Kylie Wood -V- rainbow Coast Neighbourhood Centre Inc

Respondent’s Evidence

135. 
     Ms Maxine Ruth Elizabeth Tuppley gave evidence as a shop proprietor who employed the applicant as a shop assistant at Satin and Lace on a casual basis from 21 August 2010. Ms Tuppley gave evidence by way of producing a PAYG payment summary indicating that the applicant’s earnings for the period 21 August 2010 to 19 March 2011 totalled $6,313 gross.
     
136. 
     From 19 September 2010 until 19 March 2011, the applicant earned $5,445 gross. The pattern associated with her work was that the applicant would work for a couple of hours on Wednesdays, occasionally on a Friday depending on whether the applicant was available and during the period specified there were four Thursdays. As indicated the witness gave evidence most Saturdays were worked.
     
137. 
     In response to a question from Mr McCorry the witness was asked whether she spoke with the applicant when she received the summons. The witness gave evidence that she informed the applicant she had been asked by the respondent to sign an affidavit that she was quite happy to produce the evidence, and that was why she was here in the Commission.
     
138. 
     Ms Karen Ireland gave evidence for the respondent (ts 127; 163). During the period concerned Ms Ireland was chairman of the board of the respondent. At the time of the applicant’s termination of the witness gave evidence there were approximately 20 employees.
     
139. 
     The witness gave evidence that at the time the respondent received the WorkSafe improvement notice the board members were notified sometime later on or about the meeting of 14 June 2010.
     
140. 
     The witness gave evidence that with respect to the letters of complaint made to Mrs Green she was not aware whether the applicant had seen the letters. The witness gave evidence that she did not consider whether it was reasonable or unreasonable whether the applicant was provided copies of the letters of complaint or not.
     
141. 
     On an email (exhibit R1 tab 14) between the witness and Mr McCorry it says:

     She is entitled to access her records and have copies but it is questionable whether a State Industrial Inspector may do so if you are a constitutional corporation. I recommend that you provide them since she would also have the right of access under the Federal Act.

     
     
142. 
     The witness gave evidence she did not provide the complaints that were made against the applicant to WorkSafe however there was no reason for anyone seeing the documents to see them.
     
143. 
     The witness was asked by the Commissioner was she was aware that the Code of practice requires matters of bullying in this state to be dealt with on the grounds of natural justice which she replied in the affirmative. The witness gave evidence however that she received the advice from Mr McCorry that they were not required to follow the principles of natural justice.
     
144. 
     The witness gave evidence in relation to the content of the applicant's letter dated 1 June 2010 the board were not aware of the claim by the applicant that Ms Ham had bullied her as the witness agreed that she had been selective in excluding a section of the letter, on advice from Mr McCorry and Mrs Green.
     
145. 
     The witness at this stage gave evidence the respondent had already asked the applicant to show just cause why she should not be terminated.
     
146. 
     In relation to the event that allegedly occurred in 2009 the witness gave evidence she was unaware of it until it was brought to light in 2010.
     
147. 
     In explaining what goes on at the centre the witness gave evidence that there were a number of community-based parenting programmes who use the centre.
     
148. 
     The witness gave evidence that in reading the applicant's letter dated 1 June 2010 that the board was not aware of the claim that Ms Ham had allegedly bullied and agreed that she was quite selective in terms of the information provided to the board. The witness gave evidence that she had been advised by Mr McCorry and by Mrs Green to deal with one bullying matter first and then deal with the second bullying allegation.
     
149. 
     The witness gave evidence that at the time the respondent received the WorkSafe improvement notice board members were notified sometime later on or about the meeting of 14 June 2010.
     
150. 
     In cross-examination the witness responded:

     My understanding is that showing just cause gives the person the opportunity to explain why they should not be terminated, yes.

     (ts 139)
     

151. 
     The witness gave evidence that in relation to complaints the applicant was given a verbal warning and then there were written complaints. The witness gave evidence there was a denial by the applicant that the incidents had occurred and the respondent was left with those denials and three people saying that the incidents had occurred. The witness gave evidence the applicant was advised she was coming for a performance appraisal which did not necessitate a support person however the performance appraisal did not occur as there was an issue resolution process around the complaints that the respondent had had involving three people.
     
152. 
     In cross-examination the witness gave evidence that the complaints from employees and the complaint that was solicited by the respondent was precipitated by the back pay issue and not the issue in relation to the ‘king hit’ comment made by the applicant:

     --- it just seemed to me that this issue wasn't an issue until 13 months after the event and suddenly it became an issue. So it wasn't really that issue ---? --- You mean the ---

     --- the king hit? – – – No, no.

     It was the back pay issue that started stirring things. Would that be a fair comment? – Yes

     (ts 151)
     

153. 
     In answer to a question from the Commissioner where Ms Ireland was asked whether four people, namely Ms Karen Ireland, Ms Jill Robinson, Ms Claire Cummins and Ms Mary-Anne O'Donnell, comprised a quorum at the board meeting of 23 September 2010 (exhibit R1 tab 38) the witness answered in the affirmative.
     
154. 
     The witness gave evidence that an improvement notice was issued and was subsequently affirmed indicating a breach of statute in the respondent’s workplace. Relevant correspondence relating to the forthcoming applicant’s termination was that of exhibit R1 tab 25b forwarded to Mr David Fleming which read as follows:

     Dear Sir
     

     
     Re: KYLIE WOOD & RAINBOW COAST NEIGHBOURHOOD CENTRE INC

     I refer to the above matter and my letters of 19 July 2010 and 10 August 2010. I have had no response to either letter, or advice that Ms Wood does not wish to respond to the matters raised in those letters. I can only draw the conclusion that any response would not have been of assistance to her.

     In the absence of any input from Ms Wood I have reached my conclusions based on the material collected by Mrs Green and the report of her investigation, information provided by the Rainbow Coast Neighbourhood Centre Inc (RCNC) and employees, Ms Wood’s written allegations against Ms Ham and the response of Ms Ham to those allegations

     In relation to the allegations of bullying made against Ms Wood, while I have reservations about the correctness of Worksafe WA’s view that it is the effect of the behaviour complained about that is the determinant of whether or not bullying has occurred and intent of the perpetrator is not material, the evidence establishes that the employees of RCNC who made the complaints are afraid of your client in the workplace. Causing fear in the workplace is not acceptable.

     If only one employee had such fears, it might be arguable that the employee is particularly an unreasonably sensitive, but when four of them expressed similar concerns, then absent any conspiracy to injure Ms Wood in her employment, she must be considered responsible for creating that fear. There has been no suggestion of or any evidence to indicate the existence of a conspiracy to injure her in her employment.

     I do not consider anything in Ms Wood’s behaviour to have been motivated by malice or even intentional. From the evidence, it would appear she has a particularly forceful personality, a proprietary attitude towards fellow employees and an inability to perceive the effect of her actions and attitude on others and that it is the combination of these characteristics that is responsible for what has occurred.

     Whether or not the result of Ms Wood’s behaviour and attitude amounts at law to bullying, in my view the existence of the fear in other employees and her responsibility of causing it, would justify termination of her employment. I do not consider mediation between Ms Wood and the affected employees or any remedial or behaviour modifying actions that might be undertaken by Ms Wood would be effective in overcoming the problem for which she is responsible.

     In relation to Ms Wood’s complaint that Ms Ham bullied her, while I am satisfied that a sharp exchange of words did occur on one occasion, I am not persuaded that any of the allegations made by Ms Wood against Ms Hams have any substance or amount to bullying. I am also of the view that Ms Wood making the allegations in the circumstances in which they were made, is likely to be so destructive of the relationship of trust and confidence between an employer and employee that continuation of the relationship is not reasonably possible.

     I intend to recommend to RCNC that Ms Wood’s employment be terminated on notice: I do not consider summary dismissal with the attendant opprobrium that sort of termination attracts to be warranted.

     I am aware that Ms Wood and RCNC live and operate in a relatively small local environment where the termination of your employment is likely to be the subject of speculation and rumour. I will be recommending that RCNC say nothing about the reasons for the termination unless failing to do so would cause damage to its reputation. Ms Wood may wish to consider whether a resignation would do her reputation less harm than a dismissal for unspecified reasons.

     I will be making my recommendations to RCNC on 30 August 2010. Should you or Ms Wood’s wish to make any submission to me about my recommendations, please do so promptly.

     Yours faithfully

     Graham McCorry

     22 August 2000