Kylie Wood -V- rainbow Coast Neighbourhood Centre Inc



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Procedural Fairness


  1. In this matter the Commission finds that procedural fairness was not fully afforded in the case of the dismissal of the applicant. There were serious inadequacies in respect of the investigations undertaken by the respondent into the alleged bullying by the applicant and by Ms Ham. In the Commission's view:

    the respondent failed to take into account the applicant’s previous positive behaviour and further, the respondent failed to in any thoughtful way warn the applicant;

    the investigation of alleged bullying by the applicant and by Ms Ham were separated into two separate investigations by the respondent contrary to the advice of WorkSafe ((exhibit R2, tab 27b, p2);

    the complaints made by three persons regarding alleged bullying by the applicant had not been made available to the applicant even after a written request had been made by the applicant to the respondent;

    in the view of Mr Powell, ‘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’ (exhibit R2, tab 27b, p 2).

    four other employees from the crèche were not questioned by Mrs Green (the first investigation);

    the respondent refused to allow natural justice to be generally considered to be applied to the applicant's rights in the first investigation (contrary to the Code of practice of Violence, aggression and bullying at work);

    the decision to commence the process to terminate the applicant had already been made by the respondent during the first investigation; or

    at the very least the request for the applicant to show just cause why she ought not be terminated had already been made by the respondent.


  2. Having regard for the Code of practice of Violence, aggression and bullying at work issued by the Commission for Occupational Safety and Health, in particular s 10.3, natural justice is generally considered to include the rights to:

  • be fully informed of the complaint;

  • be fully informed about the complaint process;

  • reply in full to the complaint;

  • be considered innocent until proven guilty;

  • representation by a person of his or her choice;

  • maintenance of confidentiality; and

  • be informed of any rights of appeal.

  1. The Commission finds that as well as the matters previously listed the applicant did not receive natural justice in accordance with s 10.3 of the Code of practice of Violence, aggression and bullying at work. Ultimately each case will turn on its facts but sound and sensitive management of the situation is likely not only to minimise the respondent's exposure but also deal with the employees’ concerns promptly, Hill v Minister for Local Government Territories and Roads PR946017 26 April 2004 Lacy SDP.

  2. In making my decision in this aspect of my reasons I have had regard for the decisions in the Shire of Esperance v Mouritz [1990] 71 WAIG 891; Byrne v Australian Airlines Ltd [1995] 185 CLR 410 per Brennan CJ, Dawson and Toohey JJ and at 466 per McHugh and Gummow JJ).

Condonation


  1. When referring to the issue of condonation it is submitted on behalf of the applicant’s advocate that in relation to the ‘king hit’ incident it is not open to the respondent to simply rely upon the allegation because the respondent failed to act upon this matter for some time and continued to regard the employment as still being on foot. It is contended therefore it is far too late to rely upon the issue as the basis for regarding the contract as at an end. I refer to a decision of the then Smith C in Smith v Saracen Management Pty Limited regarding the relevant principle in respect to condonation as stated by Blackburn J in Phillips v Foxall (1872) 7 LRQB 666, 680:

    Now the law gives the master the right to terminate the employment of a servant on his discovering that the servant is guilty of fraud. He is not bound to dismiss him and if he elects after knowledge of the fraud to continue him in his service he cannot at any subsequent time dismiss him on account of that which he has waived or condoned.



  2. In McCasker v Darling Downs Co-operative Bacon Association Ltd (1998) 25 IR 107 Ryan J at 114 after setting out the passage referred to above by Blackburn J then went on to say the effect of the principle of condonation is that where an employer continues an employee in his employment after the act of disobedience he is unable to subsequently dismiss him solely on the ground of this act of disobedience. However he then observed:

    It remained however as something which together with other subsequent matters might constitute a good ground for summary dismissal. I adopt with respect the remarks of Sheppard J in John Lysaght (Australia) Ltd v Federated Iron Workers' Association; Re York (1972) AILR 517 where he said:



    It is no doubt possible for the company to waive particular acts of misconduct that would otherwise have justified dismissal without notice. These particular acts could not subsequently be used for this purpose once the decision was made not to rely on them. The act of misconduct however does not then disappear and become irrelevant when further misconduct occurs. It remains and makes up the continuing history and record of a man's service. That record may always be referred to for the purpose for which the company now points to it and the presence of incidents such as I have described will always be a relevant factor to be weighed in the balance by an employer when he comes to consider whether or not a further breach or other act of misconduct should not bring about a dismissal.

  3. The Commission finds that following the ‘king hit’ incident where the respondent continued to employee the applicant, the act did not vanish and become irrelevant for the purpose of the applicant's ongoing record of service. Having regard for the principle in Phillips v Foxall together with the remarks from John Lysaght (Australia) Ltd v Federated Iron Workers' Association; Re York the Commission is of the view such actions will always be a relevant factor to be weighed by the respondent.

  4. Having made my findings with respect to the incident I consider it necessary to suggest it is passing strange to make such a comment in the way the applicant did, particularly in the environment of a crèche. The Commission also finds it odd that seemingly the applicant was not warned at the time, yet prior to the applicant’s termination much was made of the event, an event that had occurred back in 2009 which seems in the Commission’s view to be masking what was the real issue, that relating to back pay. While the Commission accepts the applicant was not dismissed for misconduct there certainly were no warnings in this case which, for a long serving employee, were unusual.

Compensation for Loss


  1. There are no hard and fast rules for determining compensation in matters of this nature, other than that the Commission is to fix compensation which it thinks fair and equitable in the circumstances as per Robe River Iron Associates v The Association of Draughting, Supervisory and Technical Employees of Western Australia [1987] 68 WAIG 11. Interestingly s 74 of the United Kingdom Employment Protection (Consolidation) Act 1978, commands the employment tribunals who award general compensation for unfair dismissals to award ‘such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal’. In respect of that, the English Court of Appeal recently said that the task of the tribunal was ‘to compensate and compensate fairly but not award a bonus’ see Babcock Fata Ltd v Addison (1987) IRLR 173. In so doing, the tribunal was to take into account monies paid in lieu of notice. Assuming, as I must, that the Commission has authority to award general compensation for unfair dismissals I would have thought that the same approach ought to be adopted under the legislation in this State. Indeed, the Full Bench of the Commission has said as much in Max Winkless Pty Ltd v Bell (1986) 66 WAIG 847.

  2. The Commission finds relevant issues for consideration:

    the applicant was employed by the respondent as a crèche supervisor from May 2003 until 18 September 2010;

    consistent with the statement of agreed facts the applicant’s employment was on a permanent basis until November 2006 and thereafter on a casual basis of 17 hours per week from 12 October 2007 onwards;

    however, the Commission finds that the applicant worked more than 20 hours per week during the period following 2007 given the direction from the written statement from the applicant and the direction from Ms Ham (see exhibit A11 [24]) where the applicant was directed to limit her hours to 20 per week;



the applicant’s award rate of pay was $27.74 per hour - Children's Program Coordinator - Family Centre Step VII) at the time of her termination (inclusive of casual loading);

    the applicant’s part-time earnings at Satin and Lace totalled $5,445 gross between 18 September 2010 and 19 March 2011; and

    the applicant’s earnings from Wanslea during the October school holidays in 2010 on a casual basis was $1,241 gross (ts 226).



  1. The respondent objects to reinstatement. Not only is the passage of time such that the breakdown in the relationship between the respondent and the applicant is such that in the Commission’s view reinstatement is impracticable as indeed re-employment is impracticable.

  2. The Commission finds it is necessary to have regard for:

    the harshness of the dismissal;

    the extensive service of the applicant with the respondent; and

    the seemingly stressful environment without regard for the occupational health and safety needs of the applicant.



  3. In having regard for the terms of the Act and in exercising my discretion the Commission considers a payment of 17 weeks compensation of 20 hours per week with casual loading (at $27.74 per hour) ought to be paid by the respondent to the applicant. In determining the rate of pay I have regard for the calculations pursuant to the award as it applied at the time of the applicant’s termination, (per hour - $23.12) plus casual loading (per hour - $27.74).

  4. It was submitted by the respondent that the applicant failed in the circumstances to mitigate her loss. The Commission finds there was some confusion in the evidence of the applicant and the submissions of Mr McCorry in this regard. The Commission has considered the submissions and evidence of both the applicant and respondent and is of the view that there was no failure on the part of the applicant to mitigate any loss or damage arising from her termination of employment. In making my decision the Commission has also had regard for Bogunovich v Bayside Western Australia Pty Ltd [1998]) 78 WAIG 3635 and further the amended provisions of s 23A the Act, in particular s 23A(6).

Compensation for Injury


  1. In these proceedings it is necessary to consider the question of injury. Section 23A of the Act provides that an assessment of compensation for an unfair dismissal may include recognition for a component for injury sustained. The authorities indicate some caution must be must be used as there is no doubt there is an element of pain and suffering in every dismissal.

  2. In this matter the dismissal of the applicant was extremely distressing to her. There was evidence that the applicant was shocked, upset and the Commission finds that her termination was more than a minor setback. Furthermore, it was aggravated by the manner in which the respondent failed to consider the applicant's needs. It is the Commission's view that the respondent failed to carry out an appropriate investigation into the applicant's claims against Ms Ham.

  3. The applicant, in addition to the matters I have described, suffered humiliation to the extent that on an ongoing basis she was distressed. I consider that in all the circumstances she ought to be awarded compensation for injury. In the decision of the Full Bench, Sharkey P in Bone Densitometry Australia Pty Ltd trading as Perth Bone Densitometry v Lenny [2005] WAIRC 02081 [2005] 85 WAIG 2981 considered compensation for injury caused by unfair dismissal. The Full Bench in that decision had regard for the decision of Coleman CC and Smith C in AWI Administration Services Pty Ltd v Birnie [2001] WAIRC 04015, [2001] 81 WAIG 2849, 2862 when they said:

    ‘it is accepted that there is an element of distress associated with almost all employer initiated terminations of employment. For injury to be recognised by way of compensation and thereby fall outside the limits which can be a taken to have normally been associated with a harsh, oppressive or unfair dismissal there needs to be evidence that loss of dignity, anxiety, humiliation, stress or nervous shock has been sustained. Injury embraces the actual harm done to an employee by the unfair dismissal. It comprehends ‘all manner of wrongs’ including being treated with callousness (Capel v Cadbury Schweppes Australia Limited (1998) 78 WAIG 299). The injury may be manifested by the detrimental impact on the physical or emotional wellbeing of the person whose services were terminated. However dismissals will impact on varying degrees on individuals and while the needs for professional care maybe evidence of that impact, this will not necessarily always be the case in order to establish the causal link between the termination of employment and the injury. While it is necessary to exercise a degree of caution to ensure that compensation is confined to reasonable limits (Timms v Phillips Engineering Pty Ltd (1977) 70 WAIG 1318 and Burazin v Blacktown City Guardian Pty Ltd 142 ALR 144) that is not to say that every claim injury necessarily involves expert evidence of emotional trauma.

    1 The circumstances in which the dismissal from employment has been effected may be sufficient to demonstrate the injury which is experienced. Situations where an employee is locked out of the workplace or is escorted from the premises, or the termination has been conducted in full view of other staff are examples of callous treatment justifying recognition for compensation for injury (Lynham v Lataga Pty Ltd (2001) 81 WAIG 986).

    2 However, the Commission is not able to adjust the measure of compensation according to the opinion of the employer or employee or of the conduct of the respective parties (Capewell v Cadbury Schweppes Australia Limited (op cit)).



  4. The Commission finds that the actual harm done to the applicant in the process of termination in this matter and, in particular, the insensitivity applied by the respondent in:

    failing to appropriately investigate the applicant’s bullying claim against Ms Ham;

    failing to simultaneously investigate the pay complaint against the applicant and the bullying claim against Ms Ham as suggested by WorkSafe;

    instructing at least one of the employees, Ms Bramley, to list the issues that occurred in relation to the pay matter - thereby soliciting information and referring to it as ‘a complaint’;

    being quite selective in setting up the investigation against the applicant (of approximately seven employees who worked with the applicant, only two of whom were interviewed);

    failing to provide the applicant of the complaints made against her, to fully inform the applicant about the complaint process and importantly for the applicant to be considered innocent until proven guilty - several aspects of clause 10.3 of the Code of practice of Violence, aggression and bullying at work 2010, Commission for Occupational Safety and Health; and

    requesting information as part of the investigation carried out by Mrs Green from Ms Lampard, a subordinate of the applicant who did not complain in regards the pay issue.


  5. This has had a detrimental impact on the applicant's both physical and emotional well-being causing callousness. While the Commissioner finds the respondent did have regard for the small town reputation of the applicant, the termination has affected the applicant to a significant degree and has involved, in the Commission’s view, a crucial amount of emotional trauma to the applicant. Accordingly, the Commission, having regard for previous decisions where compensation for injury has been awarded since the Full Bench decision of Bone Densitometry Australia and Lenny, some seven years ago, finds that the applicant Ms Wood is owed $2,500 for compensation for injury.

Minute


  1. Having regard for all of the material before the Commission the application is to be determined by a minute reflecting the reasons for decision. In all the circumstances I am satisfied that the applicant was unfairly dismissed. Clearly, in the Commission’s view, following submissions from the respondent and more latterly from the applicant, neither reinstatement nor re-employment is practicable.

  2. The Commission is satisfied the applicant has mitigated her loss prior to giving birth to her second child on 9 April 2011 (ts 228).

  3. The Commission requests written submissions from the parties within a seven working day period on the total income for compensation for loss the applicant would have received had she continued to be employed from her date of termination/dismissal as of 18 September 2010, for 17 weeks excluding (my own underlining):

    the applicant’s part time earnings received from Satin and Lace (19 September 2010 to until 19 March 2011) following the applicant’s termination, totalling $5,445 gross;

    the applicant’s earnings received during the month of October 2010 at Wanslea, totalling $1,241 gross (ts 226); and

    the four weeks payment earnings received by the applicant in lieu of notice at 20 hours per week at $27.74 per hour (casual rate) in accordance with the award rate of pay Children's Program Coordinator - Family Centre Step VII, when the applicant was terminated.



  4. Furthermore, the Commission requests the parties include (my own underlining) $2,500 for compensation for injury in the written submissions.

  5. Having regard for the provisions of s 23A of the Act the amount ordered to be paid as compensation for loss and/injury caused by the unfair dismissal is not to exceed six months remuneration of the applicant.




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