicant had intended to go behind Ms Ham’s back. The witness gave evidence she was asked not to mention the issue to any crèche staff until the matter was resolved at it may have quite an impact on the respondent, particularly given that they are a non-profit organisation.
The witness in her statement gave evidence from that point leading up to 10 May 2010 that a number of unpleasant matters began to occur undermining the witness as a supervisor. The witness began to feel isolated and was unable to talk to individuals about what was happening in the workplace. During this period the witness gave evidence crèche staff were taken away individually by Ms Ham, given cheques and made to sign a back pay agreement. At no stage did a staff meeting take place. The witness gave evidence through her statement that she did not receive any back pay as she was informed she was not owed any.
On 3 May 2010 at 9.45 am Ms Ham approached the witness and again talked quite aggressively in relation to her conduct. The witness gave evidence that one of the issues that had come to light was that she had left work on Thursday, 29 April 2010 upset. Ms Ham then went on to accuse her of harassing a staff member about how much the amount of back pay they had received.
The witness through her written statement gave evidence that Ms Ham was giving me a beneficial warning without actually stating what the warning was for:
and bought up something I regretfully said in March of 2009. A comment I made and never aimed at anyone, however I apologized for it immediately. It was never spoken of until now.
(exhibit A11 [11])
The witness gave evidence that it was her view that the work environment which was once a team that worked well together had of late become unpleasant and staff were no longer free to talk to each other.
The witness gave evidence that she attended a meeting on 10 May 2010 with Ms Ireland, Ms Dayman, Ms Taylor and Ms Ham. The witness attended with her support person Ms Williams and entered the room at 9.30 am. The witness gave evidence that she would like the opportunity to speak to the board members alone without Ms Ham and she identified that she was feeling vulnerable and intimidated by Ms Ham's presence. The witness read from her notes and after a period of time Ms Ireland asked the applicant's support person to leave the room.
The witness gave evidence she was informed by Ms Ireland not to talk to staff about work related issues. At 2.00 pm that day Ms Ham attended the crèche and advised the witness that she was to do no more than 20 hours per week.
On 21 May 2010 the witness gave evidence an extraordinary board meeting took place. The witness gave evidence that Ms Ireland entered the crèche room and asked the witness to step out of the room. The witness was taken into the meeting room with Ms Ham and Ms Ireland and was handed letter and asked to read it at that point:
Back Pay Further to our conversation on Monday May 10th 2010 I would like to reiterate the following points that were not resolved:
Allegation of harassment of staff
Request the back pay
Contract was an illegal document, returned from maternity on a different level and needs to be rectified
A request to go back to being paid as a part–time employee
I would like to draw your attention to the potential consequences of any formal written complaint which have been made against you with regard to your actions. You need to understand that Rainbow Coast Neighbourhood Centre Inc Board of Management have decided to undertake and are obliged to deal with any formal complaint as part of our grievance process. A full independent investigation into the facts may result in disciplinary action being taken.
It cannot be stressed the seriousness of the issues raised, particularly in today's workplace and in light of the huge amount of workplace legislation which deals with these matters.
We have received written complaints regarding your inappropriate behaviour initiated at the workplace. You are hereby formally advised that a formal independent investigation will be arranged with an external investigator as soon as possible. As of today you are stood down on full pay as per your contract of 17 hrs per week until the completion of the investigation.
Once the report has been provided to the Board of Management they will be in an informed position to make their decisions going forward.
You will be expected to cooperate with the investigation and a time and date will be advised to you.
Yours Faithfully
Karen Ireland Chairperson
(exhibit A11 tab 9)
The witness gave evidence that on 24 May 2010 she made contact with the Employment Law Centre and was advised to request the copies of the written complaints made against her. Accordingly, correspondence was forwarded to the board on 25 May 2010 (exhibit A11 tab 10) from the witness asking for copies of the written complaints. Contact was also made with WorkSafe.
The witness gave evidence that on 27 May 2010 she received a telephone call from Ms Ireland informing her she could not be shown the written complaints as those involved who had made the complaints did not want the applicant to see them. Ms Ireland informed the witness she needed to protect them. Ms Ireland informed the witness that Mrs Green from Workwise would be speaking with the witness about how she was feeling intimidated and undermined by Ms Ham.
The witness outlined that Ms Ireland informed the witness that the back pay matter was another issue that would be discussed at a later date. The witness informed Ms Ireland that the back pay issue had never been discussed with her, a matter which Ms Ireland disputed. The witness gave evidence that she attended the investigation with Mrs Green and was informed her support person Ms Jenks was to remain silent. The witness gave evidence she was reduced to tears and when she tried to raise how she was being treated, particularly when she spoke to the three board members Mrs Green raised that was because complaints were being made against her.
The witness in her statement could not appreciate how raising matters relating to pay could cause so much trouble. When in Perth the witness contacted WorkSafe who suggested she contact her doctor and receive medical attention and even receive workers compensation:
They also said that I needed to formally write a complaint about how my manager had bullied me and include a list that included lawful requests of employer/employee information.
(exhibit A11 [36])
The witness gave evidence she wrote a letter to Ms Ireland as chair of the board on 1 June 2010 requesting a copy of all written complaints made against the witness. In that same correspondence the witness raised the issue of alleged workplace bullying by Ms Ham and enclosed examples of the bullying that had been carried out by Ms Ham. Further, the witness requested copies of her pay records that had been filled out over the period of her employment with the respondent in addition to a copy of the respondent’s grievance procedure and workplace bullying policies.
The witness in her statement gave evidence that she received two letters, one dated 14 June 2010 from Mr McCorry of Labourline advising:
he was now representing RCNC, acknowledging the letter I sent on the 1st June (Document 13). Amongst other things he said that he was conducting ‘a review of the entire matter’. It claimed they needed more details for insurance purposes. The second dated 15th June was from Karen Ireland demanding that I ‘Show Just Cause’ to the board in writing within three days so I wasn’t fired (Document 14). The two letters put together were really confusing.
(exhibit A11 [37])
The witness gave evidence that there were no policies or procedures available to her at the time and to the best of her knowledge there were none available in the office at all. At no stage did Mr McCorry inform the witness that he had officially commenced an investigation into the bullying issues between her and Ms Ham. The witness declared she had never been interviewed by him or met him.
The witness gave evidence in her statement that she received a letter of termination dated 18 September 2010:
The Rainbow Coast Neighbourhood Centre’s Board of Management has reviewed all evidence of the report of the investigation conducted by Mrs. Green and the subsequent review by Graham McCorry. We are satisfied with the investigation conducted and that the complaints did occur and the conduct complained of did occur.
Although we feel the conduct was not actuated by malice or any intent to cause distress or adversely affect employees in question. We agree with Graham McCorry’s view that arose from characteristics personal to your need or desire to control your working environment, a possessive attitude towards staff under your supervision and an ability to appreciate how your actions will be perceived.
We make a decision based on the all material that has been provided to us throughout the investigations and we have considered this carefully taking into consideration the below points:
Due to the complaining employees’ claims that they are fearful of you returning to the workplace, without any resolution of your behavioural problems.
You have not demonstrated an understanding acceptance of the impact of your behaviour on others limiting the possibility of your being able to make the necessary changes to be accepted back in the workplace
You lodged a serious complaint against your manager Ms Ham and therefore failed to assist us to carry out the investigation. We no longer have any trust and confidence in you.
We have not taken this decision lightly and discussed at length all implications to all staff, manager and yourself.
Taking all the above into consideration we have decided to terminate your employment.
You are hereby given four weeks notice of termination. You are not required to work out the period of notice.
Yours faithfully,
Karen Ireland
Chairperson
Rainbow Coast Neighbourhood Centre
(exhibit R1 tab 39)
The witness wrote on the termination correspondence that she received the letter on Friday, 24 September 2010 at 4:00 pm some nine days after the conclusion of the investigation into the bullying complaint made against Ms Ham.
In cross-examination Mr McCorry dealt with the issues associated with the ‘king hit’. At the time she did not know what a ‘king hit’ was and further if it was such a problem why was the witness not given a verbal warning at the time. Additionally the witness gave evidence and asked why was she never spoken to about the matter. This issue occurred in March 2009.
The witness gave evidence that before and after her termination by the respondent she was employed at Satin and Lace. She worked through to 19 March 2011 and confirmed that at the end of the financial year received a PAYG statement.
The witness in responding to Mrs Green’s report asked the question why weren’t all the staff interviewed. The witness was then asked to investigate the written investigation report by Labourline (exhibit A11 tab 23), into the applicant's complaint against Ms Ham. The witness was asked in particular to read a section however the witness gave evidence that Mr Fleming, the applicant's solicitor did not receive any correspondence to respond to from Mr McCorry between 10 and 22 August 2010.
The witness gave evidence she did not work through the school holidays with the exception of an extra day prior to the holidays concluding to prepare for term time. During October school holidays in 2010 the witness gave evidence she worked at Wanslea on a casual basis and during that period earned $1,241 gross.
